Let's Ask ASQA - Week 7

The 'Let's Ask ASQA' series normally provides one question per week on a topic that either I or an industry stakeholder has asked me to ask on their behalf. This series is expected to go on for one year (52 Weeks). Normally, it is shared via video however, this week, I have been unwell and lost my voice.

In keeping with my promise and commitment to get out another question before the end of the week, while I have no physical voice, I can share it in an article. Therefore, please accept my sincere apologies for making you read instead of listen, but I guarantee it will be worth it.

Week 7:

There have been numerous announcements over the past 24-48 hours about various measures to close down what the media (and Ministers) are calling ‘Ghost Colleges’ and how ASQA would be '...given more powers and funding to crack down on these colleges.'  Like most reform in the sector, though, I can’t help but ask myself if this is not just another knee-jerk reaction to a media storm where attempts at reform lead us down the path of a vicious circle where history repeats itself.  In saying that, knee-jerk reactions are not what this week’s question is about; I can discuss those further in future articles. 

This week’s question is, however, importantly related to these announcements...

This week's question is not going to be without controversy, and, to be honest, I'd be surprised if we even got a reaction from ASQA...but there's no harm in trying. If nothing more, this article and this week's questions will, hopefully, demonstrate that a knee-jerk reaction is most likely what this is, and we'll shine a light on what, to an extent, can only be considered as misleading to the public.

“What role does ASQA believe it plays in the sector?

How is ASQA’s ‘apparent’ perception different to its legislated objective.”

The remainder of this article will explain how this question came about while also considering some of the current announcements being made about "...providing ASQA with further powers and closing down ghost colleges."  Some people may remember in 2019, along with an ex-ASQA employee, I was interviewed by the ABC in relation to the issue of 'Ghost Colleges'. As an ex-regulator with the Department of Education Services International and Higher Education Regulation branch during the CRICOS Rapid Review under The Hon. Julia Gillard AC, I'd say that it's a topic I am pretty familiar with.

I also seem to recall that in 2019, ASQA publicly disputed (accused of lying, in other words) the accuracy of Former High Court judge Ian Callinan, who, in conducting what became known as the 'Callinan Review', said that as per The Australian newspaper on 25 July 2019:

"...it had said, as quoted in a new report from Mr Callinan, that organised crime was reaping profits from bogus training colleges."

"In his 195-page statutory review of the Administrative Appeals Tribunal, released on Tuesday, Mr Callinan said the Australian Skills Quality Authority’s acting head had met him and explained how delays at the AAT were affecting the regulator’s work.

“She told me that delays in making decisions had repercussions beyond the AAT. This question came to me initially a few weeks ago when I was able to access a leaked report from the ‘Nixon Rapid Review’, also known as the ‘Rapid Review into the Exploitation of Australia’s Visa System’.  As far as I am aware, this section of the rapid review has not yet been published."

“ASQA was aware that organised crime was sometimes, perhaps even regularly, benefiting from counterfeit vocational training programs and colleges,” Mr Callinan said in his report.

An ASQA spokeswoman yesterday confirmed a meeting had taken place between the authority’s deputy commissioner, Saxon Rice, and Mr Callinan. But she denied Ms Rice, or any other ASQA official had made the comments, which are quoted on page 88 of the review. Ms Rice was unavailable to comment yesterday.."

There was, of course, a significant uproar then, just as there is now.

So, how does all of this relate to our question this week?

All of this is relevant because it paints a picture of how ASQA, as the National VET Regulator, perceives itself and its role and the lengths that it will go to to 'paint the picture it wants the public to see'.

Operation Inglenook was a multi-departmental Federal investigation established to conduct a rapid review of Australia's temporary migration system and the temporary visa holders, mostly sex workers, who. were being abused and exploited in the process. Stemming from the media report 'Trafficked', it became the impetus for what is called 'The Nixon Rapid Review'.

While many areas of concern were raised during Operation Inglenook and the Nixon Rapid Review, one thing that I just couldn’t take my focus away from was a finding that:

‘…ASQA’s primary focus is on achieving quality education outcomes rather than deterring and disrupting visa exploitation’. 

Now, I have to admit that this is not the first time that I have heard or read about ASQA having this perception of itself.  I’ve also read about it in ASQA's Regulatory Risk Priorities and even on its website.

While one might consider that there is nothing wrong with that perception of its role, and some might even celebrate that ASQA aspires to something so admirable, the reality is that ASQA’s legislated purpose and objectives as a statutory authority are far more significant. As an aside, ASQA's success rate at achieving its aspired goals is far from what could be considered satisfactory given the millions of dollars it receives in Commonwealth Government funding to perform its duties, in addition to now being a full cost-recovery regulator. 

The two key pieces of legislation that apply to ASQA as a statutory authority are the National Vocational Education and Regulation Act 2011 (Cth) (“NVR Act”) and the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) where ASQA is appointed as an ‘ESOS Agency’.

NVR Act

According to section 157 of the NVR Act:

157  Functions of the National VET Regulator

             (1)  The National VET Regulator has the following functions:

                     (a)  to register an organisation as an NVR registered training organisation;

                     (b)  to accredit courses that may be offered and/or provided by registered training organisations;

                     (c)  to carry out compliance audits of NVR registered training organisations;

                     (d)  to promote, and encourage the continuous improvement of, a registered training organisation’s capacity to provide a VET course or part of a VET course;

                     (e)  if requested to do so by the Minister, or on the Regulator’s own initiative, to advise and make recommendations to the Minister on matters relating to vocational education and training;

                      (f)  if requested to do so, in writing, by the Education Minister for a State or Territory, or on the Regulator’s own initiative, to advise and make recommendations to the Education Minister for the State or Territory on specific matters relating to vocational education and training in the State or Territory;

                     (g)  if requested to do so, in writing, by the Chair of the Ministerial Council, or on the Regulator’s own initiative, to advise and make recommendations to the Ministerial Council on general matters relating to vocational education and training in all jurisdictions;

                     (h)  to collect, analyse, interpret and disseminate information about vocational education and training;

                      (i)  to publish performance information, of a kind prescribed by the regulations, relating to NVR registered training organisations;

                      (j)  to conduct training programs relating to the regulation of registered training organisations and/or the accreditation of courses;

                     (k)  to enter into arrangements with occupational licensing bodies, other industry bodies, or both, for the purpose of ensuring compliance by NVR registered training organisations with this Act;

                      (l)  to cooperate with a regulatory authority of another country that has responsibility relating to the quality or regulation of vocational education and training for all, or part, of the country;

                    (m)  to develop relationships with the Regulator’s counterparts in other countries;

                     (n)  to develop key performance indicators, to be agreed by the Minister, against which the Regulator’s performance can be assessed each financial year;

                     (o)  to develop service standards that the Regulator must meet in performing the Regulator’s functions;

                     (p)  any other function relating to vocational education and training that is set out in a legislative instrument made by the Minister;

                     (q)  such other functions as are conferred on the Regulator by or under:

                              (i)  this Act; or

                             (ii)  the Education Services for Overseas Students Act 2000; or

                            (iii)  the Higher Education Support Act 2003; or

                            (iv)  the VET Student Loans Act 2016; or

                             (v)  any other law of the Commonwealth;

                      (r)  to do anything incidental to, or conducive to, the performance of any of the above functions.

ESOS Act

Under section 6C of the ESOS Act, ASQA is appointed as the ESOS Agency for the VET and ELICOS sector.

Section 4A provides the Objects of the ESOS Act:

4A  Objects

                   The principal objects of this Act are:

                     (a)  to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and

                     (b)  to protect and enhance Australia’s reputation for quality education and training services; and

                     (c)  to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.

The emphasis is mine and is highlighted to demonstrate the object that the ESOS Agency is expected to achieve.

As reported in The Mandarin on 3 November 2022 by Phill Bevan:

Australian Skills Quality Authority (ASQA) chief executive officer Saxon Rice said “ASQA’s focus in 2021-22 was broadly in five key areas: supporting the shift in regulatory approach toward provider self-assurance and excellence in training outcomes; enhancing an educative approach and engagement with the sector; maturing the approach to identify regulatory risk and apply a mix of education; compliance and enforcement tools and approaches to prevent and manage risk; and building workforce capability and culture."

There appears to be some discrepancy there between actual activities and priorities and its legislated function.

Concerningly, if The Nixon Rapid Review is expecting to rely on ASQA to contribute substantially to these reforms as proposed, it needs to perhaps contemplate how to overcome the following findings, also reported in The Mandarin on 7 November 2022:

"Despite increasing its employee workforce by 6% in the past two years to 195 staff, ASQA’s regulatory audit activity has dropped dramatically, with only 356 ‘Performance Assessments’ conducted in 2021/22. That is a massive drop of 79% on the audit volume conducted just two years ago (1,714 audits in 2019/20).

At the current rate, it would take the regulator almost 11 years to audit all of Australia’s 3,829 VET providers just once under its remit."

Interestingly, in the past week, The Mandarin wrote an article on "Are regulators watchdogs or guide dogs?"  This article published on 21 August 2023 found:

Many agencies with regulatory functions are choosing not to call out non-compliance or to name and shame those agencies found to be in breach of regulations. Instead, they prefer to keep their heads down, contenting themselves with mild criticism and encouragement to do better in future.

It, therefore, remains unclear to me just how, then, this multi-departmental investigation that is relying on ASQA to 'crackdown' on loopholes, rorts and 'ghost colleges'.

If ASQA was conducting itself as a regulator that was a 'watchdog' as opposed to a 'guide dog', it would be able to tell The Hon. Clare O’Neil MP and The Hon.Brendan O’Connor MP that these ‘strengthened integrity measures’ that they’ve been raving to the media about, are for the most part, actually nothing new.  These measures already existed. Let's take a look!

Measure 1: Support integrity in the international education system.

This measure is already provided for in the ESOS Act under section 83(1C). Section 83(1C) goes a lot further than supporting integrity and was added to the ESOS requirements during the 2019 CRICOS Rapid Review, where all registered CRICOS providers had to demonstrate that they complied with this requirement or they would be de-registered from CRICOS:

83  ESOS agency may impose sanctions for non‑compliance etc.

 (1C)  The ESOS agency for a registered provider may also take one or more of those actions against the registered provider if the agency believes on reasonable grounds that the registered provider:

                  (a)  does not have the principal purpose of providing education; or

                  (b)  does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or

                  (c)  has not been providing, or has not provided, education of a satisfactory standard.

Measure 2: Closure of a loophole to ensure that students who have been in Australia for less than six months are not transferred to other visa subclasses to facilitate their ability to work and not participate in genuine study.

While the 'concurrent study' issue may have been 'closed', there are still other ways of circumventing this system that have been around for as long as the ESOS Act has been in force. Also, let's not forget that it was the government who gave these students unlimited work rights for how many months (years) during COVID and without them, Australia would likely not have been able to manage its health and community workforce as successfully as it did because these students played a very significant role!

The truth is, you reduce the ability of international students to work, and all of a sudden, Australia's skills crisis will deepen because, generally speaking, the Australian population will not perform the roles that these international students fill because those roles do not pay enough.

Measure 3: Increasing the cost of living.

Let’s be reasonable, the cost of living is a struggle for most Australians whose income is more than $A24,905 annually, yet this is the 'revised' amount of savings required that will become effective from 1 October 2023.  This measure is not going to make a dent in this problem.

Measure 4: Using section 97 of the ESOS Act to issue ‘suspension certificates’ and claims that “This would be the first time an Australian Government has used the power and reflects how seriously the Albnese Government takes the issue of ‘dodgy providers”.

Come on, who are you fooling?  ASQA already has this power and uses it widely under sections 37 and 38 of the NVR Act.  One of the problems with this reporting is that while the media announcement relevant to ‘ghost colleges’ is focussed on ‘dodgy RTOs’, interestingly, the Nixon Rapid Review found that the exploitation concerns were most prevalent in the ELICOS sector and guess what?  The ELICOS sector does not fall under the NVR Act, hence the potential need to use section 97 of the ESOS Act, albeit section 83 discussed earlier can still be used and is already in use. 

So, using the unreleased findings from the Nixon Rapid Review that confirmed the issues were more prevalent in the ELICOS sector means that because few people have access to the leaked report, they would never know that the use of section 97 of the ESOS Act and threatening the VET sector with it, is actually misleading the public.  Let's blame it on the VET sector because the public already has a short fuse when it comes to scandals of 'dodgy providers' and 'ghost colleges', but the public is less likely to know what an ELICOS College is or realise that they can exist without actually being an RTO! Not to mention those denials of ghost colleges to the former High Court judge Ian Callinan.

Measure 5: Strengthening the rules to ensure that people who own, operate and manage RTOs meet higher and broader “fit and proper persons” standards.

What a load of rubbish!  This measure already exists and has existed for years under the Fit and Proper Person Requirements 2011 under FPPR 4(k) (which ceased to be in force from 1 April 2015 as the requirements were built into the Standards for RTOs 2015, see screenshot below). It also exists under sections 7A, 83(1C) (as discussed earlier) and 89 of the ESOS Act!

To ensure I am being very clear on this issue, the legislative instrument 'Fit and Proper Person Requirements 2011' was incorporated into the Standards for Registered Training Organisations (RTOs) 2015 at Schedule 3, and subsection (k) still applies. See below:

Schedule 3 of the Standards for RTOs 2015 is also demonstrated below in a partial screenshot:

Do you want to hear something funny though? Self-assurance does not appear to be a strong point for the National VET regulator because it still refers everywhere on its website and declaration forms to a legislative instrument that has not been in force since 1 April 2015! Here, take a look for yourself! And just because links can be updated to make me look like a liar, see the screenshot below:

For a copy of the 'Fit and Proper Person Declaration' referred to in the screenshot above, you can click on that hyperlink and see for yourself. If, however, by the time you're reading this, ASQA has corrected its website and documentation, I have a copy of the downloadable document that I'm happy to provide. I can't work out how to upload a document in LinkedIn's new article publishing format.

Measure 6: Stronger powers to scrutinise people managing, overseeing and controlling RTOs.

Firstly, remember what I said previously about the VET sector, ELICOS Colleges, the Nixon Rapid Review and misleading the public?  Not to mention all of the previous findings in relation to these measures. Here we repeat it all again.

Secondly, remember we began this article with the role of ASQA as a statutory authority and what it perceives its role to be? 

Not only is that role inconsistent with this measure because ASQA perceives its role as something entirely different, it already has these powers at its disposal in the NVR Act and the ESOS Act, however, for whatever reason (perhaps because it sees it has an educative role rather than one of deterring and disrupting visa exploitation), which, as discussed earlier, The Mandarin discussed in detail about self-imposed toothless regulators who are more likely promoting this role because they don’t have the internal capability to be anything different…but that is an entirely different article, although something I have touched on previously in several of my articles, but most appropriately "ASQA's Regulatory Practice...Let's Get Transparent" on 16 September 2018 (almost 5 years ago)! Another more recent article regarding ASQA's regulatory practices is called "Humpty Dumpty or London Bridge?" on 25 July 2022.

So, once again, the question for week 7 of "Let’s Ask ASQA" is a controversial one…

“What role does ASQA believe it plays in the sector?

How is ASQA’s ‘apparent’ perception different to its legislated objective.”

What are your thoughts?

Share below in the comments.

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