What to do if you have a complaint against ASQA?
Under the Standards for VET Regulators 2015 (“the Standards”) ASQA must have a policy to manage and respond to complaints about its regulatory practices. This is called the Policy for managing complaints about ASQA (“the Policy”).
Who can make a complaint? Anyone can make a complaint about ASQA and it can be done anonymously. If you make a complaint anonymously ASQA may not proceed to investigate unless there is sufficient information provided. ASQA must properly consider your complaint under the Policy.
What can you complain about?
· The handling of your application for registration by ASQA;
· Information or the lack of information provided to you by ASQA; and
· The actions of ASQA employees – this includes its auditors and other staff members.
When doesn’t the Policy apply? The Policy does not apply to complaints about regulatory decisions such as deregistration of your RTO. It also does not apply to complaints relating to the activities of RTOs themselves or complaints about fees and charges of ASQA.
What is the process? To make a complaint about ASQA, you need to fill out the ‘Make a complaint about ASQA’ form found here: https://www.asqa.gov.au/complaints/complaints-about-asqa.
You can send the complaint to firstname.lastname@example.org (formal method), directly to ASQA’s postal address or in another appropriate way. Once submitted, your complaint will be acknowledged by receipt within 5 days unless the complaint is submitted through a non-formal method.
If ASQA considers that it will take more than 90 days to finalise your complaint, they will advise you with their reasons. Once ASQA completes the investigation, you will be notified what the outcome has been.
Throughout the investigation of your complaint ASQA needs to follow the requirements of procedural fairness and natural justice.
ASQA must provide both you and the person/s subject to your complaint the right to be heard. This means that if you complain about an individual directly that unless extenuating circumstances apply, they will be provided with a copy of your complaint. ASQA must also ensure there is no bias in relation to the investigation or finalisation of your complaint.
Throughout the investigation of your complaint, ASQA must be transparent in how and which documents they provide to you. If you are concerned that ASQA is not giving you all the information you have asked for, then you may consider submitting a Freedom of Information (FOI) request. For more information on how to lodge a FOI application please see: https://www.oaic.gov.au/freedom-of-information/foi-resources/foi-fact-sheets/foi-fact-sheet-6-how-to-apply.
What remedies can you expect from a complaint to ASQA?
Once you make a complaint, ASQA’s Governance, Policy and Quality team will investigate the complaint and they will prepare a report. This report includes recommendations and a written response to you.
If the complaint requires further action, then this will be included in the recommendations. The written response that you receive from ASQA will detail the outcome of the investigation and any actions that will affect you.
If you are still dissatisfied after your complaint has been finalised by ASQA, you may seek a review of the complaint by the Commonwealth Ombudsman. This can be found here: http://www.ombudsman.gov.au. You must file a complaint with ASQA first, otherwise, the Ombudsman is unable to review the complaint.
Who is the Ombudsman? The Ombudsman is an impartial office that investigates decisions made by government officials and agencies. ASQA is a government agency and therefore you can complain to the Ombudsman about ASQA. Once a complaint is submitted to the Ombudsman, the Ombudsman must inform the principal officer of the department or authority of the complaint. The investigation by the Ombudsman is conducted in private. The Ombudsman also has discretion as to the way the investigation is undertaken; natural justice does not need to be provided to ASQA.
What remedies can you expect from the Ombudsman?
The Ombudsman’s guiding principle is to “put a person in the position he or she would have been if no administrative problem had occurred”. Normally this occurs through a recommendation by the Ombudsman that the agency apologises. This must be a formal apology admitting fault and must include how in future this will not occur again.
Other available remedies to you include compensation under the Financial Management and Accountability Act 1997 (Cth) and/or an explanation of ASQA’s decision. Each year, the Commonwealth Ombudsman also publishes an annual report detailing what complaints the Office has dealt with. If ASQA’s conduct was such to warrant being published by the Ombudsman, then this is also a deterrent to ASQA being investigated by the Ombudsman.
For advice on your rights and assistance, speak with your lawyer.
Zmarak Zhouand, Principal Solicitor
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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.