ASQA’s new Regulatory Practices Published

Last week the national regulator released its revised regulatory practices model (click). This includes a revised approach for assessing RTO performance, for responding to non-compliance and for the review of decisions where required. Overall, the changes look consistent with the pathway ASQA has been on now for the last 12 months. I have a couple of observations:

  • They have provided a lot of commentary to define “minor deficiencies” which is great. These are non-compliances that have negligible impact on students, can be readily fixed or are not systemic. These non-compliances will be noted in the audit report and the RTO will be allowed to address these as part of their self-assurance. I would have liked to see more guidance to describe and define the other levels of non-compliance such as those that result in an agreement to rectify, written direction, sanction, et cetera. ASQA should be required to allocate a specific level of non-compliance using a definition framework of non-compliance severity that is published and transparent.
  • The range of regulatory responses in the new framework (in response to non-compliance) range from providing “information, education and advice” through to court action with “criminal proceedings”. Along this increasing continuum of responses, I do not see the normal rectification process or what has more recently been referred to as “providing a written response”. The regulatory responses seem to jump from issuing the RTO with a “Written Direction” straight to imposing “Conditions on Registration”. Conditions on an RTOs registration can include limiting your scope of registration and putting a cap on your enrolment numbers. That is a significant change. It will mean that any non-compliance that is greater than what we would normally consider minor (not extensive) will default to conditions being imposed on your RTO registration. It will likely result in a rise of applications to review these decisions (at $1000 a go). This is another reason we need definitions around the levels of non-compliance. The range of regulatory responses appears like a gradual increase but jumping from a written direction to conditions being imposed on your RTO is a big jump-up and overly punitive where the RTO could have simply provided evidence in a written response to demonstrate compliance. ASQA simply do not have sufficient reliability in their auditor decision making for a change like this to be fairly and evenly implemented. This will be one to watch.
  • Another change worth noting is to the arrangements for applications to the review of decisions. The primary changes relate to the timeframes for making an application, responding to adverse notifications and for applying for an extension. I find the language a little unclear, but it seems to identify that if an extension is granted it will only be for 5 days. Previously, a typical extension would be up to 30 days and over Christmas could be 45 days, So, this is a significant change to what I predict will become an increasingly exercised option for RTOs who are subject to adverse conditions on their registration. The shorter timeframe will make it imperative that the RTO gets moving on the required changes the moment the “assessment” is complete. The days of pondering how to respond for three weeks are over.
  • I cannot go past commenting on something of note in the “approach to assessing performance”. ASQA identify an increased focus on Clause 2.2 of the Standards for RTOs. Clause 2.2 is basically the continuous improvement clause. Many of you will remember when continuous improvement was introduced as a significant feature of the 2007 AQTF. It was sooooo important back in those days and remained a feature through AQTF 2010, the SNRs in 2011 and then in 2015, continuous improvement disappeared to obscurity particularly when ASQA introduced its Learner Focused Audit Model and didn’t include clause 2.2 on the audit scope. Well everything old it new again! ASQA identify that clause 2.2 will be included on the scope of RTO performance assessments. So, its time to dust off those continuous improvement registers and get back into considering CI in your management meetings, collecting that data, et cetera. We spent so much time educating clients about their approach to CI back in the noughties. I may need to bring some of those resources back into the light!

If you hang around this sector long enough you notice that all of these things go around in cycles. They say change is as good as a holiday and I am happy to go along with whatever the policy is on the day. There is one thing though I think needs to be said. It is fantastic for ASQA to come out with yet another new framework for its regulatory practices. I want to know what they are doing to ensure there is consistency between their various Auditors (Assessors). We still see gross variation in the decisions that auditors make in relation to particular clauses such as the volume of learning (1.1-1.2), reliability in support of assessment (1.8), validity of assessment evidence (1.8), vocational competency of trainers (1.13) and recognition of prior learning (1.8). I see no improvement in the audit consistency or reliability of ASQA auditors. It too often still comes down to the auditor’s own experience and interpretation. If you consider that; in light of, the blurry line that now exists between a written direction and the imposing of Conditions on an RTOs registration you can share my earlier concern. ASQA need to concentrate on improving their own decision processes with clear and transparent definitions of the levels of non-compliance and auditor moderation that actually results in agreed published positions and interpretations. The new regulatory framework is great, but lets get the fundamentals of regulation internally right within ASQA first.

Good training,

Joe Newbery

Published: 15th April 2021

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