An examination of the updated Fit and Proper Person Form, the legislative definition of high managerial agent, the regulatory expectations for consultants who participate in management or represent providers at audit, and the practical challenges this framework creates for the advisory market
The Updated Fit and Proper Person Form and Its Implications for the Consulting Sector
The national regulator updated its Fit and Proper Person Form on 1st December 2025. The form is a component of the broader fit and proper person requirements embedded in the registration framework under the National Vocational Education and Training Regulator Act 2011, which establishes fit and proper compliance as a condition of registration. The update to the form has renewed attention across the sector to a question that has persisted for several years: how do the fit and proper person requirements apply to external consultants who provide compliance, management, and advisory services to registered training organisations?
Source: ASQA, Fit and Proper Person Form (updated 1 December 2025, asqa.gov.au); National Vocational Education and Training Regulator Act 2011 (Federal Register of Legislation).
This question is not new. Industry discussion indicates that the application of fit and proper person requirements to consultants has been a recurring subject of debate within the sector for a considerable period, including at formal sector engagement forums. The update to the form has brought the question back into focus because the form’s scope, the definitions it references, and the declarations it requires have direct implications for individuals and entities that provide advisory and management support services to registered training organisations. The following examination draws on publicly available legislation, regulator guidance, and published regulatory material to assess the current position.
The Legislative Framework: Fit and Proper Person Requirements
The National Vocational Education and Training Regulator Act 2011 establishes fit and proper person requirements as a condition of registration for registered training organisations. The Act provides for the assessment of whether relevant persons associated with a registered training organisation meet the fit and proper person standard. The regulator’s published practice guide describes fit and proper expectations and indicates that the assessment can involve matters such as compliance with law, management history, the provision of information to the regulator, and previous conduct and involvements.
Source: National Vocational Education and Training Regulator Act 2011 (Federal Register of Legislation); ASQA, practice guide on fit and proper person requirements (asqa.gov.au).
The scope of persons who may be subject to fit and proper person assessment is a critical element of the framework. The Act and associated regulatory guidance do not limit the requirement to directors and officers of the registered training organisation in the traditional corporate governance sense. The framework extends to persons who occupy positions of influence, control, or management within the organisation, including persons who may not hold a formal title or employment relationship with the provider but who exercise functions that fall within the regulatory definition of relevant persons.
The Concept of High Managerial Agent
A key concept in the application of fit and proper person requirements to consultants is the definition of a high managerial agent. The term derives from the Criminal Code Act 1995 (Cth), which defines a high managerial agent of a body corporate as an employee, agent, or officer of the body corporate with duties of such responsibility that their conduct may fairly be assumed to represent the body corporate’s policy. This definition is significant because it extends beyond formal employment relationships to include agents — a category that can encompass external consultants, contractors, and service providers.
Source: Criminal Code Act 1995 (Cth), s 12.1; National Vocational Education and Training Regulator Act 2011 (Federal Register of Legislation).
The application of this definition to the VET sector means that a consultant who performs functions of sufficient responsibility within a registered training organisation may be characterised as a high managerial agent, regardless of whether the consultant is an employee, a contractor, or an external service provider. The determining factor is not the formal nature of the engagement but the substance of the functions performed and the level of responsibility those functions carry. A consultant whose role involves making decisions on behalf of the provider, directing compliance activity, managing audit responses, or exercising control over key operational or governance functions may meet the threshold of a high managerial agent under the legislative definition.
When Consultants Trigger the Fit and Proper Person Requirement
Published regulatory material provides some guidance on the circumstances in which a consultant’s engagement with a registered training organisation may trigger the fit and proper person requirement. A publicly available webinar published by the Western Australian Government on fit and proper person requirements for Training Accreditation Council-regulated registered training organisations addresses this question directly. The webinar material states that high managerial agents, including consultants, who take part in the management of the organisation would need to make fit and proper person declarations. The material draws a distinction between consultants who advise and consultants who participate in management decision-making or represent the provider at an audit.
Source: Western Australian Government, Fit and Proper Person Requirements for TAC Regulated RTOs webinar (wa.gov.au).
Specifically, the published webinar material indicates that consultants who merely advise are not taking part in management and are therefore not making decisions that would trigger the requirement. However, consultants who act as decision-makers within the organisation, or who represent the registered training organisation at audit, would be required to make fit and proper person declarations. This distinction — between advisory functions and management or representational functions — is the central line of demarcation in determining whether a consultant falls within the scope of the fit and proper person framework.
The practical difficulty lies in the application of this distinction to the diverse range of consulting engagements that exist across the sector. Many consulting arrangements do not fall neatly into one category or the other. A consultant may be engaged to provide advisory services in principle, but in practice may exercise significant influence over compliance decisions, direct the preparation of evidence for audit, manage communications with the regulator, or attend and participate in regulatory audit processes on behalf of the provider. Each of these activities moves the engagement closer to the management and representational threshold identified in the published guidance.
The Practical Challenges for Consultants
The application of fit and proper person requirements to consultants raises a series of practical challenges that have been the subject of ongoing industry discussion. The first and most immediate challenge concerns the scope of the declaration itself. The Fit and Proper Person Form requires the declarant to provide information about compliance history, management history, and previous conduct and involvement. For a consultant who has worked with a large number of registered training organisations over an extended career — potentially spanning decades and encompassing hundreds of provider engagements — the task of accurately completing the declaration across all relevant dimensions is operationally complex. The declaration is made under formal regulatory conditions, and inaccurate or incomplete declarations may themselves become a regulatory concern.
The second challenge concerns client confidentiality. Consultants providing compliance and management advisory services to registered training organisations are typically engaged under arrangements that involve access to confidential and commercially sensitive information about the provider’s operations, compliance position, and regulatory history. The Fit and Proper Person Form may require the disclosure of information that intersects with these confidentiality obligations, creating a tension between the regulatory requirement to declare and the contractual or professional obligation to maintain client confidence. This tension is not addressed in the published form or guidance in a manner that provides a clear resolution for consultants facing the competing obligations.
The third challenge is the question of enforceability. The extent to which the national regulator actively enforces the completion of fit and proper person declarations by consultants, as distinct from directors, officers, and formal management personnel, is not clearly established in publicly available material. The regulatory framework provides the legal basis for requiring declarations from persons who fall within the definition of high managerial agent, but the practical enforcement of this requirement in respect of consultants appears to vary. The absence of clear and consistent enforcement creates uncertainty about the practical significance of the requirement and may contribute to inconsistent compliance practices across the consulting sector.
The Influence and Control Question
At the core of the fit and proper person question for consultants is the concept of influence and control. The regulatory framework is designed to ensure that persons who exercise material influence or control over the operations of a registered training organisation meet the fit and proper person standard. This design reflects a legitimate regulatory interest in ensuring that the individuals who shape a provider’s compliance behaviour, governance practices, and operational decisions are persons of appropriate character and competence.
For consultants, the question of influence and control is often one of degree rather than kind. A consultant who provides occasional, discrete advice on a specific compliance question exercises limited influence and is unlikely to meet the threshold of a high managerial agent. A consultant who is engaged on an ongoing basis to manage the provider’s compliance program, direct the preparation of audit evidence, attend audits on behalf of the provider, communicate with the regulator as a representative of the provider, and make or materially influence governance and management decisions exercises a level of influence and control that is functionally equivalent to that of an internal management position. The latter engagement is more likely to trigger the fit and proper person requirement, regardless of the formal characterisation of the arrangement.
The difficulty for both providers and consultants is that many engagements fall somewhere between these two ends of the spectrum, and the published guidance does not provide a detailed framework for assessing where a particular engagement sits on the continuum. The binary distinction between advising and managing, while conceptually useful, does not fully capture the range of activities that consultants perform in practice. Clearer regulatory guidance on the application of the high managerial agent definition to common consulting engagement models would assist both providers and consultants in determining their obligations.
Implications for Registered Training Organisations
The fit and proper person requirements for consultants do not only create obligations for the consultants themselves. They also have significant implications for the registered training organisations that engage consulting services. The fit and proper person framework is a condition of the provider’s registration, and the provider bears the primary responsibility for ensuring that all persons who fall within the scope of the requirement have been identified and have completed the necessary declarations.
Where a provider engages a consultant who meets the threshold of a high managerial agent — because the consultant participates in management, exercises decision-making authority, or represents the provider at audit — the provider has a responsibility to ensure that the consultant has completed the Fit and Proper Person Form. Failure to do so may constitute a failure to comply with the fit and proper person requirements of registration, which is a matter that the regulator may raise in the context of an audit, compliance inquiry, or enforcement proceeding.
This responsibility extends to the ongoing monitoring of consulting engagements to determine whether the nature of the engagement has changed over time. A consultant who was initially engaged in a purely advisory capacity may, over the course of the engagement, assume additional responsibilities that bring them within the scope of the fit and proper person requirement. Providers should ensure that their governance processes include periodic review of consulting arrangements to assess whether the scope and nature of the engagement triggers any regulatory obligations, including fit and proper person declarations.
The Advisory Market: Structural Implications
The application of fit and proper person requirements to consultants has structural implications for the advisory market that serves the registered training organisation sector. The requirement introduces a regulatory dimension to consulting engagements that did not previously exist in such explicit form, and it creates considerations for both providers and consultants that go beyond the commercial and operational terms of the engagement.
For consultants, the requirement may influence the way engagements are structured. Consultants who wish to avoid triggering the fit and proper person requirement may limit the scope of their engagements to advisory functions only, declining to participate in management decision-making or to represent providers at audit. This approach preserves the consultant’s position outside the high managerial agent definition but may also limit the value and scope of the services that can be provided. Providers, in turn, may need to engage separate personnel to perform the management and representational functions that the consultant has excluded from their scope.
For providers, the requirement introduces a due diligence obligation in the selection and engagement of consulting services. Where a consulting engagement is likely to involve management-level functions or audit representation, the provider should confirm that the consultant is willing and able to complete the Fit and Proper Person Form and should factor this into the engagement terms. Providers that engage consultants in management-level roles without ensuring compliance with the fit and proper person requirements assume a regulatory risk that sits with the provider, not with the consultant.
ASQA Cost Recovery Consultation: Fee Increases Under Public Consultation
In a related development, the national regulator has published a public consultation on its fees and charges for 2026–27. The published consultation material indicates that the proposed fee changes are intended to reflect the actual current regulatory effort. The consultation is publicly accessible on the national regulator’s website and is open for submissions from registered providers and other stakeholders.
Source: ASQA, Public Consultation on ASQA Fees and Charges 2026–27 (asqa.gov.au).
The consultation on fee increases occurs in a context where industry commentary reflects concerns about the responsiveness and accountability of the national regulator. Reports from across the sector indicate experiences of extended waiting periods for responses to regulatory queries, delays in the processing of applications, and challenges in obtaining timely guidance on compliance matters. The relationship between the cost of regulation borne by providers and the quality and timeliness of regulatory service delivery is a legitimate area of sector concern, and the public consultation provides a formal mechanism through which that concern can be communicated.
Providers and advisory professionals are encouraged to review the consultation material and to submit responses within the published timeframe. The consultation represents an opportunity to provide evidence-based feedback on the proposed fee structure and on the service delivery expectations that providers consider reasonable in the context of the fees charged. The consultation material is available on the national regulator’s website at asqa.gov.au.
Clarity Needed on Consultant Obligations
The fit and proper person requirements, as they apply to consultants engaged by registered training organisations, remain an area of significant practical uncertainty. The legislative framework provides a clear basis for requiring fit and proper person declarations from high managerial agents, and publicly available regulatory material confirms that consultants who participate in management or represent providers at audit fall within this scope. However, the practical application of this framework to the diverse range of consulting engagements that exist across the sector is not straightforward, and the published guidance does not provide the level of detail needed to resolve the ambiguities that practitioners regularly encounter.
The challenges of completing the declaration across multiple provider engagements, the tension between regulatory disclosure obligations and client confidentiality, and the uncertainty about enforcement practices all contribute to an environment in which compliance behaviour varies widely across the consulting sector. Both registered training organisations and the consultants who serve them would benefit from clearer and more detailed regulatory guidance on the application of the fit and proper person requirements to common consulting engagement models, including guidance on the boundary between advisory and management functions, the treatment of confidential information in the declaration process, and the expectations for consultants with extensive multi-provider engagement histories.
Until such clarity is provided, registered training organisations should apply a risk-based approach to the identification of consulting engagements that may trigger the fit and proper person requirement, and consultants should carefully assess the nature and scope of each engagement to determine whether it brings them within the definition of high managerial agent under the applicable legislative framework. Both parties should seek independent legal advice where the application of the requirement is uncertain.
