Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL VOCATIONAL EDUCATION AND TRAINING
REGULATOR AMENDMENT BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Assistant Minister for Education and
Training, Senator the Honourable Simon Birmingham)
National Vocational Education and Training Regulator
Amendment Bill 2015
OUTLINE
The National Vocational Education and Training Regulator Act 2011 and the
National Vocational Education and Training Regulator (Transitional
Provisions) Act 2011 were passed by Parliament on 24 March 2011.
These Acts established a National VET Regulator (the Regulator) for the
vocational education and training sector, now known as the Australian Skills
Quality Authority, to operate from 1 July 2011. The Regulator has regulatory
responsibility for registered training organisations in referring states and
territories. In non-referring states, Victoria and Western Australia, the
Regulator has responsibility for training organisations offering training to
international students, and for registered training organisations also operating
in a referring state or a territory.
This Bill contains amendments to the National Vocational Education and
Training Regulator Act 2011 that support ongoing reform measures, including
reducing regulatory burden for NVR registered training organisations,
protecting the integrity of the VET system, giving the Regulator capacity to
respond to emerging issues, and technical amendments to improve the
efficiency and operation of the Act and, consequently, the Regulator.
1
FINANCIAL IMPACT STATEMENT
The financial impact of the measures in the Bill is expected to be nil or
insignificant. The amendments in the Bill form part of the broader vocational
education and training reforms. The amendments are expected to create
administrative efficiencies for the Regulator and the registered training
organisations it regulates.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
NATIONAL VOCATIONAL EDUCATION AND TRAINING
REGULATOR AMENDMENT BILL 2015
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
A high quality vocational education and training (VET) sector is fundamental
to a skilled workforce and a productive economy. The purpose of the National
Vocational Education and Training Regulator Amendment Bill (the Bill) is to
amend the National Vocational Education and Training Act 2011 (the NVETR
Act), to introduce measures to protect the integrity of the VET system, to
provide better balance between protection and regulation of the VET system
and to make amendments to improve the efficiency and operation of the
NVETR Act and consequently the Australian Skills Quality Authority (the
Regulator).
The main measures in the Bill include:
enhancing quality in the VET sector
improving transparency in the marketing of VET courses
reducing regulatory burden through extension of registration periods
administrative amendments to existing provisions identified as needing
clarification.
Analysis of human rights implications
Right to education
The Bill engages the right to education contained in article 13 of the
International Covenant on Economic, Social and Cultural Rights. Article 13
recognises the important personal, societal, economic and intellectual benefits
of education.
The measures in the Bill seek to protect the integrity of the VET sector. The
VET sector needs strong quality assurance in order to deliver high quality
3
training outcomes for students. An individual`s qualifications should be a
reliable measure for employers about the knowledge and skills that they
possess, regardless of where they were trained. The Bill will implement a
number of measures that will improve VET, which will in turn benefit both the
individuals receiving training, and the broader economy.
Right to freedom of opinion and expression
The Bill engages the right to freedom of opinion and expression contained in
article 19 of the International Covenant on Civil and Political Rights.
Schedule 1 of the Bill includes a provision which places additional
requirements on the content of advertisements that relate to VET courses
(item 3 - sections 123A and 123B). This measure is designed to provide
greater transparency in the marketing of VET courses. It will enable
prospective learners to clearly identify who is responsible for the VET course,
allowing them to seek redress if required against the organisation responsible
for their learning. The imposition is relatively minor; the advertisement or offer
must identity the name and registration number of the registered training
organisation responsible for the VET course. No other additional prescriptions
around how this is to be done will be imposed.
The proposed limitation on the right to freedom of expression is reasonable
and appropriate, and adapted to achieving the legitimate purpose of increased
transparency in the VET sector. The Commonwealth does not seek to restrict
the right to expression in regards to vocational education, but rather to put in
place obligations to protect vulnerable learners.
Right to privacy and reputation
The Bill engages the right to privacy and reputation contained in article 17 of
the International Covenant on Civil and Political Rights.
Schedule 1 of the Bill includes a provision that clarifies the Regulator`s ability
to share information collected in the course of its operations (item 12 - section
205A). An individual`s privacy is protected by the requirement to notify a
person in writing if their private information is disclosed. Item 12 repeals and
substitutes section 205A of the NVETR Act, which currently allows the
Regulator to disclose VET information to the Tertiary Education Quality and
Standards Agency (TEQSA) to enable it to perform or exercise its functions or
powers. New section 205A enables the Regulator to disclose VET information
to Royal Commissions, or to Commonwealth or state or territory authorities if
disclosure is necessary for the receiving authority to perform or exercise its
functions or powers. It is necessary to amend the provision so that the
Regulator can share VET information beyond TEQSA. This will improve the
Regulator`s ability to cooperate with other government entities, such as the
Australian Competition and Consumer Commission, in removing dishonest
providers from the VET sector. New Section 205A contains an additional
safeguard - namely that when the Regulator discloses VET information that is
4
personal information to a Royal Commission, it must provide details to the
person concerned.
Right to minimum guarantees in criminal proceeding
The Bill engages the right to minimum guarantees in criminal proceedings
contained in article 14 of the International Covenant on Civil and Political
Rights. Article 14(g) recognises the right not to be compelled to testify against
oneself or to confess guilt.
Schedule 1 of the Bill contains an administrative amendment to the provision
relating to self-incrimination (item 22 - paragraphs 65(2)(e) and (f)). This
amendment does not alter the existing right regarding self-incrimination but
rather clarifies that an individual`s rights exist for both civil and criminal
proceedings. The amendment will make it easier for an individual to
understand their rights when reading the NVETR Act.
Right to a fair hearing
The Bill engages the right to a fair hearing contained in article 14(1) of the
International Covenant on Civil and Political Rights.
Schedule 1 of the Bill contains a measure relating to the issuing of a written
direction to comply with conditions of registration (item 13 - section 35A). The
amendment enables the Regulator to better use tools available in relation to
issuing written notices through streamlining the processes before a written
direction to comply with the NVETR Act is issued. This measure does not
remove any common law natural justice rights; it removes the requirement to
follow prescriptive steps in regards to issuing a notice of intention to issue a
written direction. The requirement to issue a notice of intention remains in
place for administrative sanctions. The decision to issue a written direction will
remain a reviewable decision.
Conclusion
The Bill is compatible with human rights because it advances human rights
and, to the extent that it may limit human rights, those limitations are
reasonable, necessary and proportionate.
5
NATIONAL VOCATIONAL EDUCATION AND TRAINING
REGULATOR AMENDMENT BILL 2015
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides for the Bill, once enacted, to be cited as the National
Vocational Education and Training Regulator Amendment Act 2015.
Clause 2 - Commencement
Subclause 2(1) inserts a three column table setting out commencement
information for various provisions in the Bill. Each provision of the Bill
specified in column 1 of the table commences (or is taken to have
commenced) in accordance with column 2 of the table and any other
statement in column 2 has effect according to its terms.
The table has the effect of providing for the following commencement times:
Sections 1 to 3 and anything else in the Bill that is not covered by the
table commence on the day the Bill, once enacted, receives the Royal
Assent.
Schedules 1 and 2 commence on the day after the Bill, once enacted,
receives the Royal Assent.
A note explains that the commencement times in the table will not be
amended should the provisions of this Act be amended by any future Act.
Subclause 2(2) provides that column 3 of the table is for additional information
which may be added to or edited in any published version of the Bill but that
information is not part of the Bill.
Clause 3
This clause provides that each Act that is specified in a Schedule is amended
or repealed as set out in that Schedule.
List of abbreviations used in this Explanatory Memorandum
Regulator means the National VET Regulator - the Australian Skills Quality
Authority.
NVETR Act means the National Vocational Education and Training Regulator
Act 2011.
VET means vocational education and training.
6
7
Schedule 1 Vocational education
and training
Summary
Schedule 1 to the Bill would make amendments to the NVETR Act to address
a range of issues, including to:
- insert or clarify definitions for Ministerial Council, registered training
organisation, registration code, Quality Standards and VET
information
- extend the operation of penalty provisions to trading corporations
- create a new offence of prohibiting a person from advertising or
offering to provide all or part of a VET course without including the
name and registration code of the responsible registered training
organisation
- extend the period of registration able to be granted by the Regulator
from 5 to 7 years
- provide that the Minister may, by legislative instrument, make Quality
Standards
- provide that it is a condition of registration that an NVR registered
training organisation must satisfy the Quality Standards
- state to whom, and for what purpose, the Regulator may disclose VET
information
- improve the processes around the Regulator issuing a written direction
- clarify that a person employed in a court of a state or territory may
issue a search warrant if authorised under a law to do so.
Schedule 1 would also provide for application and transitional provisions for
some of these amendments.
Background
The Bill is designed to address a number of concerns that have arisen in the
course of the Regulator carrying out its functions under the NVETR Act.
Quality Standards
Concerns have been raised about the ability of the VET sector to respond to
emerging issues promptly and effectively, which has the potential to impact
upon the quality of training offered by registered training organisations.
Quality Standards will address the quality of training by establishing a new
standard to address emerging issues which impact on the quality and integrity
of training for individuals and students. The Quality Standards will provide a
8
method by which unanticipated changes in the VET sector may be quickly
addressed.
It is the Government`s intention that in establishing the Quality Standard
consultation would take place with key stakeholders including state and
territory ministers, and industry, before the standard is made.
A Quality Standard would be instituted where current standards are not
sufficient for a particular issue that affects the quality of outcomes for
students.
Advertising or offering VET courses
Concerns have been raised about the surreptitious manner in which VET
courses are marketed. It can be, at times, unclear to students enrolling online
who is responsible for their course. The purpose of the amendment to be
made by the Bill is to provide greater transparency in the marketing of VET by
requiring those persons marketing VET courses, including brokers, to be
explicit in their communication and advertising to prospective learners about
which organisation will be responsible for issuing the qualification or
statement of attainment.
Administrative improvements
The Regulator has, in the course of carrying out its functions, identified a
number of areas where administrative improvements may reduce regulatory
burden and improve efficiency. Combined with feedback from stakeholders
from across the VET sector, the Bill will provide a number of administrative
improvements, to streamline processes and to reduce regulatory burden on
the sector.
Detailed explanation
Part 1 - Advertising or offering VET courses
National Vocational Education and Training Regulator
Act 2011
Item 1
This item inserts a definition of registration code in section 3. The definition
of registration code is intended to provide greater clarity about what must be
included in an advertisement or offer for all or part of a VET course. The
registration code for a registered training organisation is the code entered on
the National Register for the organisation.
Item 2
9
This item adds a new subsection 8(6) which extends the operation of the
penalty provisions contained in Subdivisions B and C of Division 1 of Part 6 to
trading corporations. This will ensure that the penalties provided for in
Subdivisions B and C of Division 1 of Part 6 will apply to trading corporations,
as well as training organisations. This amendment will facilitate the
Regulator`s ability to respond to issues arising from entities that are not
training organisations.
Item 3
This item inserts new sections 123A and 123B. New section 123A provides
that it is an offence for a person to publish or broadcast or continue to publish
or broadcast an advertisement relating to all or part of a VET course, cause
an advertisement relating to all or part of a VET course to be published or
broadcast or continue to be published or broadcast, or offer to provide or
continue to offer to provide all or part of a VET course, or make a
representation or continue to make a representation about the availability of
all or part of a VET course without including the name and registration code of
the registered training organisation that will issue a VET qualification or VET
statement of attainment relating to the VET course or the part of the VET
course. Such an offence gives rise to a penalty of 60 penalty units.
New section 123B relates to the same conduct but, instead of providing for an
offence, provides for a civil penalty of 120 civil penalty units.
These amendments are designed to ensure that prospective learners are fully
informed about the registered training organisation that will be issuing the
record of their learning. It is intended that a prospective student should easily
be able to identify who is responsible for the VET course, noting that the
placement of the registered training organisation`s name and code would
depend on the type of media being used. The penalties are consistent with
benchmarks outlined in the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers, as well as existing penalties
in the NVETR Act, such as section 122.
Item 4
This item inserts the new section 123A into the table in section 133A, creating
a new table item 12A. The purpose of this addition is to ensure that an
executive officer of a registered training organisation which contravenes
section 123A will be personally liable for the offence.
Item 5
This item inserts a new section 233A, which ensures that no action may be
taken against a person for refusing or failing to publish or broadcast an
advertisement, or make an offer, if doing so is prohibited by the NVETR Act.
Part 2 - Period of registration
10
National Vocational Education and Training Regulator
Act 2011
Item 6
This item amends subsection 17(5) to extend the period of registration that
the Regulator may grant from 5 years up to a period of 7 years. The purpose
of this amendment is to reduce the regulatory burden on NVR registered
training organisations by extending the time period between re-registrations.
Part 3 - Quality Standards
National Vocational Education and Training Regulator
Act 2011
Item 7
This item inserts a definition of Quality Standards in section 3 of the NVETR
Act, which will carry the meaning ascribed to that term in new section 231A.
Item 8
This item will amend the definition of VET Quality Framework in section 3 to
ensure it also encompasses the Quality Standards.
Item 9
This item amends section 22 to add compliance with the Quality Standards as
a condition of registration. It ensures that NVR registered training
organisations must comply with the Quality Standards as a condition of
registration.
Item 10
This item inserts a new section 231A to provide the Minister with the power to
make standards relating to quality in the VET sector, which will be known as
the Quality Standards. This amendment will allow the Minister to make a
standard that is responsive to emerging issues in the sector that impact on the
quality and integrity of training for individuals and students.
It is the Government`s intention that in establishing the Quality Standard
consultation would take place with key stakeholders including state and
territory ministers, and industry, before the standard is made.
A Quality Standard would be instituted where current standards are not
sufficient for a particular issue that effects the quality of outcomes for
students.
Part 4 - Operational improvements
11
Division 1 - Disclosure of VET information
National Vocational Education and Training Regulator
Act 2011
Item 11
This item repeals the definition of VET information in section 3, and replaces
it with a new definition. The new definition of VET information is information
held by the Regulator relating to the performance of its functions and includes
information and documents it collects in the course of exercising its powers
and functions under the NVETR Act, or in administering the NVETR Act. This
amendment clarifies what information held by the Regulator constitutes VET
information for the purposes of the NVETR Act.
Item 12
This item repeals and substitutes section 205A of the NVETR Act, which
currently allows the Regulator to disclose VET information to the Tertiary
Education Quality and Standards Agency to enable it to perform or exercise
its functions or powers. New section 205A enables the Regulator to disclose
VET information to Royal Commissions, or to Commonwealth or state and
territory authorities if the Regulator is satisfied disclosure is necessary for the
receiving authority to perform or exercise its functions or powers. It is
necessary to amend the provision to improve the Regulator`s ability to
cooperate with a range of other government entities in removing dishonest
providers from the VET sector. For example, this provision will enable the
Regulator to share VET information with state and territory consumer
protection authorities.
New section 205A contains an additional safeguard - namely that when the
Regulator discloses VET information that is personal information to a Royal
Commission, it must provide details to the person concerned.
Division 2 - Directions to rectify breaches of
conditions
National Vocational Education and Training Regulator
Act 2011
Item 13
This item inserts a new Subdivision AA in Division 3 of Part 2, consisting of
new section 35A concerning directions to rectify breaches of conditions. New
section 35A provides that the Regulator is able to issue a written direction to
an NVR registered training organisation when it determines it is appropriate to
rectify a breach of a condition of the organisation`s registration. In determining
whether it is appropriate to provide a written direction, the Regulator may
12
have regard to the organisation`s conduct or circumstances before the
Regulator had reason to consider giving a direction (including before new
section 35A commences). This provides flexibility to the Regulator in
determining when to issue a written direction, without being required to issue
a notice of intention. This provision streamlines the processes required for the
Regulator to issue a written direction. This measure does not remove any
common law natural justice rights.
New subsection 35A(3) makes it clear that the Regulator may also take
enforcement action under Part 6 in addition to, or instead of, giving a section
35A direction.
Item 14
This item repeals paragraph 36(2)(a) in its entirety, as new section 35A (see
item 13) deals with the subject matter of this paragraph.
Division 3 - Requests for information, documents or
things
National Vocational Education and Training Regulator
Act 2011
Item 15
This item replaces the heading of section 62 with Requests for information,
documents or things. This amendment is so that the heading better indicates
the contents of the section.
Item 16
This item amends subsection 62(1) to insert , or with an organisation that
holds itself out, or has at any time held itself out, as such an organisation
after former registered training organisation. This broadens the scope of
section 62, and allows the Regulator to request information from a person
connected with an organisation currently or previously holding itself out to be
a registered training organisation, rather than just persons from NVR
registered training organisations or former registered training organisations.
Division 4 - VET Quality Framework
National Vocational Education and Training Regulator
Act 2011
Item 17
This item replaces Australian Qualifications Framework with VET Quality
Framework in paragraph 209(1)(c). The purpose of this amendment is to
allow the Regulator to release information to the public if satisfied that this will
encourage compliance with all of the requirements of the NVETR Act, not just
the Australian Qualifications Framework. The VET Quality Framework is
13
defined in section 3 as meaning: the Standards for NVR Registered Training
Organisations; the Australian Qualifications Framework; the Fit and Proper
Person Requirements; the Financial Viability Risk Assessment Requirements;
and the Data Provision Requirements. Item 8 also includes the Quality
Standards in the definition of the VET Quality Framework.
Part 5 - Administrative changes
Division 1 - Registered training organisations
National Vocational Education and Training Regulator
Act 2011
Item 18
This item inserts a note after the definition of registered training
organisation in section 3 to make it clear that the definition of registered
training organisation is inclusive of all registered training organisations, not
just those registered by the Regulator.
Division 2 - Issuing officer
National Vocational Education and Training Regulator
Act 2011
Item 19
This item broadens the definition of issuing officer in section 3, to include a
person employed in a court of a State or Territory who is authorised under a
law to issue search warrants.
This amendment is intended to include persons, other than magistrates, that a
state or territory has authorised to issue search warrants under that state or
territory`s law. It is expected these will be quasi-judicial officers such as
registrars and justices of the peace.
For example Section 3 of the Law Enforcement (Powers and Responsibilities)
Act 2002 (NSW) provides:
"authorised officer" means:
(a) a Magistrate or a Children's Magistrate, or
(b) a registrar of the Local Court, or
(c) an employee of the Attorney General's Department authorised by
the Attorney General as an authorised officer for the purposes of this
Act either personally or as the holder of a specified office.
14
Other state and territory legislation has similar provisions.
The purpose of the amendment is to allow applicable court processes to apply
in the relevant jurisdiction.
Division 3 - Ministerial Council
National Vocational Education and Training Regulator
Act 2011
Item 20
This item repeals and substitutes the definition of Ministerial Council in
section 3 so that it means a body established by the Council of Australian
Governments to deal with training and skills or, if there is no such body, the
Ministerial Council will be as prescribed by the regulations under the
NVETR Act.
Division 4 - Reviewable decisions
National Vocational Education and Training Regulator
Act 2011
Item 21
This item repeals and substitutes section 199 which lists reviewable decisions
of the Regulator. The new table now includes a column listing the provision
under which the reviewable decision can be made. The purpose of this
amendment is to provide increased clarity around reviewable decisions. The
new section 199 also incorporates amendments made by item 13.
This item also includes an additional row in the table in section 199, clarifying
that both changing and amending a registered training organisation`s scope of
registration are a reviewable decision. The purpose of the amendment is to
clarify that both amending` and changing` scope of registration decisions are
reviewable decisions.
Division 5 - Self-incrimination
15
National Vocational Education and Training Regulator
Act 2011
Item 22
This item repeals and substitutes paragraphs 65(2)(e) and (f). The purpose of
this amendment is to clarify that the immunity available under section 65 of
the NVETR Act extends to civil proceedings for contravening a civil penalty
provision as well as criminal proceedings. There is no change to an
individual`s rights under this section. This amendment clarifies a contradiction
in the NVETR Act and its explanatory memorandum and expresses the
section in a less confusing way.
16
Schedule 2 Transitional provisions
National Vocational Education and Training Regulator
(Transitional Provisions) Act 2011
Item 1
This item replaces the heading at Schedule 1 of the National Vocational
Education and Training Regulator (Transitional Provisions) Act 2011 with
Schedule 1--Transitional provisions relating to the National Vocational
Education and Training Regulator Act 2011 as originally enacted. This
amendment is so that the heading better indicates the contents of the
Schedule.
Item 2
This item creates a new Schedule 2 to the National Vocational Education and
Training Regulator (Transitional Provisions) Act 2011 with the heading
Schedule 2--Transitional provisions relating to the National Vocational
Education and Training Regulator Amendment Act 2015. This new Schedule
2 consists of the following five items:
Item 1 of Schedule 2
The item inserts definitions of Amending Act and Principal Act in new
Schedule 2. Amending Act means the National Vocational Education
and Training Regulator Amendment Act 2015 (once enacted) and
Principal Act means the NVETR Act.
Item 2 of Schedule 2
This item is an interpretation provision and provides that expressions
used in Schedule 2 that are also used in the NVETR Act have the
same meaning as in the NVETR Act.
Item 3 of Schedule 2
This item is an application provision and ensures that the offence
created by item 3 of Schedule 1 to this Bill (which inserts new sections
123A and 123B into the NVETR Act) will not apply to the display of an
advertisement or an offer in a publication that was published before the
commencement of item 3, and would not be reasonably practicable to
be altered. This recognises that, in some circumstances, it may not be
reasonably practicable to alter an advertisement, such as hard copy
advertisements published in a telephone directory.
Item 4 of Schedule 2
17
This item is an application provision and allows the Regulator to grant a
7 year period of registration for a NVR registered training organisation,
whether the application for registration was made before, on, or after
the commencement of item 6 of Schedule 1 to this Bill (which amends
subsection 17(5) to extend the period of registration that the Regulator
may grant from 5 years up to a period of 7 years).
Item 5 of Schedule 2
This item is an application provision and provides that if, before the
commencement of this item 5, the Regulator had given a
NVR registered training organisation a written notice under section 37
of the NVETR Act, then sections 36 and 37 of the NVETR Act continue
to apply, in relation to the making of the decision, despite the
amendments to be made by items 13 and 14 of Schedule 1 to the Bill.
This provision provides certainty to NVR registered training
organisations that have been given a written notice under section 37 of
the NVETR Act before the commencement of the amendments in items
13 and 14.
Item 6 of Schedule 2
This item is an application provision which provides that amendments
made by item 21 of Schedule 1 to this Bill (which repeals and
substitutes the section 199 table of reviewable decisions) apply to
decisions made before, on or after the commencement of item 21.
This provision provides certainty regarding amendments to reviewable
decisions made by item 21.
18