Hi there,

I have been getting many questions about the approaching requirement for RTO Chief Executive Officers to submit an annual declaration to the National Regulator about their compliance. The declaration is due by the 31st Mar 2016 (see here) for the details on the ASQA website.

Why is this required? For those who are not aware, Clause 8.4 of the Standards for Registered Training Organisations (RTOs) 2015 requires that:

The RTO provides an annual declaration on compliance with these Standards to the VET Regulator and in particular whether it:

  • currently meets the requirements of the Standards across all its scope of registration and has met the requirements of the Standards for all AQF certification documentation it has issued in the previous 12 months; and
  • has training and assessment strategies and practices in place that ensure that all current and prospective learners will be trained and assessed in accordance with the requirements of the Standards.

The common thread in the questions I am getting is concern and anxiety over informing ASQA that you currently have some non-compliance. Other clients are also concerned that, whilst they are confident they are compliant and have done everything reasonably possible to ensure compliance,, what are the ramifications if they have an audit in six months and an auditor finds the RTO non-compliant? These are all reasonable concerns to have.

Now in responding to these questions and concerns, I want to reflect on why this requirement has been introduced. It is intended to require a CEO to take personal responsibility for the compliance of the RTO. Of course, that responsibility has always been there but by getting the CEO to formally reflect on their organisations compliance and to make a “declaration” to the regulator about the current state of compliance, it will cause some to take their responsibility under the Act more seriously. I personally think it is a great initiative. It is smart. Having worked in VET regulation for many years, this is what I would call a passive regulatory measure. It costs the regulator very little to administer but will be reasonably effective at instilling greater awareness and responsibility in the sector for compliance and might even contribute to improving the positive culture of compliance. I might be going a bit far with that last bit, but you get my drift! 🙂 It is a small and simple initiative for the regulator but it is likely to produce positive outcomes that are disproportionate to the effort required to deploy it. Smart!

Now,, back to the initial question, should CEOs be concerned about how they respond to these declarations? The simple answer is, don’t be concerned but you should take this very seriously. You are completing a declaration and the underpinning requirement of that is to provide truthful information. In defining a “Statutory Declaration” the Attorney-General’s Department identifies it as: a written statement that allows a person to declare something to be true. So I totally recommend the truth. It never fails. Now, accepting that, the vast majority of RTOs are not compliant all the time. Its a fact. The difference is that some are blissfully ignorant about their compliance and carry on thinking that they are fully compliant and the best thing since sliced bread and others (our clients) accept that compliance takes constant work and requires good systems, advice and monitoring. Now the “others” in the last sentence will know where their areas of compliance weakness are. They will know what needs to be done to get compliant and those actions will be either happening or be scheduled to occur. Now across all of our ongoing clients there would be probably be less than 12 across the country that both them and I would agree, they are fully compliant. Their systems and monitoring is so good that I struggle to find any non-compliance when I visit. Their last couple of ASQA audits have resulted in no non-compliance. These guys can complete the declaration with confidence! But,, these RTOs are rare as rocking horse,,, you know. All other good RTOs have some non-compliance and the good thing is they acknowledge that and are getting on with addressing it.

Ok,, a few points:

Is this a Statutory Declaration? This is not a Statutory Declaration made in accordance with the Statutory Declarations Act 1959. ASQA have called it a Declaration to encourage CEOs to consider it very carefully (which they should) but it is not the same as a Statutory Declaration. I completed it yesterday and it is a basic web form which is distributed by an email marketing and communications business called Vision6. It requires no sign-in or authentication. It relies only on information which is already publically available to identify the RTO about which the declaration is being made. So in effect anyone could submit a declaration about any RTO on the national training register! The link to access the “Declaration” is available to the public on the ASQA website. Here it is here if you are interested: http://ems.gs/3pwg0kObwfj. It requires no signature and no witness, so I think we can safely say it is not really a declaration but more of a,,,,, lets call it an ICF which stands for an Information Collection Form. 🙂 So,, if you are concerned about making an unintended false declaration, because the Statutory Declarations Act 1959 says that the penalty for making a false statement in a statutory declaration is a maximum of four years imprisonment, then you should relax.

What if I indicate a clause is compliant and latter an auditor finds it non-compliant?  In completing the ICF,, sorry, declaration, you are simply providing information about your RTO to the regulator which the regulator is allowed to request and you are obliged to provide under your conditions of registration specified in Section 26 of the National Vocational Education and Training Regulator Act 2011 (see here). The information you provide will be accurate at the time and of course things change with time. The other point I would make is that your interpretation and the auditor’s interpretation of the standards is in the most part subjective. My point is, the roof will not fall in because you indicated something was compliant and latter it is found non-compliant. ASQA will just deal with this like any non-compliance according to the legislation and their obligation as a statutory authority to apply procedural fairness. You would have been better however to inform them of any issues and what you are doing about it rather than withhold that information. So, I come back to my earlier point, tell the truth and tell the story about all the good initiative you have underway to maintain and improve your compliance.

Where will your completed ICF (declaration) go? I can almost guarantee that Vision6 will either feed this data into an ASQA database which has been built or will present it to ASQA in a media that allows them to generate reports and interrogate the data. I.e how many RTOs in SA responded “No” to Standard 3, under question 2.2. I actually would be surprised if they had not considered that level of sophistication in their design of this. In the majority it will be accessible to the guys in Risk located in Brisbane. Risk will refer to your declaration when they are planning regulatory activity in response to an application you have submitted. I am sure it will also be available to Regional Managers and maybe Principle Auditors when they are also planning an audit. ASQA currently has 4030 RTOs that it regulates. They are not going to review every declaration they receive. I am sure they will review some from RTOs they consider high risk and they may have built in the capability to red flag a submission if a certain number of responses are indicated as “No”. In the majority I expect your declaration will only see the light of day if you make an application to the regulator or inform the regulator of a significant change or event.

In conclusion, I recommend that you treat this like an annual report card on yourself to the regulator. If you have areas of perceived non-compliance, then declare it. Make sure you include lots of detail about what actions you have taken and actions you have planned to address these non-compliances. Don’t be afraid of the truth. It always wins out. The last point is make sure you submit your declaration by the due date. Failure to do so would constitute a breach of your conditions of registration.

Good Training,

Joe Newbery

Published: 1st February 2016

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