Commonwealth Numbered Regulations - Explanatory Statements
[Index] [Search] [Download] [Related Items] [Help]
NATIONAL VOCATIONAL EDUCATION AND TRAINING REGULATOR AMENDMENT (ENFORCEMENT) REGULATION 2015 (SLI NO 28 OF 2015)
EXPLANATORY STATEMENT
Select Legislative Instrument 2014 No.
National Vocational Education and Training Regulator Act 2011
National Vocational Education and Training Regulator Amendment (Enforcement) Regulation 2015
Authority
Section 235 of the National Vocational Education and Training Regulator Act 2011 (the Act) prescribes the power for the Governor-General to make regulations under the Act. In particular, subsection 235(1) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or matters necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 111(2) of the Act sets out that where an NVR registered training organisation does an act or omits to do an act where the act or omission breaches a condition of registration prescribed by the regulations, such a breach would incur a civil penalty.
Section 149 of the Act provides for infringement notices to be issued in respect of civil penalty provisions. In particular, subsection 149(1) provides that the regulations may provide for a person, who is alleged to have contravened a civil penalty provision, to pay the Commonwealth a specified penalty, as an alternative to civil penalty proceedings against the person.
The amendment Regulation will prescribe the conditions of registration which, if breached, are subject to civil penalty. The amendment Regulation will rely on section 149 to establish the infringement notice scheme in respect of specified civil penalty provisions.
Background
The National VET Regulator (the Regulator) was established on 1 July 2011 under the National Vocational Education and Training Regulator Act 2011.
Purpose and operation
The National Vocational Education and Training Regulator Amendment (Enforcement) Regulation 2015 (the amendment Regulation) will serve two main purposes. First, it will make regulations that allow the Regulator to use an infringement notice scheme to recover amounts of civil penalties as an alternative to the prosecution of civil penalty proceedings. Second, it will make regulations that prescribe conditions of registration that will be subject to civil penalties. It is intended that the measures will allow the Regulator to quickly address negative behaviours in the sector through financial sanctions without affecting the provision of services to students.
The objective of the introduction of the infringement notice scheme is to allow the Regulator to have full access to the suite of compliance tools anticipated by the enabling legislation and to enable the Regulator to manage its compliance activities more efficiently in line with Vocational Education and Training (VET) reform objectives. It is intended that the inclusion of the infringement notice scheme will enable the Regulator to impose fines for breaches of civil penalty provisions without affecting the operation of the NVR registered training organisation or the provision of services to students. The infringement notice scheme specified in the amendment Regulation has been prepared in accordance with the relevant sections of the Regulatory Powers (Standard Provisions) Act 2014. The infringement notice scheme has also been prepared in accordance with the Guide to Framing Commonwealth Offence, Infringement Notices and Enforcement Powers (September 2011 Edition).
Regulation Impact Statement
The Office of Best Practice Regulation has advised that a regulatory impact statement is not required.
Commencement
The amendment Regulation commences as follows:
* sections 1 to 4 commence on the day after the amendment Regulation is registered
* Schedule 1 commences on 2 April 2015
* Schedule 2 commences on the later of immediately after the commencement of Schedule 1 and the commencement of Schedule 1 to the National Vocational Education and Training Regulator Amendment Act 2015 - but if that Act does not commence, then Schedule 2 will not commence at all.
Consultation
The Regulator has been consulted regarding the making of this instrument. The concept of an infringement notice scheme and a civil penalty for breaches of conditions of registration was part of the initial consultations for the Act when provision for the scheme was first drafted. This consultation was widespread and involved industry stakeholders and states and territories. Specific consultation on the infringement notice scheme was undertaken with the state and territories and key industry stakeholders, including peak bodies, in February 2015. No concerns were raised. Final consultations took place in March 2015 on the infringement notice scheme and proposed regulation.
Detailed explanation of provisions
Section 1 - Name of Regulation
This section provides that the title of the Regulation is the National Vocational Education and Training Regulator Amendment (Enforcement) Regulation 2015 (the amendment Regulation).
Section 2 - Commencement
This section provides for the amendment Regulation to commence as follows:
* sections 1 to 4 shall commence on the day after the amendment Regulation is registered
* Schedule 1 shall commence on 2 April 2015
* Schedule 2 shall commence on the later of immediately after the commencement of Schedule 1, and the commencement of Schedule 1 to the National Vocational Education and Training Regulator Amendment Act 2015 - but if that Act does not commence, then Schedule 2 will not commence at all.
Section 3 - Authority
This section provides that the amendment Regulation is made under the National Vocational Education and Training Regulator Act 2011(the Act).
Section 4 - Schedule(s)
This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.
Schedule 1 - Amendments Commencing 2 April 2015
Item 1 inserts a new heading before regulation 1 - "Part 1- Preliminary".
Item 2 repeals and substitutes regulation 3. New regulation 3 contains a note which provides an updated list of expressions used in the National Vocational Education and Training Regulator Regulations 2011 (the Principal Regulations) for which definitions can be found in the Act. Item 2 also inserts the definition of Act which refers to the National Vocational Education and Training Regulator Act 2011. It also inserts a definition of infringement officer which has the meaning given by regulation 8. This item also inserts a definition of subject to an infringement notice which has the meaning given by regulation 7.
Item 3 inserts a new heading "Part 2 - Registering as an NVR registered training organisation" before regulation 4.
Item 4 repeals regulation 5 and substitutes new Parts as follows:
* Part 3 - Enforcement
* Part 4 - National Vocational Education and Training Regulator
* Part 5 - Application and transitional provisions
Part 3 - Enforcement
Division 1 - Civil penalties in relation to conditions of registration
Under subsection 111(2) of the Act, an NVR registered training organisation is liable to a civil penalty of up to 120 penalty units if it breaches a condition of registration that is prescribed by the Principal Regulations for the purposes of paragraph 111(2)(a) of the Act.
This means that a contravention of one or more of the conditions prescribed by the regulations could result in a Court imposing a civil penalty against an NVR registered training organisation. The purpose of this amendment is to widen the enforcement options available to the Regulator. It is intended that this should not affect the provision of services to students.
New regulation 5 prescribes the following provisions for the purposes of paragraph 111(2)(a):
* subsection 22(3) (compliance with the Data Provision Requirements)
* section 24 (satisfying the Financial Viability Risk Assessment Requirements)
* section 25 (notifying the National VET regulator of material changes).
Division 2 - Infringement notices
Division 2 creates a framework for the use of infringement notices.
By operation of section 149, an infringement notice may be issued to a person who breaches a condition of registration prescribed by the Principal Regulations. An infringement notice will give the person to whom the notice is issued the option of either paying the penalty set out in the notice to expiate a civil penalty contravention, or electing to have the matter dealt with by a court. The notice will also specify the time and method for payment and the consequences if the person to whom the notice is issued fails to respond to the notice either by making payment or electing to contest the alleged contravention.
The policy intent behind the introduction of an infringement notice scheme is to allow the Regulator to have access to the full suite of compliance tools anticipated by the enabling legislation and to enable the Regulator to manage its compliance activities more efficiently, in line with VET reform objectives.
The Act provides that certain conduct might give rise to an offence, or alternatively, a civil penalty. Where the Regulator decides to prosecute an offence or a civil penalty provision, the process of pursuing prosecution through the Courts can be costly and time consuming.
An infringement notice scheme that allows for the recovery of up to a maximum of one-tenth of a total civil penalty provides a simpler and faster remedy to an alleged contravention of a provision than pursuing prosecution of the offence provisions. It is intended that the inclusion of an infringement notice scheme will enable the Regulator to impose fines for breaches of civil penalty provisions without affecting the operation of the NVR registered training organisation, or the provision of services to students. In deciding whether to prosecute under the offence provisions, or pursue recovery of civil penalties, the culpability of conduct is one of the circumstances that the Regulator would take into account. However, the more deliberate or flagrant the conduct the greater the likelihood is that this would be reflected in prosecution under the offence provisions, as opposed to a fine under the infringement notice scheme.
New regulation 6 provides that new Division 2 of Part 3 is made for the purposes of section 149 of the Act. Section 149 provides that the regulations may provide for a person who is alleged to have contravened a civil penalty provision under the Act to pay a specified penalty of no more than one-tenth of the maximum penalty for contravening the provision to the Commonwealth, as an alternative to civil penalty proceedings.
New regulation 7 specifies the civil penalty provisions of the Act which are subject to an infringement notice. These are:
* section 94 - providing all or part of a VET course outside the scope of registration
* section 96 - issuing a VET qualification outside the scope of registration
* section 98 - issuing a VET statement of attainment outside the scope of registration
* section 100 - advertising all or part of a VET course outside the scope of registration
* section 112 - failure to return a certificate of registration
* section 115 - falsely claiming to be an NVR registered training organisation
* section 117 - providing, or offering to provide, all or part of a VET course without registration
* section 119 - issuing a VET qualification
* section 121 - issuing a VET statement of attainment
* section 123 - making false or misleading representation in advertisement
* section 125 - making false or misleading representation relating to VET course or VET qualification
* section 127 - purporting to issue a VET qualification
* section 129 - purporting to issue a VET statement of attainment.
New regulation 8 sets out the meaning of infringement officer for the purposes of new Division 2 of Part 3, which includes the following persons:
* a Commissioner
* an SES or acting SES employee of the Regulator
* an Executive Level 2 or acting Executive Level 2 employee of the Regulator
* an employee of the Regulator who occupies an office or holds a position equivalent to that of a Commissioner, an SES employee or an Executive Level 2 position.
A person who is an infringement officer for the purposes of exercising the powers of Division 2, Part 3 will also be an infringement officer for the purposes of exercising other powers under Division 2 or performing functions and duties which are incidental to exercising the powers under the Division Part 3.
New regulation 9 sets out when an infringement notice may be given.
New subregulation 9(1) provides that an infringement officer may issue an infringement notice where the infringement officer has reasonable grounds to believe that a person has contravened a provision subject to an infringement notice under Division 2 of Part 3.
New subregulation 9(2) requires that an infringement notice must be issued within 12 months of an alleged contravention (an infringement notice issued later than this would be invalid and would be unenforceable).
New subregulation 9(3) provides that a single infringement notice must be issued for each alleged contravention, unless new subregulation 9(4) is applicable.
New subregulation 9(4) provides that an infringement officer may give a person a single infringement notice relating to multiple contraventions of a single provision in circumstances where:
* the provision requires the person to do a thing within a particular period or before a particular time; and
* the person fails or refuses to do that thing within that period or before that time; and
* the failure or refusal occurs on more than one day; and
* each contravention is constituted by the failure or refusal on one of those days.
A note included in this subregulation provides a reference to section 141 of the Act (continuing and multiple contraventions of civil penalty provisions).
New regulation 10 sets out the matters that must be included in an infringement notice.
New subregulation 10(1) sets out the matters that an infringement notice must contain which are listed in new paragraphs 10(1)(a) to (n). A note at the end of new subregulation 10(1) draws the reader's attention to subsection 149(2) of the Act to remind the reader that an amount payable under an infringement notice in relation to an alleged contravention of a civil penalty provision must not exceed one-tenth of the maximum prescribed for the contravention.
New subregulation 10(2) provides that the notice may include any other matters the infringement officer considers necessary.
New regulation 11 provides that in certain circumstances, an extension of time may be given for an infringement notice to be paid and that the Regulator may extend the period to pay more than once. The purpose of this provision is to ensure that a person who wishes to pay an infringement notice is not prevented from doing so by financial hardship or other difficulties.
New subregulation 11(1) provides that a person, who has been issued with an infringement notice may apply to the Regulator for an extension of time to pay the infringement notice. In accordance with new paragraph 10(h), the period within which a person must pay an infringement notice, is 28 days.
New subregulation 11(2) provides that if an application is made before the end of the payment period referred to in new paragraph 10(h), the Regulator may, in writing, extend that period either before or after the end of the 28 day period.
New subregulation 11(3) provides that if the Regulator extends the period for payment of an infringement notice, a reference to the period referred to in new paragraph 10(h) which appears in this Division or in a notice or other instrument in this Division, is taken to be a reference to the extended period.
New subregulation 11(4) provides that if the Regulator does not extend the period, a reference in this Division, or in a notice of instrument under this Division to the period in new subregulation 10(h) will be a reference to the period that ends on the later of either (a) the day that is the last day of the period referred to in paragraph 10(h) or (b) the day on which it is 7 days after the day on which the person was given notice by the Regulator that it would not extend the period.
New subregulation 11(5) provides that the Regulator may extend the period referred to in new subregulation 11(2) more than once.
New regulation 12 concerns the processes for withdrawing infringement notices.
New subregulation 12(1) provides that a person who has been issued with an infringement notice may make written representations to the Regulator seeking to have the notice withdrawn.
New subregulation 12(2) provides that the Regulator may withdraw an infringement notice, even if the person to whom it has been issued does not provide written representations seeking its withdrawal.
New subregulation 12(3) sets out the information the Regulator must and may take into account in making a decision about whether or not to withdraw an infringement notice.
New paragraph 12(3)(a) provides that the Regulator must take into account any written representations seeking the withdrawal that were given by the person to the Regulator.
New paragraph 12(3)(b) sets out the things that the Regulator may take into account. These include whether a court has previously imposed a penalty on the person for a contravention of a provision subject to an infringement notice under this Division which is included in the same Act or legislative instrument as the provision in relation to which the infringement notice is given. The Regulator may also take into account the circumstances of the alleged contravention. In addition, the Regulator may also consider whether the person has paid an amount, specified in an earlier infringement notice, for contravening a provision subject to an infringement notice under this Division if the contravention is the same, or substantially the same, as the conduct alleged to constitute the contravention in the infringement notice. The Regulator also has the discretion to take into account any other matter it considers relevant.
New subregulation 12(4) provides that in circumstances where the Regulator withdraws an infringement notice, the Regulator must give notice to the person. That notice must state the person's name and address, the day the infringement notice was given, the identification number of the infringement notice, that the infringement notice is withdrawn and that proceedings seeking a civil penalty order may be brought in relation to the contravention.
New subregulation 12(5) provides that the notice may include any other matters the Regulator considers necessary.
New subregulation 12(6) provides for the refund of an infringement notice which has been paid, in circumstances where the notice is subsequently withdrawn.
New subregulation 12(7) deals with the notice requirements for a refusal to withdraw an infringement notice. Where the Regulator refuses to withdraw an infringement notice given to a person, the Regulator must give notice of the decision to refuse. The notice must include the person's name and address, the day the infringement notice was given, the identifying number of the notice, a statement indicating the infringement notice is not withdrawn and the period referred to in paragraph 10(h) is extended to the period ending 28 days after the day the notice of the refusal is given.
New subregulation 12(8) provides for the period of payment to be extended in circumstances where the Regulator refuses to withdraw an infringement notice. In these circumstances a reference to the period referred to in paragraph 10(h) is taken to be a reference to the period ending 28 days after the day the notice of the refusal is given.
New regulation 13 sets out the effect of payment of the infringement notice.
New subregulation 13(1) provides that if a person to whom an infringement notice is given pays the amount stated in the notice before the end of the payment period specified in paragraph 10(h), any liability of the person for the alleged contravention is discharged and proceedings in relation to a civil penalty order may not be brought in relation to the alleged contravention. The person will not be considered to have admitted guilt or liability for the alleged contravention.
New subregulation 13(2) provides that subregulation 13(1) does not apply where a notice has been withdrawn.
New regulation 14 sets out the effect of Division 2 of Part 3.
New paragraph 14(a) provides that this Division does not make an infringement notice a mandatory response to an alleged contravention.
New paragraph 14(b) provides that this Division does not affect a person's liability for an alleged contravention of a provision subject to an infringement notice if the person does not comply with a notice, a notice is not given to the person, or a notice is withdrawn after having been given.
New paragraph 14(c) states that Division 2 of Part 3 does not prevent 2 or more infringement notices being given to a person for an alleged contravention of a provision subject to an infringement notice.
New paragraph 14(d) provides that this Division does not limit a court's ability to determine the amount of a penalty if a person is found to have contravened a provision subject to an infringement notice.
Part 4 - National Vocational Education and Training Regulator
New regulation 15 reinstates regulation 5 to provide that, for the purpose of subsection 155(2) of the Act, the Regulator may also be known as the Australian Skills Quality Authority.
Part 5 - Application and transitional provisions
New regulation 16 is an application provision.
New subregulation 16(1) provides that Division 1 of Part 3 of these Regulations, as inserted by item 4 of Schedule 1, applies in relation to acts and omissions that occur after the commencement of this subregulation.
New subregulation 16(2) provides that Division 2 of Part 3 of these Regulations, as inserted by item 4 of Schedule 1, applies in relation to contraventions of civil penalty provisions that occur after the commencement of this subregulation.
Schedule 2 - Amendments contingent on the National Vocational Education and Training Regulator Amendment Act 2015
Schedule 2 commences on the later of immediately after the commencement of Schedule 1, and the commencement of Schedule 1 to the National Vocational Education and Training Regulator Amendment Act 2015 - but if that Act does not commence, then Schedule 2 will not commence at all.
If enacted, item 3 of Schedule 1 to the National Vocational Education and Training Regulator Amendment Act 2015 amends the Act to insert a new section 123B to provide for a new civil penalty provision for publishing or broadcasting an advertisement, causing an advertisement to be published or broadcast, offering to provide, or making a representation about the availability of all or part of a VET course without identifying the name and registration code of the NVR registered training organisation that will issue the VET qualification or statement of attainment.
Item 1 of Schedule 2 to the proposed Regulation enables the new section 123B civil penalty provision to be included in the infringement notice scheme contingent upon passage of the National Vocational Education and Training Regulator Amendment Act 2015 (by inserting subparagraph (ja) after new subregulation 7(j)).
Item 2 of Schedule 2 to the proposed Regulation amends new regulation 16 to provide that the amendment to be made by item 1 of this Schedule 2 applies in relation to contraventions of civil penalty provisions after the commencement of item 2.
The inclusion of Schedule 2 prevents the need to amend the Principal Regulation once the National Vocational Education and Training Regulator Amendment Act 2015 is enacted.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Legislative Instrument 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 Legislative Instrument
The National Vocational Education and Training Regulator Amendment (Enforcement) Regulation 2015 (the amendment Regulation) serves two main purposes. First, it will make regulations that allow the National VET Regulator (the Regulator) to use an infringement notice scheme as an alternative to prosecution of civil penalty or offence proceedings in addressing certain breaches (prescribed in the amendment Regulation), of the National Vocational Education and Training Regulator Act 2011 (the Act). Second, it will make regulations that prescribe the conditions of registration that will be subject to civil penalties for which an infringement notice may be given. It is intended that these measures will allow the Regulator to deal with people who contravene a civil penalty provision in the Act through financial sanctions without affecting the provision of services to students and will provide the Regulator with an alternative enforcement option.
The objective of the introduction of the infringement notice scheme is to allow the Regulator to have full access to the suite of compliance tools anticipated by the enabling legislation and to enable the Regulator to manage its compliance activities more efficiently, in line with VET reform objectives. It is intended that the inclusion of an infringement notice scheme will enable the Regulator to impose fines for breaches of certain prescribed civil penalty provisions without affecting the operation of the NVR registered training organisation or the provision of services to students.
Human rights implications
The amendment Regulation engages the following human rights:
* the right to a fair and public hearing - Article 14 of the International Covenant on Economic, Social and Cultural Rights
* the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights
* the right to freedom of opinion and expression - Article 19 of the International Covenant on Civil and Political Rights
Right to a fair and public hearing
Article 14 of the International Covenant on Economic, Social and Cultural Rights ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
The regulation engages the right to a fair and public hearing through the creation of an infringement notice scheme. An infringement notice can be issued by an infringement officer for contraventions of a civil penalty provision that is enforceable under the Act.
The right of a person to a fair and public hearing by a competent, independent and impartial tribunal is preserved by the amendment Regulation as a person may elect to have their matter heard by a court rather than pay the amount specified in the notice. Additionally, the amendment Regulation outlines that this right must be stated in an infringement notice issued to a person, ensuring that a person issued with an infringement notice is aware of their right to have the matter heard by a court. The proposed infringement notice scheme is also in line with the Attorney General's Department's Guide to Framing Commonwealth Offence, Infringement Notices and Enforcement Powers (September 2011 Edition).
The regulation also engages the right to a fair and public hearing by the application of civil penalties onto a number of provisions pursuant to section 111(2) of the Act. The right of a person to a fair and public hearing by a competent, independent and impartial tribunal is preserved by the amendment Regulation as the matter will be heard by a court.
The amendment Regulation is compatible with the right to a fair and public hearing.
Right to education
The amendment Regulation 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 regulation seek to protect the integrity of the Vocational Education and Training (VET) sector by ensuring there are strong quality assurance mechanisms in place in order for high quality training outcomes to be delivered to 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.
As such, the amendment Regulation will implement an infringement notice scheme that will allow for the imposition of a fine for contraventions of certain provisions in the Act. Some of these provisions place restrictions on a person's ability to provide vocational education training if they are not registered to do so. This restriction, however, is necessary to ensure that the training provided is of an acceptable standard and quality. This restriction helps to ensure that students gain the knowledge or skills of the qualification offered, by only letting a person provide a course, once they have demonstrated that they and/or their organisation has the required systems in place to deliver quality training. Ensuring quality of training in this manner also allows the broader economy to have faith in the Australian qualifications system. The measure is appropriate and adapted to a legitimate end.
The amendment Regulation is compatible with the right to education.
Right to freedom of opinion and expression
The amendment Regulation engages the right to freedom of opinion and expression contained in article 19 of the International Covenant on Civil and Political Rights.
The amendment Regulation imposes an infringement notice scheme for provisions in the Act which may place restrictions on the content of advertisements that relate to VET courses. This measure is designed to protect the integrity of the VET sector. It will also enable prospective students to have confidence that an entity offering a course is registered to do so and as such, will have met the minimum standards for quality.
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. To the extent that the right to freedom of opinion and expression is engaged, any limitation on the right is reasonable and appropriate, and adapted to achieving the legitimate purpose of ensuring integrity in the VET sector.
Conclusion
The amendment Regulation is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback