The Australian Skills Quality Authority (ASQA) urged registered training organisations (RTOs) that give first aid training to revise their practices in the wake of the decision of the West Australian coroner on the death of a young soccer player.

The coroner found that the 15-year-old died after heat stroke during a rugby-league session. He received first aid and was taken to the hospital by ambulance, where he died of multi-organ failure.

The coroner discovered that the boy might have survived if the first aid workers had been trained in heat stroke in line with recent developments. He also recommended that heat-related agencies that train first aid workers consider changing the content of the training.

ASQA states that RTOs should immediately review and ensure training is compatible with new heat stroke advice for sports trainers and coaches.

ASQA has also reminded trainers of the need to ensure that these learners have to demonstrate CPR on an adult resuscitation manikin on the floor and not at the table.

See  ASQA advice.

Published with written permission from the author. 

Reference: Zhouand, Z. (2019, April 09). Can I sue ASQA for damages? Retrieved April 09, 2019, from https://www.linkedin.com/pulse/can-i-sue-asqa-damages-zmarak-zhouand/

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In the current environment, an increasing number of people feel that they and their Registered Training Organisations (RTOs) have suffered loss and damage due to what they believe are wrongful acts or omissions on the part of the Australian Skills Quality Authority (ASQA).  

The question that these people want answered is: “Can I sue ASQA?”

Read on for more details.

(1)  Reviewing a decision vs. suing ASQA

There is a difference between applying to have a decision reviewed and suing for damages.

If ASQA makes a decision that you disagree with (for example a decision to cancel your RTO registration), you can usually apply to review the decision internally with ASQA and/or with the Administrative Appeals Tribunal.

A review is an administrative process where the decision maker (either ASQA or the tribunal) will make a new decision. Reviewing an ASQA decision is different from suing ASQA.

You would sue ASQA to recover loss and damage that they havewrongfully caused.

If you have suffered a loss or damage because of an alleged wrongful act or omission on the part of ASQA, in theory, provided you can satisfy the elements of a cause of action (such as negligence), you may sue ASQA for damages.  

So what’s stopping you?

(2)  Crown immunity: ASQA is protected from legal action

Under the National Vocational Regulator Act (NVR Act) ASQA has privileges and immunities of the Crown and cannot be sued where itacts in “good faith”.

This means ASQA is legally immune from being sued where the loss or damage is caused by something ASQA did (or did not do) in “good faith”.

ASQA would be deemed to be acting in good faith if it honestly believes that it is acting in furtherance of its statutory duties – even if it is negligent or makes a wrong decision.

Accordingly, even where ASQA is negligent, and such negligence causes you or your RTO loss and damages, provided ASQA acted in “good faith”, you can’t sue ASQA.  

But, there are exceptions.

(3)  Not acting in good faith

If ASQA, or one of its representatives (for example, an auditor), does not act in good faith and you or your RTO suffers loss or damage, you may be able to sue ASQA or its representative.

This is a complex area of law and beyond the scope of this short article. You should seek legal advice if you believe your case might fall under this exception.

(4)  Discretionary avenues for recovery

In circumstances where it can be established that you suffered loss or damage due to ASQA’s negligence, defective administration or other special circumstance, you can seek compensation in the following ways.

• Payment in settlement of a claim
• Compensation for Detriment caused by Defective Administration (CDDA) scheme
• Act of Grace payment

All these schemes are discretionary meaning that there is no obligation to pay compensation of any sort. They are based on the premise that there is a moral, rather than legal, obligation to make things right.

(a) Payment in settlement of a claim

Making a compensation claim and requesting settlement is usually the first step. You can make a claim directly to ASQA. The claim must be in writing (usually a letter) and include the details of the alleged negligence and the subsequent loss and damage suffered.

If ASQA agrees to pay you compensation, it will be an ex-gratia payment, meaning it is not an admission of liability ASQA. If ASQA does not compensate you, you can consider making a CDDA Scheme of act of grace application.

(b) CDDA Scheme

The CDDA Scheme aims to rectify defective administration. Defective administration is defined as:

• a specific and unreasonable lapse in complying with existing administrative procedures; or
• an unreasonable failure to institute appropriate administrative procedures; or
• an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer’s power and knowledge to give (or reasonably capable of being obtained by the officer to give); or
• giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.

The aim of the CDDA scheme is to put you in the same position you would have been, had there been no error or negligence. So, if you can prove that defective administration took place, then the CDDA scheme may, but is not obligated to compensate you for your loss or damage.

(c) Acts of grace payment

An act of grace payment is a special ‘gift of money’ by the Commonwealth government. Act of grace payments are very rare. According to the Commonwealth Department of Finance:

Act of grace payments are a last resort for providing compensation to persons who may have been unfairly disadvantaged by the Commonwealth but who have no legal claim against it.

Circumstances where an act of grace payment might be made include:

• where ASQA’s involvement had an unintended outcome
• where the application of legislation or policy has resulted in an unintended, inequitable or anomalous effect
• where the paramount obligation is moral, rather than legal.

The Department of Finance handles act of grace payment applications.

(5)  Way forward

Suing ASQA or one of its representatives, or making a claim under one or more of the discretionary schemes, can be very tricky and you want to get it right, the first time.

For advice on your rights and assistance with making your claim, speak with your lawyer.

This is Part 4 of the article, where we are discussing the different phases of the validation processes an RTO should be following to ensure they meet regulatory requirements and industry expectations.

In the previous articles, we discussed the following regarding the validation of assessment resources:

• Explanation of assessment validation
• Typical benchmarks used during the validation processes
• Stages of validation (before, during and after the assessment judgements)
• Regulatory requirements for conducting validation
• Assessment systems
• Who conducts validation?
• How is validation different from moderation?
• How external consultants can help you with validation of assessment and learner resources?
• The regulatory requirements around validation of learner resources.

In this month’s article, we will explore the following:

• Why do you need to keep validators information
• Why validation of assessment and learner resources should be systematic and ongoing
• How you can schedule validation
• What is statistically valid sampling
• Validation outcomes

Why do you need to keep validators information?

You need to keep for validators information for the following reasons:

• To demonstrate that the RTO’s assessment system can consistently produce valid assessment judgements.
• Validation is undertaken by one person or by a team of people. The RTO must ensure the review process is completed by people who collectively hold:
  • vocational competencies and current industry skills relevant to the assessment being validated
  • current knowledge and skills in vocational teaching and learning, and
  • the TAE40110 Certificate IV in Training and Assessment (or its successor) or the TAESS00001 Assessor Skills Set (or its successor).
• A regulatory body such as Australian Skills Quality Authority (ASQA) may request evidence of it during audit activity.

Reasons why validation of assessment and learner resources should be systematic and ongoing.

A unit of competency needs to be regularly reviewed to ensure that  it meets current industry and regulatory requirements, therefore, you must have a systematic and ongoing mechanism to track any changes and to ensure all your resources are up-to-date and current.

How to schedule validation

The first step is to  develop a “validation schedule” used to validate each training product (AQF qualification, skill set, unit of competency, accredited short course and module) on your scope of registration.

A validation schedule is a five year plan and each training product must be reviewed at least once in that five-year period, and at least 50% of your training products must be validated in the first three years of the schedule. Your RTO might choose to validate its training products more often, for example, if risk indicators demonstrate that more frequent validation is required. Indicators of risk might include:

• the use of new assessment tools
• delivery of training products where safety is a concern
• the level and experience of the assessor, or
• changes in technology, workplace processes, legislation, and licensing requirements.

Once you have your validation schedule you need to complete a validation plan with dates and timelines. The more detailed your plan is with regards to the who (needs to be included), when (what date and for how long), and what (which units is being validate, what information will be needed, from where are we getting it) the better your outcomes for your validation will be.

What is statistically valid sampling?

A statistically valid sample is one that is:

• large enough that the validation outcomes of the sample can be applied to the entire set of judgements, and
• taken randomly from the set of assessment judgements being considered.

Use ASQA’s validation sample size calculator for more information. It can be found here:

https://www.asqa.gov.au/news-publications/publications/fact-sheets/conducting-validation#validation-sample-size-calculator

Validation outcomes

You must keep all records as a soft-copy/scanned format or in hard-copy. The records must include all the tools used to conduct validation such as assessment resources, validation forms and checklists, profiles of validators etc.

The validation outcomes should identify recommendations for improvement to the assessment tool, assessment process or assessment outcome.

Sometimes the validation outcome can identify critical issues in the collection of valid evidence.

When this occurs, you may:

• increase the validation sample size to assist in identifying patterns of issue
• validate completed assessments from other units of competency to see if the issue is spread across the whole of the qualification, and
• look for patterns of error (for example, consider if it is one assessor making invalid judgements—this could indicate the assessor requires further training in competency-based assessment).

Your validation plan must clarify how you will document and act on validation outcomes. For example, an assessment validation checklist addressing the principles of assessment and rules of evidence may be utilised to document the validation outcomes. Outcomes of validation may be acted upon through your RTO’s continuous improvement processes.

Your RTO must have a records management process to retain the evidence of the validation. You should retain evidence of:

• the person/people leading and participating in the validation activities (including their qualifications, skills and knowledge)
• the sample pool
• the validation tools used
• all assessment samples considered, and
• the validation outcomes.

If the validation outcomes recommend improvements to the assessment tool, you should implement these recommendations across all training products, not only those included in the sample. If you make changes to the assessment tool, complete quality checks and review the revised tool prior to implementation.