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Negotiated Settlement Case Study

Our client was a Registered Training Organisation (“RTO”) in Victoria. It delivered vocational education and training to both overseas and domestic students.

The Australian Skills Quality Authority (“ASQA”) is the National regulatory authority that governs RTO’s that train overseas students.

In order to maintain its registration to train overseas students, an RTO has to comply with a complicated legislative regime administered by ASQA, including the following:

  • National Vocational Education and Training Regulator Act 2011 (Cth) (“NVR Act”);
  • Standards for NVR Registered Training Organisations 2012 (“SNR’s”)
  • Education for Overseas Students Act 2000 (“ESOS Act”); and
  • National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007(“National Code”).

ASQA conducted an audit of our client and found it to be allegedly non-complaint with a range of matters prescribed by the legislation and the standards. In those circumstances, ASQA has the power under the NVR and ESOS Acts to cancel, suspend or impose sanctions on an RTO’s registration.

ASQA gave the RTO notice that it intended to cancel its registration for being non-compliant. This meant that on the date that the decision was due to take effect, the RTO would have to cease delivering training to overseas students. As this market was a major source of its income, the RTO would likely have gone out of business and deprived the overseas students of a place to study.

Under the Act, ASQA’s decision to cancel an RTO’s registration was reviewable in the Administrative Appeals Tribunal (“AAT”), provided that the RTO lodged its application within 28 days of the decision. We immediately lodged applications in the AAT for the RTO seeking to stay the decision (or to have its operation suspended), and ultimately to have it reviewed.

The AAT decided to stay the decision, pending its ultimate review. This meant that the RTO could go on trading while the matter progressed through the AAT.

When the AAT reviews an ASQA decision, it considers the state of an RTO’s compliance as at the date of the hearing, not the date that ASQA originally made the decision.

In the months leading up to the hearing, we helped the RTO engage consultants to address the alleged non-compliances. We then negotiated with ASQA and made submissions so that it could satisfy itself that the RTO was now compliant.

As a result of those negotiations, both ASQA and the RTO consented to the AAT making a new decision. The substituted decision allowed the RTO to keep its registration and continue delivering training to overseas students.

Because the decision was made by consent, the matter did not have to go to hearing. This saved the RTO both significant legal costs and the stress of litigation.

*names withheld for reasons of confidentiality