Ann: Clark Property and International Training Update, page-11

I've spent an afternoon reading up on the Australian business trying to get a rough handle on the risk profile that might exist in a worst case scenario for the Aus biz. For disclosure, I am a lawyer although I have no specialty in the ACL, the education sector or the assessment of HELP claims or education provider registrations, and also I have no been bothered to completely untangle the numerous recent proceeding but rather just enough to get a flavour of things. The following are just my personal opinions and nothing more.

The legal proceedings are confusing as there is overlap between Product Partners and Site, and cases arguing over payment of the unpaid $29m due to PP, the decision to refuse renewal of the RTO status of PP / SIT, and then the ACCC case for misleading/unconscionable conduct which we don't have full details yet. Further complication is that arguments so far lost seem be lost on technical grounds ie wrong jurisdiction or relief being sought.

1. Unpaid $29m http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/1562.html?context=1;query=%22Productivity%20Partners%20Pty%20Ltd%22%20;mask_path=

2. RTO rego: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2019/1970.html?context=1;query=%22Productivity%20Partners%20Pty%20Ltd%22%20;mask_path=

3. Another example of the ACCC proceedings which have no yet commenced in SIT's case. See https://www.accc.gov.au/media-release/accc-action-against-captain-cook-college-for-alleged-systemic-unconscionable-conduct and then as an example of another prosecution see http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/1408.html?context=1;query=Empower%20Institute;mask_path=

The best I can come up with is:

• The department originally reviewed the request for payment of $34m in HELP funding for courses provided by PP. The dept looked at the services provided by PP justifying the $34m claim, and elected to only pay ~$5m on the basis that those were legit enrolments while the rest were questionable (eg student never logged into the online platform). This seems consistent with the ACCC complaint.
• SIT appealed the refusal to pay the $29m and the Court rejected the argument on technical grounds. As far as I could tell, it remains open for SIT to sue the dept for money as a simple debt claim, rather than the chosen path of an application for judicial review of a department decision affecting legal rights.
• In the meantime, the department has been chasing PP and SIT for non-compliance in its course and education offerings, basically looking to shut SIT down from offering further courses. Extensive steps have been reportedly taken by SIT to get up to code, but the department is refusing the RTO rego on the basis past non-compliance rendering the keyman of SIT not fit and proper for RTO rego. The rego matter is still up in the air at this stage as far as I can tell, and there is a stay on decision to refuse rego renewal until the mess is untangled.
• I've linked a judgment in another matter brought by the ACCC as an example of what has been happening in this space. I am not saying for a second SIT has engaged in conduct of that nature or that this is being alleged by the ACCC. Rather it is just an example for what's been happening in the space.