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Clause 1

Application of Fit and Proper Person Requirements

The National VET Regulator must have regard to all matters it considers relevant that are specified in this Schedule when determining whether:  

  1. an NVR registered training organisation;
  2. a governing person of an NVR registered training organisation;
  3. a person applying to become an NVR registered training organisation; or
  4. a governing person of a person applying to become an NVR registered training organisation,  

is, or would be, a fit and proper person for the purposes of registration, renewing registration, or maintaining registration as an NVR registered training organisation under the Act.  

Note: This section does not limit the types of persons which the National VET Regulator may have regard to when undertaking a fit and proper person assessment. 

Clause 2

Compliance with law

  1. Regardless of whether a conviction has been recorded, the National VET Regulator may have regard to whether the person has been found guilty of an offence against, or ordered to pay a pecuniary penalty under, a law of the Commonwealth or a State or Territory.

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. Nothing in subsection (1) affects the operation of Part VIIC of the Crimes Act 1914.

  1. The National VET Regulator may have regard to the seriousness of, and the time elapsed since the offence, conviction, or matter to which the pecuniary penalty relates occurred.
  2. The National VET Regulator may have regard to whether the person is currently involved in proceedings before a court or tribunal.
  3. The National VET Regulator may have regard to whether the person has been found guilty of a foreign offence (within the meaning of section 85ZL of the Crimes Act 1914).  

Clause 3

Management History

  1. The National VET Regulator may have regard to whether one or more of the following has been cancelled, revoked, suspended or rejected:
    1. the person’s registration as an NVR registered training organisation;
    2. the person’s application for registration or renewal of registration as an NVR registered training organisation;
    3. the person’s approval as an approved course provider (within the meaning of the VET Student Loans Act 2016) or VET provider (within the meaning of the Higher Education Support Act 2003);
    4. subsidy funding arrangements with a State or Territory for the provision of education services by the person.
  2. The National VET Regulator may have regard to whether the person has:
    1. breached a condition of registration as an NVR registered training organisation; or
    2. had a condition imposed by way of sanction on a registration, approval or arrangement mentioned in subsection (1) and has breached such a condition.  
  3. The National VET Regulator may have regard to whether the person has ever been a manager or director of a registered higher education provider (within the meaning of the Tertiary Education Quality and Standards Agency Act 2011) or registered provider (within the meaning of the Education Services for Overseas Students Act 2000) during a period in which the registered higher education provider or registered provider was determined to have breached a condition of its registration under the:
    1. Education Services for Overseas Students Act 2000; or  
    2. Tertiary Education Quality and Standards Agency Act 2011.
  4. The National VET Regulator may have regard to whether the person has ever been involved:
    1. in the business of delivering courses or other services on behalf of a person that was the subject of regulatory action described in subsections (1), (2) or (3); or
    2. with an entity at the time that entity was found to have breached a government training contract.
  5. The National VET Regulator may have regard to whether the person has been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001.  

Clause 4

Financial record

The National VET Regulator may have regard to whether the person has:  

  1. been insolvent or bankrupt;
  2. taken steps to take the benefit of any law for the relief of bankrupt or insolvent debtors;  
  3. compounded with one or more creditors;  
  4. assigned remuneration for the benefit of one or more creditors;  
  5. been under external administration (within the meaning of subsection 600H(2) of the Corporations Act 2001); or
  6. outstanding debts to the Commonwealth. 

Clause 5

Provision of information

The National VET Regulator may have regard to whether the person has provided false or misleading information to any of the following in circumstances where it is reasonable to assume the person knew the information was false or misleading:

  1. a VET Regulator;
  2. the Tertiary Education Quality and Standards Agency;
  3. the TPS Director (within the meaning of the Education Services for Overseas Students Act 2000), including in the TPS Director’s capacity as the VSL Tuition Protection Director under the VET Student Loans Act 2016 and the Higher Education Tuition Protection Director under the Higher Education Support Act 2003;
  4. the Minister, the Department or the Secretary; or  
  5. an authority of a State or Territory that deals with subsidy funding arrangements for education.  

Clause 6

Previous conduct and involvements 

  1. The National VET Regulator may have regard to whether the person has previously been found not to be a fit and proper person for the purposes of one or more of the following:
    1. the Act;
    2. the Australian Education Act 2013;
    3. the Education Services for Overseas Students Act 2000;
    4. the Higher Education Support Act 2003;
    5. the Tertiary Education Quality and Standards Agency Act 2011;
    6. the VET Student Loans Act 2016;
    7. subsidy funding arrangements with a State or Territory for the provision of education; or
    8. any other law of the Commonwealth or of a State or Territory.
  2. The National VET Regulator may have regard to whether the person has previously engaged in conduct that reasonably suggests a deliberate pattern of unethical behaviour.
  3. The National VET Regulator may have regard to any other matter relating to a person’s previous conduct or involvement that the Regulator considers relevant. 

Clause 7

Additional considerations

The National VET Regulator may have regard to whether the public is unlikely to have confidence in the person's suitability to be involved in an organisation that provides, assesses or issues nationally recognised qualifications.

  • You recognise the Fit and Proper Person Requirements (FPPRs) as a positive obligation upon your RTO requiring active and ongoing education and monitoring of your staff, especially your governing persons.  
  • You acknowledge that the expectation is disclosure where there is doubt. Governing persons should not make assumptions about whether a matter is sufficiently minor, resolved or unrelated to VET to be excluded from disclosure.
  • You can demonstrate the due diligence you undertake to assure yourself that your RTO staff are fit and proper in respect of the public being able to have confidence in their suitability to be involved in VET delivery – for example, referee checks, police checks.
  • Where you have third party arrangements in place, you apply this due diligence to staff delivering VET on your RTO’s behalf.
  • You ensure that your RTO’s governing persons submit a full and frank Fit and Proper Person Declaration to ASQA upon commencement and at any other time when there is a change in circumstance that may impact upon their fitness and propriety.
  • You have evidence demonstrating how you educate your RTO’s governing persons on the FPPRs, and the legal obligation on them to declare a change in circumstance where relevant. This includes declaring all legal matters that the governing person is involved in regardless of:
    • the seriousness of the matter
    • whether the matter is resolved or ongoing
    • in the case of a legal charge, whether it resulted in a conviction being recorded or not  
    • whether the matter is being appealed
    • whether the matter relates to an overseas jurisdiction.  
  • Where a disclosure made by a governing person raises concerns, you retain documentation on your assessment of this information, and how you determined the person’s suitability or unsuitability as a governing person under the FPPRs.  

  • Failing to adopt governance structures, processes and procedures that ensure your RTO staff are, and remain, fit and proper in respect of their particular roles in VET delivery.  
  • Failing to understand the due diligence practices used by your third parties relating to the integrity of staff delivering VET on your RTO’s behalf.
  • Failing to identify all of your RTO’s governing persons to whom the Fit and Proper Person Declaration applies – i.e. all people responsible for overseeing, directing or exercising a degree of control or influence over the management or operation of your RTO.
  • Not adequately assessing any issues declared by a governing person in respect of whether the public is likely to have confidence in the person's suitability to be involved in the management or operation of the RTO.
  • Not considering conflicts of interest as part of your assessment of a governing person’s fitness and propriety for your RTO.
  • Failing to retain copies of Fit and Proper Person Declarations submitted to ASQA by your governing persons.
  • Failing to ensure a governing person submits an updated Declaration to ASQA because they dismiss an issue as minor – for example, a guilty verdict that did not result in a conviction being recorded being dismissed as ‘only a fine'.
  • Assuming that a matter is not material and therefore does not require disclosure, rather than adopting a full disclosure approach and allowing suitability to be assessed in context.
  • Failing to document the rationale for decisions relating to the suitability of governing persons or any actions taken to manage identified risks.   

Self-assurance questions

  1. How do you ensure that you have identified all the governing persons in your RTO to whom the Fit and Proper Person Requirements apply?
  2. What due diligence do you do during your routine recruitment and performance management of your RTO staff to ensure that they are fit and proper for their role?
  3. What escalation process do you have in place for assessing information/circumstances where one of your governing persons may no longer meet the FPPRs? What action would you take, and how would you report this to ASQA?
  4. How do you educate your staff regarding their obligation to report concerns over the fitness or propriety of a colleague? What information do you make available within your RTO about ASQA’s Tip-Off Line?  

Case study

Disclosing changes in circumstances

TUF Institute (TUF) is a medium-sized RTO delivering business and community services qualifications through its own trainers and a regional third-party partner. Its register of governing persons is mapped against each role’s responsibilities and influence in relation to TUF’s management and operations. Before appointment, governing persons undergo identity, referee, management history, conflict-of-interest, police and financial probity checks. The Chief Executive Officer also verifies each governing person’s Fit and Proper Person Declaration (FPPD) and ensures that they understand the obligation to promptly disclose any change in circumstances, including matters that may appear minor, unresolved or unrelated to VET.  

During induction, the newly appointed Operations Manager disclosed that a former company she managed had entered administration 3 years earlier. She provided the liquidator’s report, explained her role and confirmed that no finding of misconduct had been made. Rather than assuming the matter was immaterial, the RTO activated its escalation procedure. A board subcommittee with no conflict of interest assessed the seriousness, recency and relevance of the matter including the relevant individual’s management record and whether her continued appointment with their RTO could pose a risk. The subcommittee sought independent advice, recorded the evidence considered and documented why the available information did not indicate dishonesty, unethical conduct or an unacceptable risk to students or the RTO. As a proportionate safeguard, the board assigned additional oversight of financial decisions for 6 months and scheduled a review.  

The CEO ensured the Operations Manager made a full and frank disclosure to ASQA and retained the FPPD, supporting evidence, assessment and decision in its governance records. It also checked whether the matter affected any other notification obligations. This approach demonstrates that compliance is active and ongoing: the RTO identifies all relevant people, encourages disclosure where there is doubt, assesses each matter fairly and in context, manages risk transparently, keeps an auditable trail and monitors fitness and propriety over time.

Do Fit and Proper Person Requirements only apply to governing persons?

It is important that providers recognise the Fit and Proper Person Requirements (FPPRs) as a positive obligation requiring active and ongoing education and monitoring of staff involved in VET delivery. Governing person is a defined term in the instrument and means any person responsible for overseeing, directing, or exercising a degree of control or influence over the management or operation of an RTO, including executive officers and high managerial agents. Providers must ensure that all of its governing persons submit a Fit and Proper Person Declaration to ASQA.

Are trainers and assessors required to submit a Fit and Proper Person Declaration? How would this work in the VET in schools context where school teachers are already registered under their own State registration requirements?

Providers have a positive obligation to ensure that all staff involved in VET delivery are fit and proper. The Fit and Proper Person Declaration however, applies to all governing persons, including:

(a) an executive officer of the RTO;

(b) a high managerial agent of the RTO; or

(c) any person responsible for overseeing, directing, or exercising a degree of control or influence over the management or operation of the RTO.

Providers may also be asked by ASQA to provide a declaration for any individual at any time.

Are Board Directors required to submit the Fit and Proper Person Declaration to ASQA?

All governing persons of the RTO are required to submit a Fit and Proper Person Declaration. Board Directors that have responsibility for overseeing, directing or exercising a degree of control or influence over the management or operations of the RTO would be considered governing persons.

How often do providers need to submit Fit and Proper Person Declarations to ASQA?

All governing persons must submit a ‘fit and proper person’ declaration whenever their RTO:

  • applies for initial registration
  • applies for renewal of registration, or
  • employs a new governing person.

Do Fit and Proper Person (FPP) declarations need to be updated or resubmitted regularly, even if there are no changes?

No. FPP declarations are not required to be routinely resubmitted where there have been no changes. However, the Fit and Proper Person Requirements are ongoing obligations, and providers are responsible for ensuring their governing persons continue to meet those requirements.

Where a relevant change occurs, providers must notify us as required. We may also request updated declarations or supporting information during registration, renewal, audit, change-of-ownership, or other regulatory activities.   

 

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