Under the National Vocational Education and Training Regulator Act 2011 (NVR Act), a Registered Training Organisation (RTO) must apply for re-registration at least 90 days before its expiration.
If you miss this window, ASQAnet won’t let you apply for re-registration. And once your registration expires, you are no longer an RTO, and can’t provide any training.
So what do you do? Read on…
1) What is the rule for RTO registration renewal?
The NVR Act sets out the rules for RTO registration renewal. The NVR Act says that an RTO may renew its registration by making an application for renewal.
Section 31 says that this application must be made at least 90 days before the RTO’s registration expires; or within a shorter period, if the Australian Skills Quality Authority (ASQA) allows.
This means ASQA can exercise its discretion and still allow you to renew your registration even if you apply less than 90 days before your current registration expires.
But will ASQA allow it?
2) ASQA’s position - “exceptional circumstances”
ASQA says that only in “exceptional circumstances” will it accept a registration renewal application shorter than the 90-day period.
To quote a recent ASQA article:
If you do not submit your renewal application before the 90-day deadline, in most cases ASQA will not accept your application.
In exceptional circumstances, you may ask ASQA to consider late submission of a renewal application…
You can read the full article here.
ASQA’s position doesn’t appear to have legal support. Case law suggests that it’s wrong to limit the application of such discretions to “exceptional circumstances”. Rather, these sorts of discretions should be exercised where “justice” demands – and not only in “exceptional circumstances”.
3) ASQA have not allowed a shorter period, what now?
An RTO can lodge an application for review with the Administrative Appeals Tribunal if ASQA does not allow a shorter time to apply for registration renewal under section 31. Recent decisions have shed light on how the Tribunal considers these section 31 matters. On at least two occasions this year the Tribunal has likened this issue to missing the time frame to file an appeal application. The Tribunal has a list of factors it considers when deciding these “out of time” cases.
The Tribunal will consider:
· the explanation for the delay
· the length of the delay - the shorter the delay the better
· any prejudice to the respondent (ASQA)
· prejudice to the applicant (RTO)
· the merits of the case (that is, whether the RTO’s registration renewal application is likely to be approved); and
· fairness - including fairness to others in a similar position.
If you decide to apply for a review, you should prepare a response that addresses each of these criteria.
The Tribunal has commented that the 90-day deadline shouldn’t be viewed as an unbreakable rule. A shorter period of time should be granted, if there is a reason to do so.
4) Tips for best practice
In the past, ASQA sent reminder letters to RTOs for registration renewal. However ASQA can no longer be relied on to send these reminders to all RTOs. Obviously, you should do your best to ensure that you lodge your RTO’s registration renewal application at least prior to the 90-day time frame. RTOs should plan ahead for registration renewal and record relevant dates in calendars properly.
5) Bottom line
If you missed the 90-day time frame and ASQA has refused to allow you a shorter period to apply for your registration renewal you have the right to apply for a review with the Administrative Appeals Tribunal. The Tribunal will consider whether there is a reason to allow you a shorter period of time and make a decision accordingly.
For advice on your rights and assistance, speak with your lawyer.
Zmarak Zhouand, Principal Solicitor
rto.legal | (e) z@rto.legal| (t) 0478 393 502 | (w) www.rto.legal
Disclaimer: This article has been based on Australian law and practices current as at the date of publication. Information contained in this article constitutes legal information and should not be viewed as legal advice. You should consult with a lawyer before you rely on this information. Contact