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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL VOCATIONAL EDUCATION AND TRAINING
REGULATOR AMENDMENT (GOVERNANCE AND
OTHER MATTERS) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment, Skills, Small
and Family Business, Senator the Hon Michaelia Cash)
NATIONAL VOCATIONAL EDUCATION AND TRAINING
REGULATOR AMENDMENT (GOVERNANCE AND OTHER
MATTERS) BILL 2020
OUTLINE
The purpose of the National Vocational Education and Training Regulator
Amendment (Governance and Other Matters) Bill 2020 (the Bill) is to amend the
National Vocational Education and Training Regulator Act 2011 (NVETR Act) to
strengthen the governance arrangements in relation to the National VET Regulator.
The amendments support consistent, fit for purpose, and effective regulation and will
enhance stakeholder engagement in Australia's vocational education and training
(VET) sector.
The amendments build on reforms introduced in the National Vocational Education
and Training Regulator Amendment Bill 2019 and address a number of
recommendations of the 2018 Braithwaite review, 'All eyes on quality: Review of the
National Vocational Education and Training Regulator Act 2011 report' as well as
recommendations in the 2019 Joyce review, 'Strengthening Skills: Expert Review of
Australia's Vocational Education and Training System'. Both reviews called on the
National VET Regulator to adopt a greater educative role and improve its regulatory
approach.
In late 2019, regulatory experts were engaged to conduct a rapid review of the
Australian Skills Quality Authority's (ASQA's) regulatory practices, governance, and
culture. Amendments in the Bill reflect the expert advice provided on governance
from the first phase of the rapid review. These changes will support improvements to
the National VET Regulator's governance arrangements, regulatory practice and
other critical areas of business such as strategy, communication and sector
engagement.
The amendments revise the National VET Regulator's governance structure,
replacing the existing Chief Commissioner/Chief Executive Officer (CEO) and two
Commissioners with a single independent statutory office holder. The National VET
Regulator will be appointed by the Governor-General on a full time basis and will be
the agency head for the purposes of the Public Service Act 1999. Further, the
National VET Regulator may also be known as the CEO of ASQA. These
amendments will enable the National VET Regulator to perform a role more
consistent with that of an agency head, including leading the long and short term
strategy and making top-level managerial decisions that determine the objectives,
resources and policies of ASQA. The Bill makes a series of consequential
amendments to the NVETR Act, to give effect to the change to the governance
structure.
To support the National VET Regulator, the Bill also establishes the National
Vocational Education and Training Regulator Advisory Council (Advisory Council).
The Advisory Council will provide the National VET Regulator with access to expert
advice regarding the functions of the Regulator.
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The governance measures in the Bill will strengthen the National VET Regulator's
capacity to implement changes to the Regulator's practice and efficiently manage the
volume of regulatory decisions in the Regulator's purview. Further, the amendments
will enhance the National VET Regulator's capacity to engage with the sector and
facilitate greater capacity for internal review of decisions for NVR registered training
organisations (NVR RTOs).
In addition to governance measures, the Bill includes amendments to improve
information sharing under the NVETR Act in relation to information collected by the
National Centre for Vocational Education Research (NCVER) under the Data
Provision Requirements 2012 (Data Provision Requirements). These amendments
will facilitate information flows to support more informed policy development and
funding allocation for VET.
FINANCIAL IMPACT STATEMENT
The Bill has no financial impact on NVR RTOs. $18.1 million has been committed by
the Australian Government through Mid-Year Economic and Fiscal Outlook 2019-20
to the reform of ASQA.
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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
(Governance and Other Matters) Bill 2020
The National Vocational Education and Training Regulator Amendment (Governance
and Other Matters) Bill 2020 (the 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
The purpose of the Bill is to amend the National Vocational Education and Training
Regulator Act 2011 (NVETR Act) to strengthen the governance arrangements in
relation to the National VET Regulator. The amendments support consistent, fit for
purpose, and effective regulation and will enhance stakeholder engagement in
Australia's vocational education and training (VET) sector.
The amendments in Schedule 1 to the Bill revise and strengthen the governance
arrangements for the National VET Regulator by replacing the existing Chief
Commissioner/Chief Executive Officer (CEO) and two Commissioners with a single
independent statutory office holder. The National VET Regulator will be appointed by
the Governor-General on a full time basis for a period not exceeding five years and:
may be known as the CEO of the Australian Skills Quality Authority;
will be the accountable authority for the listed entity known as the Australian
Skills Quality Authority for the purposes of the Public Governance
Performance and Accountability Act 2013 (PGPA Act); and
will be the head of the statutory agency (comprised of the National VET
Regulator and staff engaged under the Public Service Act 1999 (Public
Service Act)) for the purposes of the Public Service Act.
Further amendments include provisions for acting arrangements, remuneration and
allowances, leave, outside employment, resignation, termination and other terms and
conditions for the National VET Regulator. The amendments also provide that a
person who is an executive officer of a registered training organisation (RTO) or has
held such a role in the two years prior to appointment will not be eligible for
appointment as the National VET Regulator.
The reconstituted National VET Regulator's functions will be very similar to the
functions exercised by it and the CEO. Delegation arrangements for the National
VET Regulator remain the same so that the Regulator will be able to delegate the
Regulator's functions and powers to staff, consultants, Commonwealth authorities
and a person who holds any office or appointment under a law of the
Commonwealth.
4
The Minister will continue to be able to give directions to the National VET Regulator,
noting that the directions will need to be in relation to the performance of the
Regulator's functions or the exercise of the Regulator's powers and that they must
not be in relation to particular NVR registered training organisations (NVR RTOs) or
accreditation of a particular VET accredited course.
For the purposes of the PGPA Act, the listed entity will be known as the Australian
Skills Quality Authority (ASQA) which will be comprised of the National VET
Regulator, members of staff of the Regulator, and consultants engaged under the
NVETR Act. The National VET Regulator, staff of the Regulator and consultants
engaged under the NVETR Act will all be officials of the listed entity.
The Bill also establishes the National Vocational Education and Training Regulator
Advisory Council (Advisory Council). The Advisory Council will consist of a Chair
and up to nine other members, appointed on a part-time basis for up to three years.
The Minister must consult with the Ministerial Council before appointing Advisory
Council members. Advisory Council members must satisfy specified eligibility criteria
in order to be appointed. The Bill contains provisions relating to acting arrangements,
the determination of remuneration and allowances, leave, disclosure of interests,
resignation, termination and other terms and conditions for members of the Advisory
Council.
The Advisory Council will provide the National VET Regulator with access to expert
advice regarding the Regulator's functions. The Advisory Council will not provide
advice to the National VET Regulator in relation to particular NVR RTOs, registered
providers under the Education Services for Overseas Students Act 2000, or
particular VET accredited courses. The Bill also makes provision for the Minister to
give written directions to the Advisory Council about the performance of its function.
The amendments relating to the Advisory Council will facilitate continuous
improvement of the National VET Regulator's practices and create a mechanism for
meaningful engagement with industry and other stakeholders. The Advisory Council
may provide advice to the National VET Regulator on the Council's initiative or at the
request of the Minister or the National VET Regulator. The National VET Regulator
will be required to have regard to advice from the Advisory Council in performing the
Regulator's functions.
Schedule 2 of the Bill includes amendments to improve information sharing in
relation to information collected by the National Centre for Vocational Education
Research (NCVER) under the Data Provision Requirements 2012 (Data Provision
Requirements), a legislative instrument published on the Federal Register of
Legislation. These amendments support the operation of the National VET Data
Policy that was endorsed in 2017 by the Ministerial Council and which is available on
the Department's website (in February 2020 the policy could be accessed at
https://www.employment.gov.au/national-vet-data-policy-0).
Schedule 3 of the Bill contains amendments to the National Vocational Education
and Training Regulator (Transitional Provisions) Act 2011 (NVETR Transitional
Act). These amendments set out the transitional and application arrangements for
the amendments in Schedule 1 and Schedule 2 of the Bill, including some
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comprehensive transitional arrangements in relation to things done by, or in relation
to, a Commissioner or the Chief Executive Officer, and things done by the National
VET Regulator before commencement.
Human rights implications
The Bill engages the following human rights:
The right to education - Article 13 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR);
The right to privacy and reputation - Article 17 of the International Covenant
on Civil and Political Rights (ICCPR);
The right to work - Article 6 of the ICESCR.
Right to education
The Bill engages the right to education contained in Article 13 of the ICESCR. Article
13 recognises the important personal, societal, economic and intellectual benefits of
education.
The measures in the Bill promote the right to education because they seek to
strengthen the integrity and quality of the VET sector, as well as safeguard the best
interests of students who are engaged in VET.
Specifically, the Bill contains provisions that establish an Advisory Council to provide
advice to the National VET Regulator in relation to all of the Regulator's functions.
The Advisory Council will be comprised of members with relevant regulatory
expertise. The provision of expert advice to the Regulator will enhance the quality of
advice that the Regulator relies upon in making decisions, and will encourage and
foster a more informed approach by the Regulator. This will enable the National VET
Regulator to support best practice regulation, continuous improvement of the VET
sector and ensure meaningful engagement between the Regulator and key VET
stakeholders. The provision of expert advice for consideration by the Regulator will
facilitate better decisions in relation to VET delivery, leading to more quality training
outcomes for students, thus promoting their right to education. To the extent that
these measures engage the right to education, they are a positive engagement of
the right as they will support better educational outcomes for VET students overall.
The Bill also contains provisions which improve information sharing by authorising
NCVER and the Department to disclose information collected under the Data
Provision Requirements to the entities listed in the Bill. This will enable the diverse
needs and requirements of all Australians, including people with disability and those
for whom English is not a first language, to be considered in policy, funding and
regulation. To the extent that these measures engage the right to education, they are
a positive engagement of the right as the individual needs of students can be better
supported, resulting in better educational outcomes for all VET students.
The Bill is compatible with the right to education.
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Right to privacy and reputation
The Bill engages the right to privacy and reputation contained in Article 17 of the
ICCPR. Article 17 recognises that persons should not be subject to arbitrary or
unlawful interference with an individual's privacy, family, home or correspondence,
nor unlawful attacks on the individual's honour and reputation.
The Bill contains measures which engage the right to privacy and reputation as it
contains provisions that authorise:
NCVER to disclose information collected in accordance with the Data
Provision Requirements to the Department, another Commonwealth authority,
a State or Territory authority (other than a registered training organisation)
that deals with or has responsibility for matters relating to VET or a VET
regulator, for those bodies purposes;
NCVER to disclose information collected in accordance with the Data
Provision Requirements to persons engaged by NCVER to conduct research
on NCVER's behalf; and
the Department to disclose personal information collected from NCVER in
accordance with these new provisions for the purposes of the Department, to
a Commonwealth authority or a person engaged by the Secretary to carry out
an activity on behalf of the Department.
The information that NCVER and the Department are being authorised to disclose
under these provisions may contain personal information.
NCVER is a not-for-profit Australian company, established by Commonwealth, State
and Territory Ministers responsible for VET. It is responsible for collecting,
managing, analysing and communicating research and statistics about the Australian
VET sector. NCVER collects information about VET students from RTOs as required
under the Data Provision Requirements, which are a legislative instrument made
under the NVETR Act. This information includes 'personal information' within the
meaning of the Privacy Act 1988.
Information is shared through sophisticated technology that protects data from
external cyber threats. Data stored in systems is only accessed by authorised
personnel and disclosed in accordance with protocols that ensure personal
information is protected. To the extent that these measures place a limitation on the
right to privacy, such limitation is considered just, reasonable and proportionate for
the following reasons:
Where NCVER is authorised to disclose information with the bodies listed in
the Bill for the purposes of the body, the bodies are limited to the Department,
Commonwealth authorities, State and Territory authorities (other than
registered training organisations) that deals or has responsibility for matters
relating to VET and VET regulators:
o The sharing of personal information is to enable the effective:
administration of VET, including program administration,
regulation, monitoring, and evaluation;
facilitation of statistics and research relating to education,
including surveys and data linkage; and
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understanding of how the VET market operates, for policy,
workforce planning, and consumer information.
o It is essential that governments and regulators have access to the
information collected by NCVER under the Data Provision
Requirements so that the spectrum of individual circumstances can be
considered in policy, funding and regulatory decision-making.
Students are provided with a privacy notice in accordance with Australian
Privacy Principle 5 by their RTO at the time their personal information is
collected by their RTO (usually during enrolment) that sets out relevant
information including the purposes for which the RTO collects their
information and to whom the student's information will be disclosed.
NCVER may only disclose the information for its purposes to a person
engaged by NCVER to conduct research on behalf of NCVER.
The Department responsible for the administration of the NVETR Act may
only disclose the information to a limited number of bodies for its own
purposes, those being a Commonwealth authority or a person engaged by the
Department to carry out an activity on the Department's behalf.
The Minister's power to make 'information safeguard rules' by legislative
instrument as agreed to by the Ministerial Council (to ensure cross-
jurisdictional input) adds an additional layer of protection to safeguard the
disclosure of personal information. These rules give the Minister the capacity
to prescribe particular requirements for these bodies, which further
safeguards a person's privacy.
The Bill is compatible with the right to privacy and reputation.
Right to work
The Bill also engages the right to work contained in Article 6(1) of the ICESCR.
Article 6(1) recognises the right to work, which includes the right of everyone to the
opportunity to gain one's living by work which he or she freely chooses or accepts.
Broadly, the measures in the Bill are all designed to improve and enhance the
National VET Regulator's ability to regulate the VET sector, leading to improvements
in students' educational outcomes and ultimately in their preparedness to take up
opportunities to work. The measures in the Bill therefore, generally, have a positive
impact on the right to work and promote that right.
The Bill is compatible with the right to work.
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 necessary, just,
reasonable and proportionate.
Senator the Hon Michaelia Cash, Minister for Employment, Skills, Small and
Family Business
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LIST OF ABBREVIATIONS
Acts Interpretation Act Acts Interpretation Act 1901
ASQA Australian Skills Quality Authority
Advisory Council National Vocational Education and Training
Regulator Advisory Council
Braithwaite Review Review report prepared by Professor Valerie
Braithwaite titled 'All eyes on quality: Review of
the National Vocational Education and Training
Regulator Act 2011' (as of 30 January 2020
this report can be accessed at:
https://docs.employment.gov.au/documents/all-
eyes-quality-review-national-vocational-
education-and-training-regulator-act-2011)
CEO Chief Executive Officer
Data Provision Requirements Data Provision Requirements 2012
ESOS Act Education Services for Overseas Students Act
2000
HESA Higher Education Support Act 2003
Joyce Review 'Strengthening Skills: Expert review of
Australia's Vocational Education and Training
System' by the Hon Steven Joyce (as of 30
January 2020 this report can be accessed at
https://www.pmc.gov.au/resource-
centre/domestic-policy/vet-
review/strengthening-skills-expert-review-
australias-vocational-education-and-training-
system.)
Ministerial Council The body established by the Council of
Australian Governments to deal with training
and skills. That body is currently called the
Council of Australian Governments Skills
Council.
National VET Regulator National Vocational Education and Training
Regulator
9
NCVER National Centre for Vocational Education
Research
NVETR Act National Vocational Education and Training
Regulator Act 2011
NVETR (Charges) Act National Vocational Education and Training
Regulator (Charges) Act 2012
NVR RTO NVR registered training organisation
NVETR Transitional Act National Vocational Education and Training
Regulator (Transitional Provisions) Act 2011
PGPA Act Public Governance, Performance and
Accountability Act 2013
Privacy Act Privacy Act 1988
Public Service Act Public Service Act 1999
Remuneration Tribunal Act Remuneration Tribunal Act 1973
RTO registered training organisation
VET vocational education and training
VSL Act VET Student Loans Act 2016
WA Regulations Vocational Education and Training (General)
Regulations 2009 (WA)
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NATIONAL VOCATIONAL EDUCATION AND TRAINING
REGULATOR AMENDMENT (GOVERNANCE AND OTHER
MATTERS) BILL 2020
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be the National Vocational Education and
Training Regulator (Governance and Other Matters) Act 2020.
Clause 2 - Commencement
2. The table in subclause 2(1) sets out when the Act's provisions will commence.
3. Sections 1 to 3 and any provisions not elsewhere covered by the table
commence on the day the Act receives Royal Assent.
4. Schedule 1, Parts 1 and 2 commence at a time and day to be fixed by
Proclamation. If the provisions do not commence before 1 July 2021, they
commence on that day. The extended time for proclamation is to ensure time
for stakeholders to be sufficiently consulted on the changes and the enable
time for the structural changes to the National VET Regulator to be organised.
5. Schedule 1, Part 3 commences on the later of:
immediately after the commencement of the provisions covered by table
item 2; and
immediately after the commencement of Schedule 1 to the National
Vocational Education and Training Regulator Amendment Act 2020.
6. If the National Vocational Education and Training Regulator Amendment Act
2020 does not commence, Schedule 1, Part 3 does not commence at all.
7. Schedules 2 and 3 are to commence the day after this Act receives Royal
Assent.
8. A note to this table provides that the table relates only to the provisions of this
Act as originally enacted. It will not be amended to deal with any later
amendments of this Act.
9. Subclause 2(2) provides that any information in column 3 of the table in the Act
is not part of the Act, and information may be inserted in this column, or
information in it may be edited, in any published version of this Act.
11
Clause 3 - Schedules
10. Clause 3 provides that any legislation that is specified in a Schedule is
amended or repealed as set out in the applicable items in the Schedule and
that any other item in a Schedule has effect according to its terms.
12
Schedule 1--Governance
arrangements
Summary
11. The amendments in Schedule 1 of the Bill revise and strengthen the
governance arrangements for the National VET Regulator.
12. The amendments change the National VET Regulator's governance structure,
replacing the existing Chief Commissioner/CEO and two Commissioners with a
single independent statutory office holder. The National VET Regulator will be
appointed by the Governor-General on a full time basis for a period not
exceeding 5 years and:
may be known as the CEO of ASQA;
will be the accountable authority for the listed entity known as the
'Australian Skills Quality Authority' for the purposes of the PGPA Act; and
will be the head of the statutory agency (comprised of the National VET
Regulator and staff engaged under the Public Service Act) for the purposes
of that Act.
13. Further amendments include provisions for acting arrangements, remuneration
and allowances, leave, outside employment, resignation, termination and other
terms and conditions for the National VET Regulator. The amendments also
provide that a person who is an executive officer of a RTO or has held such a
role in the two years prior to appointment will not be eligible for appointment as
the National VET Regulator.
14. The reconstituted National VET Regulator's functions will be very similar to the
functions exercised by it and the CEO. Delegation arrangements for the
National VET Regulator will remain the same so that the National VET
Regulator will be able to delegate the Regulator's functions and powers to staff,
consultants, Commonwealth authorities and a person who holds any office or
appointment under a law of the Commonwealth.
15. The Minister will continue to be able to give directions to the National VET
Regulator, noting that the directions will need to be in relation to the
performance of the Regulator's functions or the exercise of the Regulator's
powers and that they must not be in relation to particular NVR RTOs, or the
accreditation of a particular VET accredited course.
16. For the purposes of the PGPA Act, the listed entity will be known as the
'Australian Skills Quality Authority' which will be comprised of the National VET
Regulator, members of staff of the Regulator, and consultants engaged under
the NVETR Act. The National VET Regulator, staff of the Regulator and
13
consultants engaged under the NVETR Act will all be officials of the listed
entity. Currently under section 156A of the NVETR Act, the Commissioners,
CEO and staff of the Regulator and consultants are 'officials'. Reflecting the
new governance structure, this provision ensures that for the purposes of
finance law, the National VET Regulator is an official. The staff of the National
VET Regulator and consultants will remain as 'officials'.
17. The Bill also establishes the Advisory Council. The Advisory Council will consist
of a Chair and up to nine other members, appointed on a part-time basis for up
to three years. The Minister must consult with the Ministerial Council before
appointing Advisory Council members. Advisory Council members must satisfy
specified eligibility criteria in order to be appointed. The Bill contains provisions
relating to acting arrangements, the determination of remuneration and
allowances, leave, disclosure of interests, resignation, termination and other
terms and conditions for members of the Advisory Council.
18. The Advisory Council will provide the National VET Regulator with access to
expert advice regarding the Regulator's functions. The Advisory Council will not
provide advice to the National VET Regulator in relation to particular NVR
RTOs, particular VET accredited courses or registered providers under the
ESOS Act. The Bill also makes provision for the Minister to give written
directions to the Advisory Council about the performance of its functions.
19. The amendments relating to the Advisory Council will facilitate continuous
improvement of the National VET Regulator's practices and create a
mechanism for meaningful engagement with industry and other stakeholders.
The Advisory Council may provide advice to the National VET Regulator on the
Council's initiative or at the request of the Minister or the Regulator. The
National VET Regulator will be required to have regard to advice from the
Advisory Council in performing the Regulator's functions.
14
Detailed explanation
Part 1 - Main amendments
National Vocational Education and Training Regulator Act 2011
Item 1 - Section 3
20. This item amends section 3 of the NVETR Act to insert the following definitions:
Advisory Council means the National Vocational Education and Training
Regulator Advisory Council established by section 174.
Advisory Council member means a member of the Advisory Council and
includes the Chair.
Chair means the Chair of the Advisory Council.
Item 2 - Section 3
21. This item repeals the definition of 'Chief Commissioner', 'Chief Executive
Officer' and 'Commissioner'. This amendment is linked to the changes in items
28, 29, 40 and 41 of the Bill that relate to the National VET Regulator's
governance arrangements.
Item 3 - Section 3 (paragraph (b) of the definition of Commonwealth authority)
22. This item omits the words '(other than the National VET Regulator)' from the
definition of Commonwealth authority. This exclusion is no longer necessary
as the term relates to disclosures by the National VET Regulator (in section 205
and 206) and the National VET Regulator cannot disclose to itself.
Item 4 - Section 3 (definition of corporate plan)
23. This item amends the definition of 'corporate plan' to be a corporate plan
prepared by the National VET Regulator, instead of the Chief Executive Officer,
under section 35 of the PGPA Act.
Item 5 - Section 3 (paragraph (a) of the definition of member of the staff of the
Regulator)
Item 6 - Section 3 (paragraph (b) of the definition of member of the staff of the
Regulator)
24. These items amend the definition of 'member of the staff of the Regulator' to
mean:
(a) a person referred to in subsection 170(1); or
(b) a person whose services are made available to the National VET
Regulator as mentioned in subsection 171(1).
15
25. This amendment is linked to the changes in items 28, 29, 40 and 41 of the Bill
that relate to the National VET Regulator's governance arrangements and
reconstituting the Regulator.
Item 7 - Section 3 (definition of National VET Regulator)
26. This item amends the definition of National VET Regulator so that the National
VET Regulator means the person appointed under subsection 162(1) to the
position of the National Vocational Education and Training Regulator referred to
in subsection 155(1).
Item 8 - Section 3
27. Item 8 inserts a definition of 'paid work' which means work for financial gain or
reward (whether as an employee, a self-employed person or otherwise). This
definition relates to new section 166 at item 40 of the Bill.
Item 9 - After section 3
28. Item 9 inserts new section 3A - Vacancy in the office of an Advisory Council
member. This section provides that for the purposes of a reference in the
NVETR Act to a vacancy in the office of an Advisory Council member, or the
Acts Interpretation Act to a vacancy in the membership of a body, there are
taken to be nine offices of Advisory Council members in addition to the Chair.
Item 10 - Section 18
Item 11 - Paragraph 27(a) and (b)
Item 12 - Section 28(2)
Item 13 - Section 30
Item 14 - Section 34
Item 15 - Section 40
Item 16 - Subsection 41(3)
Item 17 - Section 45
Item 18 - Section 49
Item 19 - Paragraph 51(2)(a)
Item 20 - Subsection 52(2)
Item 21 - Subsection 57(2)
Item 22 - Paragraph 57(2)(a)
29. The purpose of the amendments in items 10 to 22 and other similar minor
technical amendments in the Bill referencing the National VET Regulator is to
ensure the provisions correctly reference the Regulator, now that the Regulator
will be a statutory officer holder and not a body.
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30. Item 10 makes a minor amendment to section 18 substituting 'its decision' with
the word 'deciding'.
31. Item 11 makes a minor amendment to paragraph 27(a) and (b), substituting 'its
functions' with 'the Regulator's functions'.
32. Item 12 makes a minor amendment to subsection 28(2), substituting 'its
website' with 'the Regulator's website'.
33. Item 13 makes a minor amendment to section 30, substituting 'its decision',
wherever occurring, with 'deciding'.
34. Item 14 makes a minor amendment to section 34, substituting 'its decision' with
'deciding'.
35. Item 15 makes a minor amendment to section 40, substituting 'it may' with 'the
Regulator may'.
36. Item 16 makes a minor amendment to subsection 41(3), substituting 'its
position' with 'the Regulator's position'.
37. Item 17 makes a minor amendment to section 45, substituting 'its decision' with
'deciding'.
38. Item 18 makes a minor amendment to section 49, substituting 'its decision',
wherever occurring, with 'deciding'.
39. Item 19 makes a minor amendment to paragraph 51(2)(a), substituting 'its own
initiative' with 'the Regulator's own initiative'.
40. Item 20 makes a minor amendment to subsection 52(2), substituting 'its own
initiative' with 'the Regulator's own initiative'.
41. Item 21 makes a minor amendment to subsection 57(2), substituting the words
'it considers' with 'the Regulator considers'.
42. Item 22 makes a minor amendment to paragraph 57(2)(a), substituting the
words 'its website' with 'the Regulator's website'.
Item 23 - Paragraph 62(3)(b)
Item 24 - Sections 89 and 90
43. The amendments in items 23 and 24 relate to amendments in item 40 which
abolishes the position of Chief Commissioner.
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44. Item 23 makes a minor amendment to paragraph 62(3)(b), substituting 'Chief
Commissioner' with 'Regulator'.
45. Item 24 makes minor amendments to sections 89 and 90, substituting 'Chief
Commissioner', wherever occurring, with 'National VET Regulator'.
Item 25 - Part 7 (heading)
46. Item 25 repeals the heading and substitutes with 'Part 7 - Administration'.
Item 26 - Division 1 of Part 7 (heading)
47. Item 26 repeals the heading and substitutes with 'Division 1 - National
Vocational Education and Training Regulator'.
Item 27 - Before section 155
48. Item 27 inserts a heading 'Subdivision A - Establishment, functions and powers
of the National VET Regulator' before section 155.
Item 28 - Subsections 155(1) and (2)
49. Subsection 155(1) established the National VET Regulator. Subsection 155(2)
provided that the National VET Regulator may also be known by a name
specified in the regulations. Item 28 repeals subsections 155(1) and (2), and
replaces it with new subsections. New subsection 155(1) provides that 'There is
to be a National Vocational Education and Training Regulator'. New
subsection 155(2) provides that the National VET Regulator may also be known
as the Chief Executive Officer of the Australian Skills Quality Authority. A new
note provides that for the purposes of the finance law (within the meaning of the
PGPA Act), the National VET Regulator is the accountable authority of the
listed entity known as the Australian Skills Quality Authority: see section 173.
50. This change in language reflects that the National VET Regulator is changing
from a body to a statutory office holder.
51. The revised structure ensures that the National VET Regulator remains an
independent listed non-corporate Commonwealth entity.
Item 29 - Sections 156 and 156A
52. Item 29 repeals section 156 reflecting the fact that the National VET Regulator
will no longer consist of a Chief Commissioner and two Commissioners.
Item 29 also repeals section 156A as the description of the application of
finance law in section 156A is out of date in the new governance arrangements
18
for ASQA. New section 173 deals with the application of finance law to the
revised governance arrangements.
Item 30 - Paragraph 157(1)(m)
Item 31 - Paragraph 157(1)(o)
Item 32 - Subsection 157(5)
Item 33 - After subsection 157(5)
Item 34 - Subsection 157(6)
Item 35 - Subsection 157(7)
53. Section 157 of the NVETR Act sets out the functions of the National VET
Regulator. Items 30-32 and 35 make minor technical amendments reflecting
that the Regulator will be a statutory office holder and not a body.
54. Item 30 omits the words 'its counterparts' and substitutes with 'the Regulator's
counterparts' in paragraph 157(1)(m).
55. Item 31 makes minor amendments to paragraph 157(1)(o), omitting the words
'its functions' and substituting with 'the Regulator's functions'.
56. Item 32 makes minor amendments to subsection 157(5) to omit the words 'it
receives' and substitutes with 'the Regulator receives'.
57. Item 33 inserts a new subsection 157(5A) into the NVETR Act. New subsection
157(5A) provides that the National VET Regulator must have regard to any
advice provided by the Advisory Council in performing its functions. New
subsection 157(5A) does not limit subsection 157(5).
58. Item 34 omits 'or (5)' from subsection 157(6) and substitutes with '(5) or (5A)'
so that a failure to comply with the requirements in new subsection 157(5A) will
not affect the validity of the performance of the National VET Regulator's
functions. This amendment is necessary in order to avoid any uncertainty about
the decisions made by the National VET Regulator, where for example, due to
an oversight by the National VET Regulator, advice from the Advisory Council
has not been considered or there is a lack of certainty about the consideration
having occurred. A no-invalidity provision currently exists for a failure by the
National VET Regulator to comply with the requirements in subsections 157(4)
and (5) of the NVETR Act.
59. Item 35 makes minor amendments to subsection 157(7), substituting 'its
functions' with 'the Regulator's functions'.
Item 36 - After section 157
60. Item 36 inserts new section 157A - National VET Regulator to cooperate with
assessments. It provides that the National VET Regulator must cooperate with
19
the Ministerial Council when the Council assesses whether the Regulator
continues to comply with the Standards for VET Regulators.
61. Section 178 of the NVETR Act (which is contained in Part 7, Division 4),
provides that the National VET Regulator must cooperate with the Ministerial
Council when the Council assesses whether the Regulator continues to comply
with the Standards for VET Regulators. Part 7, Division 4 of the NVETR Act is
repealed by item 41. Item 36 inserts section 157A which replicates the contents
of the repealed section 178.
Item 37 - Section 159
62. Item 37 makes a minor amendment to section 159, substituting 'its functions or
the exercise of its powers', with 'the Regulator's functions or the exercise of the
Regulator's powers'.
Item 38 - Subsection 160(1)
63. Item 38 repeals subsection 160(1) and replaces it with a new subsection to
provide that the Minister may, by legislative instrument, give directions to the
National VET Regulator in relation to the performance of the Regulator's
functions or the exercise of the Regulator's powers. A note provides that
section 42 (disallowance) and Part 3 of Chapter 3 (sunsetting) of the Legislation
Act 2003 do not apply to the direction. Item 2 in section 9 (disallowance) and
item 3 in section 11 (sunsetting) of the Legislation (Exemptions and Other
Matters) Regulation 2015 provide that instruments that are a direction by a
Minister to any person or body are an exempted class of instruments for the
purposes of disallowance and sunsetting.
Item 39 - At the end of section 160
64. Item 39 inserts a new subsection 160(4) into the NVETR Act. The effect of this
new subsection is that the requirement that the National VET Regulator must
comply with a direction given by the Minister under subsection 160(1) does not
apply to the extent that the direction relates to the National VET Regulator's
performance of functions, or exercise of powers, under the Public Service Act
and PGPA Act. While it is appropriate for the Minister responsible for VET to
direct the National VET Regulator in relation to performance of powers under
the NVETR Act, it is not appropriate for that Minister to direct the National VET
Regulator in respect of powers under the Public Service Act and PGPA Act.
Item 40 - At the end of Division 1 of Part 7
Subdivision B - Appointment and terms and conditions of the National VET
Regulator
20
65. Item 40 inserts a number of new sections into the NVETR Act under new
Subdivision B - Appointment and terms and conditions of the National VET
Regulator.
66. New section 162 provides for the appointment of the National VET Regulator.
67. New sub-section 162(1) provides that the National VET Regulator is to be
appointed by the Governor-General by written instrument, on a full-time basis
as the appointment is considered a significant appointment. A note refers to
section 33AA of the Acts Interpretation Act which allows for reappointment of
the National VET Regulator. The National VET Regulator will hold office for the
period specified in the instrument of appointment and that the period must not
exceed five years (new subsection 162(2)).
68. A person may only be appointed as the National VET Regulator if the Minister
is satisfied that the person has the appropriate qualifications, knowledge and
experience (new subsection 162(3)). New subsection 162(4) provides that a
person who is, or has been at any time in the two years before an appointment
is made, an executive officer of a RTO, is not eligible for appointment as the
National VET Regulator.
69. New section 163 provides that the Minister may, by written instrument, appoint
a person to act as the National VET Regulator during a vacancy in the office of
the Regulator (whether or not an appointment has previously been made to the
office) or during any period, or during all periods, when the Regulator is absent
from duty or from Australia or is, for any reason, unable to perform the duties of
the office. A person is not eligible to act as the National VET Regulator if they
fail to meet the requirements in new subsections 162(3) and (4) (new
subsection 163(2)).
70. New section 164 sets out provisions relating to remuneration of the National
VET Regulator. New subsection 164(1) provides that the National VET
Regulator is to be paid the remuneration that is determined by the
Remuneration Tribunal and that if there is no determination, the remuneration
that is determined by the Minister. New subsection 164(2) provides that the
National VET Regulator is to be paid the allowances that are prescribed by the
regulations. Subsections 164(1) and (2) have effect subject to the
Remuneration Tribunal Act (new subsection 164(3)).
71. New subsection 165(1) provides that the National VET Regulator has the
recreation leave entitlements that are determined by the Remuneration
Tribunal. The Minister may grant the National VET Regulator leave of absence,
other than recreation leave, on the terms and conditions including as to
remuneration, as determined by the Minister (new subsection 165(2)).
21
72. The National VET Regulator must not engage in paid work outside the duties of
the Regulator's office without the Minister's approval (new section 166). The Bill
includes a new definition of paid work in section 3 of the NVETR Act.
73. The National VET Regulator holds office on the terms and conditions (if any) in
relation to matters not covered by the NVETR Act, that are determined, in
writing, by the Minister (new section 167).
74. New section 168 provides that the National VET Regulator may resign by giving
the Governor-General a written resignation. The resignation takes effect on the
day it is received by the Governor-General or, if a later day is specified in the
resignation, on that later day.
75. New section 169 sets out termination arrangements for the National VET
Regulator. The Governor-General may terminate the appointment of the
Regulator for misbehaviour or if the National VET Regulator is unable to
perform the duties of the Regulator's office because of physical or mental
incapacity (new subsection 169(1)).
76. The Governor-General may also terminate the appointment of the National VET
Regulator if the Regulator becomes bankrupt, applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors, compounds with the
Regulator's creditors or makes an assignment of the Regulator's remuneration
for the benefit of the Regulator's creditors (new paragraph 169(2)(a)).
77. The National VET Regulator's appointment may also be terminated by the
Governor-General if the Regulator is absent, except on leave of absence, for
14 consecutive days or for 28 days in any 12 months period or the Regulator
engages, except with the Minister's approval, in paid work outside the duties of
the Regulator's office; or the Regulator fails, without reasonable excuse, to
comply with section 29 of the PGPA or rules made for the purposes of that
section (new paragraphs 169(2)(b),(c) and (d)).
78. New subsection 169(3) providers that the Minister must terminate the
appointment of the National VET Regulator if the Regulator becomes an
executive officer of an RTO. It is reasonable for the Minister, rather than the
Governor General, to terminate the appointment of the National VET Regulator
in this circumstance. Termination under this subsection is not discretionary and
the circumstance giving rise to the need to terminate the appointment is
determined objectively, that is, the Regulator becomes an executive officer of a
registered training organisation. The approach maintains the Minister's powers
that were previously set out in subsection 170(2) of the NVETR Act to terminate
the appointment of a Commissioner if they became an executive officer of a
RTO.
22
Subdivision C - Staff and consultants
79. Item 40 also includes a new Subdivision C - Staff and consultants. The
Subdivision sets out the arrangements for staff and consultants that will be
made available to assist the National VET Regulator.
80. New section 170 provides for the staff required to assist the National VET
Regulator. New subsection 170(1) provides that the staff required to assist the
National VET Regulator in the performance of the Regulator's functions must
be engaged under the Public Service Act. New subsection 170(2) provides that
the National VET Regulator and staff referred to in subsection (1) constitute a
Statutory Agency and the National VET Regulator is the Head of that Statutory
Agency.
81. New section 171 provides for staff to be made available to the National VET
Regulator. In particular the National VET Regulator may be assisted by officers
and employees of Agencies (within the meaning of the Public Service Act) and
authorities of the Commonwealth, whose services are made available to the
Regulator in connection with the performance of the Regulator's functions or
the exercise of the Regulator's powers, as well as persons whose services are
made available under arrangements made under subsection 171(2) (new
subsection 171(1)).
82. New subsection 171(2) provides that the National VET Regulator may arrange
with the appropriate State or Territory authority to make officers or employees
available to the Regulator to perform services in connection with the
performance of the Regulator's functions or the exercise of the Regulator's
powers. Should there be an arrangement under subsection 171(2), such
arrangement may provide for the Commonwealth to reimburse a State or
Territory with respect to the services of a person or persons to whom the
arrangement relates (new subsection 171(3)). New subsection 171(4) provides
that when performing services for the National VET Regulator under this
section, a person is subject to the directions of the Regulator. The subsection
enables the National VET Regulator to access persons with jurisdictional or
regional expertise when appropriate and to provide directions to that person.
83. New section 172 provides for consultants. In particular, the National VET
Regulator may, on behalf of the Commonwealth, engage consultants to assist
in the performance of the Regulator's functions (new subsection 172(1)).
Consultants are to be engaged on the terms and conditions that the National
VET Regulator determines in writing (new subsection 172(2)). The subsection
will enable the National VET Regulator to engage consultants with particular
skills or areas of expertise to provide advice and support to the organisation
when required.
23
Subdivision D - Application of the finance law
84. Item 40 also inserts Subdivision D - Application of the finance law, into the
NVETR Act.
85. Section 173 provides that for the purposes of the finance law (within the
meaning of the PGPA Act):
the National VET Regulator, members of the staff of the Regulator and
consultants engaged under section 172 is a listed entity;
the listed entity is to be known as the Australian Skills Quality Authority;
the National VET Regulator is the accountable authority of the listed entity;
the National VET Regulator, members of staff of the Regulator and
consultants engaged under section 172 are officials of the listed entity;
the purposes of the listed entity include the functions of the National VET
Regulator referred to in section 157.
86. A note provides that the National VET Regulator may also be known as the
Chief Executive Officer of the Australian Skills Quality Authority: see new
subsection 155(2).
Item 41 - Divisions 2, 3, 4, 5 and 6 of Part 7
87. Item 41 repeals Divisions 2, 3, 4, 5 and 6 of Part 7 of the NVETR Act.
Division 2 - National Vocational Education and Training Regulator Advisory Council
88. Item 41 also inserts a new Division 2 - National Vocational Education and
Training Regulator Advisory Council into the NVETR Act, which is broken into
three subdivisions.
Subdivision A - Establishment and function of the Advisory Council
89. Item 41 inserts new Subdivision A of Division 2 of Part 7 - Establishment and
function of the Advisory Council into the NVETR Act. New section 174 provides
that the Advisory Council is established by this section.
90. New section 175 sets out the function of the Advisory Council. New
subsection 175(1) provides that the function of the Advisory Council is to
provide advice to the National VET Regulator on the Regulator's functions. The
advice provided to the National VET Regulator is to be general in nature. To
that end, new subsection 175(2) provides that the Advisory Council's function
does not include giving advice about, or in relation to:
the registration of a particular person or body as an NVR RTO, or
the accreditation of a particular course as a VET accredited course, or
a particular NVR RTO, or
a person in respect of whom a particular VET accredited course is
accredited; or
24
registration under the ESOS Act; or
a particular registered provider under the ESOS Act.
91. The above restrictions on the functions of the Advisory Council reflect the
purpose of the Advisory Council being to provide broad strategic advice to the
National VET Regulator, and not to act as a regulatory or investigative body.
The section provides clarity in relation to the different functions of the National
VET Regulator and those of the Advisory Council.
92. New subsection 175(3) provides that the Advisory Council may perform its
function on the Advisory Council's own initiative, or at the request of the
National VET Regulator or the Minister.
93. The Minister may give directions to the Advisory Council (new section 176).
New subsection 176(1) provides that the Minister may, by legislative
instrument, give written directions to the Advisory Council about the
performance of the Advisory Council's function. The Advisory Council must
comply with a Ministerial direction (new subsection 176(2). Since the Minister
may only give directions to the Advisory Council about the performance of the
Advisory Council's function, by implication, the Minister may not give directions
to the Advisory Council about, or in relation to, amongst other things:
the registration of a particular person or body as an NVR RTO, or
the accreditation of a particular course as a VET accredited course, or
a particular NVR RTO, or
a person in respect of whom a particular VET accredited course is
accredited.
94. A note provides that section 42 (disallowance) and Part 4 of Chapter 3
(sunsetting) of the Legislation Act 2003 do not apply to the directions. Item 2 in
section 9 (disallowance) and item 3 in section 11 (sunsetting) of the Legislation
(Exemptions and Other Matters) Regulation 2015 provide that instruments that
are a direction by a Minister to any person or body are an exempted class of
instruments for the purposes of disallowance and sunsetting.
95. The Advisory Council will provide the National VET Regulator with access to
expert strategic advice, facilitating continuous improvement of its practice. It will
enhance the National VET Regulator's regulatory practice, and enable
meaningful sector engagement. This will support the National VET Regulator to
continue to build and maintain the confidence of regulated entities and the
broader community.
Subdivision B - Appointment and terms and conditions of the Advisory Council
96. Item 41 also inserts Subdivision B of Division 2 of Part 7 into the NVETR Act.
Subdivision B makes provision for appointments, acting arrangements,
remuneration and allowances, leave, disclosure of interests, vacancies,
25
resignation, and other terms and conditions relating to members of the Advisory
Council.
97. New section 177 provides that membership of the Advisory Council comprises
a Chair and not more than nine members.
98. New section 178 provides for the appointment of members to the Advisory
Council. Each member is to be appointed by the Minister, by written instrument,
on a part-time basis. A note at the end of new subsection 178(1) provides that
an Advisory Council member may be reappointed in accordance with
section 33AA of the Acts Interpretation Act.
99. New subsection 178(2) provides that before appointing an Advisory Council
member, the Minister must consult with the Ministerial Council. The purpose of
consultation is for the Minister to seek advice from the Ministerial Council on
potential appointments. To ensure the ability of the Advisory Council to draw on
diverse sources of expertise, the outcome of the Minister's decision on each
appointment does not need to ensure proportional representation of interest
groups or State and Territory officials. An Advisory Council member will hold
office for the period specified in the instrument of appointment, which period
must not exceed three years (new subsection 178(3)). New subsection
178(4) provides that a person is not eligible for appointment to the Advisory
Council unless the Minister is satisfied that the person has substantial
experience or knowledge in at least one of the following fields:
delivering training;
operating or managing an RTO;
managing work-based placements for VET students or employing persons
with VET qualifications;
regulating industry sectors and developing and implementing best-practice
regulation principles;
advocating on behalf of VET students;
communicating and engaging with industry and other stakeholders;
any other appropriate field of expertise.
100. New section 179 sets out how acting appointments to the Advisory Council will
operate. With respect to the Chair of the Advisory Council, the Minister may, by
written instrument, appoint an Advisory Council member to act as the Chair
during a vacancy in the office of the Chair, or during any period, or during all
periods, when the Chair is absent from duty, absent from Australia, or in
circumstances where for any reason, is otherwise unable to perform the duties
of the office (new subsection 179(1)).
101. In respect of other Advisory Council members, the Minister may, by written
instrument, appoint a person (who is not the Chair) to act as an Advisory
Council member when there is a vacancy in the office of an Advisory Council
member (which is not that of the Chair) (new paragraph 179(2)(a)). The
Minister may do so regardless of whether or not an appointment has previously
26
been made to the office (new paragraph 179(2)(a)). The Minister may also, by
written instrument, appoint a person to act as an Advisory Council member
during any period, or during all periods, when an Advisory Council member
(other than the Chair) is absent from duty, or from Australia, or is for any
reason, unable to perform the duties of the office (new paragraph 179(2)(b)).
102. New subsection 179(3) provides that a person is not eligible for appointment as
an acting Advisory Council member under new subsection 179(2) unless the
person is eligible for appointment as an Advisory Council member. Note 1 at
the end of this provision refers the reader to new subsection 178(4) (eligibility
requirements for appointment as an Advisory Council member). The purpose of
this requirement is to maintain the relevant expertise of the Advisory Council as
a whole during acting or transition periods. Note 2 refers readers to
sections 33AB and 33A of the Acts Interpretation Act for rules that apply to
acting appointments.
103. New section 180 sets out the remuneration provisions of the Advisory Council.
An Advisory Council member is to be paid the remuneration determined by the
Remuneration Tribunal. If no determination is in operation, the Minister will
determine the remuneration to be paid (new subsection 180(1)). New
subsection 180(2) provides that an Advisory Council member is not entitled to
be paid if the member holds an office or appointment, or is otherwise employed,
on a full time basis in the service or employment of either a:
State; or
corporation (a public statutory corporation) which is established for a public
purpose by State law and which is not a tertiary education institution; or
a company limited by guarantee, where the interests and rights of members
in or in relation to the company are beneficially owned by a State; or
a company in which all the stock or shares are beneficially owned by a
State or by a public statutory corporation.
104. In a note to the section, a reference is made to subsection 7(11) of the
Remuneration Tribunal Act, which provides that a person appointed to a public
office on a part-time basis, is not entitled to remuneration if the member holds
an office or appointment or is otherwise employed on a full-time basis by the
Commonwealth or a Territory or certain other public entities.
105. New subsection 180(3) provides that an Advisory Council member is to be paid
the allowances prescribed by the regulations. New subsection 180(4) provides
that section 184 (but not including subsection 184(2)) has effect subject to the
Remuneration Tribunal Act.
106. New section 181 provides for leave of absence for the Chair from the Advisory
Council. New subsection 181(1) provides that the Minister may grant leave of
absence to the Chair on the terms and conditions that the Minister determines.
The Chair will have the discretion to grant leave of absence to any other
Advisory Council member on the terms and conditions that the Chair
determines (new subsection 181(2)).
27
107. New section 182 provides for the disclosure of interests to the Minister. It
requires that before the Minister appoints a person as a member of the
Advisory Council, the person must disclose to the Minister all interests
(pecuniary or otherwise) that the person is aware of having in a matter of a kind
likely to be considered by the Advisory Council. This measure is designed to
maintain the integrity of the appointment process.
108. New section 183 provides for the disclosure of interests to the Advisory
Council. In particular, subsection 183(1) provides that an Advisory Council
member who has an interest (pecuniary or otherwise) in a matter being
considered or to be considered by the Advisory Council is under obligation to
disclose the nature of the interest to a meeting of the Advisory Council.
Subsection 183(2) provides that the disclosure must be made as soon as
possible after the Advisory Council member becomes aware of the relevant
facts. The disclosure is required to be recorded in the minutes of the meeting
(subsection 183(3)). Paragraphs 183(4)(a) and (b) further stipulate that unless
the Advisory Council otherwise determines, the Advisory Council member must
not be present during any deliberation by the Advisory Council on the matter
and must not take part in any decision of the Advisory Council with respect to
the matter.
109. With respect to the determination of the Advisory Council referred to in
subsection 183(4), the Advisory Council member making the disclosure must
not be present during any deliberation of the Advisory Council for the purpose
of making the determination and must not take part in making the determination
(new subsection 183(5)). A determination under subsection (4) must be
recorded in the minutes of the meeting (new subsection 183(6)).
110. New section 184 provides that an Advisory Council member holds office on the
terms and conditions (if any) in relation to matters not covered by this Act that
are determined, in writing, by the Minister.
111. New section 184A sets out the procedure for resignation. New
subsection 184A(1) provides that an Advisory Council member may resign from
their appointment by giving their written resignation to the Minister. That
resignation will take effect on the day it is received by the Minister, or, if a later
day is specified in the resignation, on that later day.
112. New section 184B provides for the termination of appointments. In particular
new subsection 184B(1) provides that the Minister may terminate the
appointment of an Advisory Council member for misbehaviour, or if the
Advisory Council member is unable to perform the duties of office due to
physical and mental incapacity. Furthermore, the Minister may terminate the
appointment of an Advisory Council member if a member becomes bankrupt,
applies to take the benefit of any law for the relief of bankruptcy or insolvent
debtors, compounds with member's creditors or makes an assignment of
member's remuneration for the benefit of member's creditors (new
28
subparagraphs 184(2)(a)(i)-(iv)). The Minister may also terminate the
appointment of an Advisory Council member if they are absent from three
consecutive meetings of the Advisory Council (except in circumstances where
they are on a leave of absence) (new paragraph 184(2)(b)), or where the
member fails, without reasonable excuse, to comply with section 182 or 183
(which deal with disclosure of interests) (new paragraph 184(2)(c)).
Subdivision C - Procedures of the Advisory Council
113. Item 41 also inserts Subdivision C of Division 2 of Part 7 into the NVETR Act.
Subdivision C sets out procedural arrangements for how the Advisory Council
will operate. The Council is to control its own procedures provided that it
complies with those specified in the legislation
114. New section 184C sets out the times and places for meetings of the Advisory
Council. It specifies in subsection 184C(1) that the Chair of the Advisory
Council must ensure that such meetings as are necessary for the efficient
performance of the Advisory Council's functions are held. Subsection 184C(2)
provides that the meetings are to be held at such times and places as the Chair
decides.
115. New section 184D sets out the provisions governing the conduct of meetings.
New subsections 184D(1) and (2) provide that the Chair must preside at all
meetings at which the Chair is present and if the Chair is not present, a person
who is appointed by the Chair must be present and preside. New
subsections 184D(3) and (4) relate to the quorum requirements for meetings of
the Advisory Council. New subsection 184D(3) provides that a quorum is
constituted by half of the Advisory Council members who are holding office.
New subsection 184D(4) provides that if an Advisory Council member is
required by operation of section 183 to not be present during deliberations (i.e.
because they have declared a pecuniary or other interest in a matter being, or
about to be considered by the Advisory Council) and when that Advisory
Council member leaves the meeting there is no longer a quorum present, the
remaining Advisory Council members at the meeting are deemed to constitute
a quorum for the purpose of any deliberation or decision at that meeting with
respect to that matter. New subsection 184(5) concerns the rules of procedure
for the Advisory Council and provides that the Advisory Council may, subject to
this Division, regulate proceedings at its meetings as it considers appropriate. A
note at the end of this subsection provides that section 33B of the Acts
Interpretations Act contains further information about the ways in which the
Advisory Council members may participate in meetings.
116. New section 184E sets out the voting requirements for meetings. New
subsection 184E(1) provides that a question arising at a meeting of the
Advisory Council is to be determined by a majority of the votes of the Advisory
Council members present and voting. New subsection 184E(2) provides that
the person presiding at a meeting of the Advisory Council has a deliberative
vote and, if the votes are equal, they will have a casting vote.
29
117. New section 184F provides that the Advisory Council must keep minutes of its
meetings.
118. New section 184G sets out the requirements that must be met for the Advisory
Council to make decisions without meetings. New subsection 184(1) provides
that the Advisory Council is taken to have made a decision at a meeting if, in
the absence of a meeting, a majority of the Advisory Council members entitled
to vote on the proposed decision indicate agreement with the decision
(paragraph (a)), the agreement is indicated in accordance with the method
determined by the Chair under subsection (2) (paragraph (b)), and all Advisory
Council members were informed of the proposed decision or reasonable efforts
were made to inform all of the Advisory Council members of the proposed
decision (paragraph (c)).
119. New subsection 184(2) provides that subsection 184(1) applies only if the Chair
determines it applies and the Chair has also determined the method by which
the Advisory Council members are to indicate agreement with proposed
decisions.
120. New subsection 184(3) provides that, for the purposes of paragraph 184(1)(a),
an Advisory Council member is not entitled to vote on a proposed decision if
they would otherwise have not been entitled to vote if the matter had been
considered at a meeting of the Advisory Council. New subsection 184(4)
requires the Advisory Council to keep a record of decisions made in
accordance with 184G.
Item 42 - Paragraphs 201(2)(a) and (b)
Item 43 - Subsection 201(4)
Item 44 - Subsection 201(5)
Item 45 - Subsection 201(5)
121. Item 42 amends paragraphs 201(2)(a) and (b) of the NVETR Act which
specifies who from the National VET Regulator may reconsider a decision. The
amendment will remove the reference to the 'Commissioner' and substitute with
a reference to the 'National VET Regulator'. The amendments in this
item 42 relate to amendments in items 29 and 41 which abolish the position of
Commissioner.
122. Item 43 makes a further minor amendment in subsection 201(4) to refer to 'the
Regulator's decision' rather than 'its decision'. Items 44 and 45 make minor
amendments in subsection 201(5) to refer to 'the decision' rather than 'its
decision' at the first occurring instance and to 'the Regulator's reasons for the
decision' and remove reference to 'its reasons for decision'. These changes are
to ensure section 201 correctly references the National VET Regulator, now
that the Regulator will be a statutory office holder and not a body.
30
Item 46 - Subsection 202(1)
Item 47 - Subsection 202(2)
Item 48 - Subsection 202(2)
123. Section 202 of the NVETR Act concerns the deadline for reconsideration of a
decision. Minor consequential amendments are made by items 46, 47 and 48 to
change references to 'its decision' to 'the Regulator's decision' (in
subsections 202(1) and (2)), and to remove the words 'it has not' and substitute
with words 'the Regulator has not' (in subsection 202(2)). These changes to
language are to ensure section 202 correctly references the National VET
Regulator, now that the Regulator will be a statutory office holder and not a
body.
Item 49 - Subparagraphs 204(b)(i) and (ii)
Item 50 - Subparagraph 204(b)(iv)
124. Section 204 of the NVETR Act concerns the unauthorised disclosure of VET
information. Item 49 repeals subparagraphs 204(b)(i) and (ii) which provide that
'a Commissioner' and the 'Chief Executive Officer' are entrusted persons under
subsection 204(b). Rather, item 49 will insert in its place, 'the National VET
Regulator'. These changes to language are to ensure section 204 correctly
references the National VET Regulator, now that the Regulator will be a
statutory office holder and not a body.
125. Item 50 will change a reference in subparagraph 204(b)(iv), from a consultant
engaged under section 184, to one engaged under section 172.
Item 51 - Subsection 214(2)
126. Subsection 214 of the NVETR Act deals with the National VET Regulator's
management of VET student records. Item 51 contains a minor amendment to
subsection 214(2) which provides that if the National VET Regulator considers
it appropriate to do so, the Regulator may provide a VET student record to a
RTO on its own initiative. The words 'its own initiative' will be changed to 'the
Regulator's own initiative' by item 51. These changes to language are to ensure
the provision correctly references the National VET Regulator, now that the
Regulator will be a statutory office holder and not a body.
Item 52 - Subsection 215(1)
Item 53 - Paragraph 215(1)(a)
127. Items 52 and 53 amend section 215 of the NVETR Act which relates to annual
reports. Item 52 amends subsection 215(1) to provide that it is the National
VET Regulator and not the Chief Executive Officer that prepares the annual
report and provides it to the Minister. Item 53 removes the reference to
'National VET' in paragraph 215(a) so that the paragraph refers only to the
'Regulator'.
31
Item 54 - Sections 218, 219 and 219A
128. Item 54 amends sections 218, 219 and 219A to omit references to the 'Chief
Executive Officer' and substitute with references to the 'National VET
Regulator'.
Item 55 - Section 222
129. Item 55 removes reference to the Chief Executive Officer in section 222 of the
NVETR Act which deals with the compliance with plans.
Item 56 - Section 223
130. Item 56 repeals and substitutes section 223 - Delegation by the Minister. New
section 223 provides that the Minister may, by writing, delegate all or any of the
Minister's functions and powers under the NVETR Act to the National VET
Regulator or the Secretary, except for the powers under the following sections:
Section 91 - Minister may nominate a Judge of the Federal Circuit Court to
be an issuing officer for the purposes of this Act;
Section 160 - Minister may, by legislative instrument, give a direction to the
National VET Regulator;
Subsection 162(3) - Minister to be satisfied that a person being appointed
as the National VET Regulator has appropriate qualifications, knowledge or
experience;
Section 163 - Minister may by instrument appoint a person to act as the
National VET Regulator;
Section 169 - Minister must terminate the appointment of the National VET
Regulator if the Regulator becomes an executive officer of a RTO;
Section 176 - Minister may, by legislative instrument, give directions to the
Advisory Council about the performance of the Advisory Council's function;
Section 178 - Appointment of Advisory Council members;
Section 184B - Termination of Advisory Council members.
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Part 2 - Consequential Amendments
Educational Services for Overseas Students Act 2000
Item 61 - Subsection 6A(1) (table item 2, column headed "a person is an
authorised officer of the agency if:", paragraph (a))
Item 62 - Subsection 6A(1) (table item 2, column headed "a person is an
authorised officer of the agency if:", paragraph (b))
131. Section 6A of the ESOS Act sets out the meaning of an authorised officer under
that Act. Items 61 and 62 amend table item 2, which sets out who is an
authorised officer if the ESOS agency for a registered provider is the National
VET Regulator. Specifically, items 61 and 62 will operate to specify that the
authorised officer is 'the National VET Regulator' or 'an authorised officer
(within the meaning of the NVETR Act)'.
Item 63 - Subsection 171A(2)
132. Item 63 repeals and substitutes subsection 171A(2) of the ESOS Act which
relates to sub-delegation by the National VET Regulator. New
subsection 171A(2) will provide that where the Secretary delegates a function
or power under subsection 170(3) of the ESOS Act to the National VET
Regulator, the Regulator may, in writing, sub-delegate that function or power to
a member of the staff of the Regulator (within the meaning of the NVETR Act)
who is either an SES employee, or acting SES employee or holds or performs
the duties of an Executive Level 1 or 2 position or an equivalent position. A note
provides that the expressions SES employee and acting SES employee are
defined in section 2B of the Acts Interpretation Act.
Higher Education Support Act 2003
Item 64 - Paragraphs 39EC(a), 39FB(1)(f) and 39FD(1)(e) of Schedule 1A
133. Item 64 makes consequential amendments to paragraphs 39EC(a), 39FB(1)(f)
and 39FD(1)(e) of Schedule 1A to HESA to remove reference to 'each *NVETR
Commissioner' and substitute with 'the *National VET Regulator'.
Item 65 - Subclauses 39GA(2) and 39GC(2) of Schedule 1A
134. Item 65 makes consequential amendments to subclauses 39GA(2) and
32GC(2) of Schedule 1A to HESA to omit 'A *NVETR Commissioner' and
substitute with reference to 'The *National VET Regulator".
Item 66 - Subclause 1(1) of Schedule 1 (definition of NVETR Commissioner)
135. Item 66 repeals the definition of NVETR Commissioner in subclause 1(1) of
Schedule 1 to HESA.
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National Vocational Education and Training Regulator (Charges)
Act 2012
Item 67 - Paragraph 6B(2)(a)
136. Item 67 makes a consequential amendment to paragraph 6B(2)(a) of the
NVETR (Charges) Act to omit reference to 'it's functions' and substitute with
reference to 'the Regulator's functions.'
VET Student Loans Act 2016
Item 68 - Section 6 (definition of NVETR Commissioner)
137. Item 68 repeals the definition of NVETR Commissioner in the VSL Act.
Item 69 - Paragraphs 82(3)(e) and 83(2)(e)
Item 70 - Subparagraph 85(2)(b)(i)
Item 71 - Subsections 88(2) and 89(2)
138. Items 69, 70, 71 remove the reference to 'each NVETR Commissioner' in
paragraphs 82(3)(e), 83(2)(e), subparagraph 85(2)(b)(i) and subsections 88(2)
and 89(2) of the VSL Act, and substitute with reference to the 'National VET
Regulator'.
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Part 3 - Amendments contingent on the National Vocational
Education and Training Regulator Amendment Act 2020
National Vocational Education and Training Regulator Act 2011
Item 72 - Subsection 47C(2)
Item 73 - Subsection 155(1A)
139. The following amendments amend the NVETR Act following on from
amendments made by the National Education and Training Regulator
Amendment Act 2020.
140. Item 72 amends subsection 47C(2) of the NVETR Act to make specific
reference to 'the Regulator's website' in the context of the National VET
Regulator being required to publish a general direction. Item 73 repeals
subsection 155(1A) which provides that that the National VET Regulator may
also be known as the Australian Skills Quality Authority.
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Schedule 2--Information
sharing
Summary
141. Schedule 2 of the Bill includes amendments to improve information sharing in
relation to information collected by NCVER under the Data Provision
Requirements. These amendments support the operation of the National VET
Data Policy that was endorsed in 2017 by the Ministerial Council that is
available on the Department's website (in February 2020 the policy could be
accessed at https://www.employment.gov.au/national-vet-data-policy-0).
National Vocational Education and Training Regulator Act 2011
Item 1 - Section 3
142. This item inserts a definition of information safeguard rules into section 3 of
the NVETR Act. Information safeguard rules will be defined as having the
meaning given by section 214A (see item 3 of Schedule 2). Information
safeguard rules have been included in the Bill so that the Minister can, as the
need arises, set out additional safeguards, in a legislative instrument, in relation
to the disclosure of the information (which may include personal information).
Item 2 - At the end of Subdivision B of Division 2 of Part 9
143. Item 2 of Schedule 2 inserts new section 210A into the NVETR Act, which
relates to the disclosure of information by NCVER. NCVER is a company
registered under the Corporations Act 2001. NCVER was established in 1981
by Commonwealth, State and Territory Ministers responsible for VET. It is
responsible for collecting, managing, analysing and communicating research
and statistics about the Australian VET sector.This new section will facilitate
data flows from NCVER to support more informed policy development and
funding allocation for VET.
New section 210A
144. New subsection 210A(1) provides that NCVER may disclose information
collected in accordance with the Data Provision Requirements, or any
equivalent requirements in a non-referring State to the Department, another
Commonwealth authority, to a State or Territory authority (other than a
registered training organisation) that deals with, or has responsibility for,
matters relating to VET or a VET regulator for the purposes of that body. By
implication, where NCVER can disclose the information to the bodies listed in
new subsection 210A(1), those bodies are authorised to collect that
information, including where that information is sensitive information within the
36
meaning of the Privacy Act. For example, if NCVER discloses information to the
Department, the Department is authorised to collect that information from
NCVER.
145. New subsection 210A(1) provides that NCVER may disclose information
collected in accordance with the Data Provision Requirements, or any
equivalent requirements in a non-referring State.
146. Data Provision Requirements have been determined by the Minister in a
legislative instrument made pursuant to section 187 of the NVETR Act. Under
the Data Provision Requirements, an RTO is required by law to collect a
student's information and disclose that information to NCVER as part of the
National VET Provider Collection.
147. The reference to 'any equivalent requirements in a non-referring State' is a
reference to the requirements in the non-referring States, which are Victoria
and Western Australia. The Bill does not expressly refer to the name of the
legislation or the relevant provisions in the Victorian or Western Australian laws
(the non-referring States) that contain equivalent requirements to the Data
Provision Requirements since the name or the relevant sections of that
legislation may change.
148. Currently, in Victoria, condition 6 of the AQTF 2010 Essential Conditions and
Standards for Continuing Registration requires RTOs to obtain and submit data
according to requirements and subject to applicable exemptions that are set out
in the National VET Provider Collection Data Requirements Policy. The AQTF
2010 Essential Conditions and Standards for Continuing Registration as at
February 2020 could be accessed at
https://www.vrqa.vic.gov.au/Documents/VETEssecondstandrdscont.pdf.
149. In Western Australia, paragraph 3(2)(a) of the WA Regulations provides that
one of the mandatory conditions that applies to a Western Australian RTO's
registration is that the provider must comply with the registration standards.
Registration standards are defined as 'the Standards for NVR Registered
Training Organisations made under the Commonwealth Act section 185'.
Clause 7.5 of the Standards for NVR Registered Training Organisations
requires that RTOs provide accurate and current information as required by the
Data Provision Requirements as updated from time to time. The
WA Regulations are a legislative instrument that as at February 2020 could be
accessed at
https://www.legislation.wa.gov.au/legislation/statutes.nsf/home.html.
150. New subsection 210A(1) will ensure that NCVER can share the information that
it collects as part of the National VET Provider Collection to the Commonwealth
department responsible for VET as well as other Commonwealth authorities
and State or Territory authorities (other than registered training organisations)
37
that deal with or have responsibility for VET, to enable those bodies to collect a
full set of data integral to performing their purposes.
151. Commonwealth authorities and State and Territory authorities (other than
registered training organisations) that deal with or have responsibility for VET
may use the data collected from NCVER for their purposes that include:
administering VET, including program administration, regulation, monitoring
and evaluation;
facilitating statistics and research relating to education, including surveys
and data linkage;
understanding how the VET market operates, for policy, workforce planning
and consumer information.
152. It is essential that governments and regulators have access to the full set of
information collected by NCVER as part of the National VET Provider
Collection, so that the spectrum of individual circumstances can be considered
in policy, funding and regulatory decision-making. Examples of individual
circumstances include people with particular needs, such as people with
disability and those where English is not a first language, or people from
particular parts of the country. New subsection 210A(1) facilitates these data
flows.
153. Disclosure will be limited to those bodies listed in subsection 210A(1) where the
protection of personal information through sophisticated cyber and data
protections and data management strategies are already in place.
154. At the time an RTO collects a student's information (usually at enrolment),
which includes personal information and sensitive information (such as
disability status), the student is provided with a privacy notice. The privacy
notice will include those bodies specified under subsection 210A(1).
155. New subsection 210A(2) provides that NCVER may, for the purposes of
NCVER, disclose information collected in accordance with the Data Provision
Requirements, or any equivalent requirements in a non-referring State, to a
person engaged by NCVER to conduct research on behalf of NCVER. A person
engaged by NCVER to conduct research on behalf of NCVER includes a
contractor.
156. Where NCVER can disclose information to a person engaged by NCVER to
conduct research on their behalf (by virtue of subsection 210A(2)), by
implication that person will also be authorised to collect that information,
including where that information includes sensitive information within the
meaning of the Privacy Act.
157. New subsection 210A(3) provides that NCVER may disclose information to a
person under subsection 210A(2) only if the person satisfies the requirements
(if any) prescribed by the information safeguard rules made for the purposes of
38
paragraph 210A(3)(a) and NCVER satisfies the requirements (if any)
prescribed by the information safeguard rules for the purposes of paragraph
210(3)(b). The information safeguard rules may include requirements that
NCVER or the person engaged by NCVER must satisfy before the disclosure
can be made. These rules give the Minister the capacity to impose particular
requirements on both parties to further safeguard a person's privacy.
New section 210B
158. Item 2 also inserts new section 210B - Disclosure of information by the
Department etc., into the NVETR Act.
159. New subsection 210B(1) provides that the section applies to information that
has been disclosed by NCVER under paragraph 210A(1)(a), that is, information
that was disclosed to the Department by NCVER, pursuant to new
subsection 210A(1)(a).
160. New subsection 210B(2) provides that the Secretary may disclose the
information referred to in subsection 210B(1), for the purposes of the
Department, to a Commonwealth authority or a person engaged by the
Secretary to carry out an activity on behalf of the Department. For example,
disclosing to the Australian Bureau of Statistics for the Multi Agency Data
Integration Project, or to a contractor to conduct research on a program or
policy initiative on behalf of the Department.
161. New subsection 210B(3) provides that the Secretary may disclose information
to an authority or person under subsection 210B(2) only if the authority or
person satisfies the requirements, if any, prescribed by the information
safeguard rules for the purposes of subsection 210B(2). These rules give the
Minister the capacity to impose particular requirements that further safeguard a
person's privacy.
New section 210C
162. Item 2 also inserts new section 210C which provides that Subdivision B of
Division 2 of Part 9 does not limit the disclosure of information that may be
authorised in other circumstances. The note to section 210C states that the
disclosure of information may be authorised in other circumstances, such as
under the Privacy Act.
Item 3 - At the end of Division 2 of Part 9
163. Item 3 adds a new Subdivision D - Information safeguard rules, at the end of
Division 2 of Part 9. New section 214A provides that the Minister may, by
legislative instrument, make information safeguard rules prescribing matters
required or permitted by the NVETR Act to be prescribed by the information
39
safeguard rules. The information safeguard rules are to be provided to the
Ministerial Council for their agreement.
164. The information safeguard rules have been included in the Bill as an additional
layer of safeguards to protect the disclosure of personal information. For
disclosures under subsection 210A(2), both NCVER and the person to whom
the information may be disclosed may be required to satisfy particular
requirements as set out in the rules. For disclosures under subsection 210B(2),
the Department may be required to consider whether the Commonwealth
authority or person to whom the information may be disclosed satisfies
particular requirements set out in the rules. The information safeguard rules
could, for example, be used to set parameters in relation to information
disclosures to bodies that are not subject to the Privacy Act.
165. The information safeguard rules have been included as subordinate legislation
to give the Minister flexibility to address unforeseen privacy related issues that
may arise as the information sharing measures in the Bill are implemented.
Item 4 - At the end of Division 1 of Part 12
166. Item 4 adds new section 226A into the NVETR Act. This new section provides
that the Secretary may, by writing, delegate all or any of her functions or
powers under the NVETR Act to an SES employee or acting SES employee, in
the Department. The Secretary cannot delegate functions or powers that have
been delegated to the Secretary under section 223 of the NVETR Act. A note
refers to the definition of SES employee and acting SES employee in the Acts
Interpretation Act.
40
Schedule 3--Transitional and
application provisions
167. Schedule 3 of the Bill contains amendments to the NVETR Transitional Act.
These amendments set out the transitional and application arrangements for
the amendments in Schedule 1 and Schedule 2 of the Bill, including some
comprehensive transitional arrangements in relation to things done by, or in
relation to, a Commissioner or the Chief Executive Officer, and things done by
the National VET Regulator before commencement.
National Vocational Education and Training Regulator (Transitional
Provisions) Act 2011
Item 1 - In the appropriate position
168. Item 1 of Schedule 3 amends the NVETR Transitional Act to insert Schedule 5
- Transitional provisions relating to the National Vocational Education and
Training Regulator Amendment (Governance and Other Matters) Act 2020.
169. Clause 1 of new Schedule 5 of the NVETR Transitional Act sets out the
following definitions:
Amending Act means the National Vocational Education and Training
Regulator Amendment (Governance and Other Matters) Act 2020.
Chief Commissioner has the same meaning as in the Principal Act
immediately before the later commencement time.
Chief Executive Officer has the same meaning as in the Principal Act
immediately before the later commencement time.
Commissioner has the same meaning as in the Principal Act immediately
before the later commencement time.
early commencement time means the start of the day on which Schedule
2 to the Amending Act commences.
later commencement time means the time at which Part 1 of Schedule 1
to the Amending Act commences.
National VET Regulator has the same meaning as in the Principal Act.
Principal Act means the National Vocational Education and Training
Regulator Act 2011.
VET Information has the same meaning as in the Principal Act.
170. Clause 2 of new Schedule 5 sets out provisions relating to 'things done by, or in
relation to, a Commissioner or the Chief Executive Officer'. Subclause 2(1)
provides that if a thing was done by, or in relation to, a Commissioner (including
the Chief Commissioner) or the Chief Executive Officer under a law of the
Commonwealth before the later commencement time, then it is taken, at and
after that time, to have been done by, or in relation to, the National VET
Regulator. Subclause 2(2) provides that the Minister may, by legislative
41
instrument, determine that subclause (1) does not apply in relation to a
specified thing done by, or in relation to, a Commissioner (including the Chief
Commissioner) or the Chief Executive Officer. Subclause 2(3) provides that to
avoid doubt, doing a thing includes making an instrument. Further, nothing in
this clause produces the result that the appointment of a person as a
Commissioner (including the Chief Commissioner) before the later
commencement time has effect, at or after that time, as if it were an
appointment of the person as the National VET Regulator (subclause 2(4)).
171. The purpose of clause 2 is to provide that things done by a Commissioner or
CEO before the later commencement date are deemed to be done by the
National VET Regulator, excepting where otherwise determined by the Minister.
This ensures the validity of things done before the later commencement date.
172. Clause 3 of new Schedule 5 sets out the effect of things done by the National
VET Regulator before the commencement of the Amending Act. Specifically, it
provides that a thing done by, or in relation to, the National VET Regulator
under a law of the Commonwealth before the later commencement time is not
affected by the amendments made by Schedule 1 to the Amending Act.
173. The purpose of this clause is to ensure the validity of things done by the
National VET Regulator is not affected by amendments to Schedule 1 of the
Amending Act.
174. Clause 4 of new Schedule 5 provides that a consultant engaged under
section 184 of the NVETR Act immediately before the later commencement
time is, at and after that time, taken to be engaged under section 172 of that
Act. This has the effect of specifying the terms of engagement for consultants
engaged prior to the later commencement date.
175. Clause 5 of new Schedule 5 is an application provision in relation to the
unauthorised disclosure of VET information. Specifically, it provides that despite
the amendment of section 204 of the NVETR Act by Schedule 1 to the
Amending Act, that section, as in force immediately before the later
commencement time, continues to apply at and after that time in relation to a
person who was any of the following at any time before the later
commencement time: a Commissioner, the Chief Executive Officer or a
consultant engaged under section 184 of the NVETR Act.
176. This has the effect of providing that a Commissioner, Chief Executive Officer or
consultant engaged under the Act, or appointed before the later
commencement date, continue to be considered entrusted persons for the
purposes of section 204 of the NVETR Act and are subject to the protections if
their disclosures fall under paragraphs 204(c)(i) or (ii).
177. Clause 6 of new Schedule 5 provides for protections from civil actions. In
particular it provides that despite the amendment of section 233 of the
NVETR Act by Schedule 1 to the Amending Act, that section as in force
immediately before the later commencement time, continues to apply at and
42
after that time in relation to a person who was a Commissioner at any time
before the later commencement time.
178. Clause 7 of new Schedule 5 sets out transitional arrangements for proceedings
that were started by the National VET Regulator under the name, the
'Australian Skills Quality Authority', before the commencement of the changes
in Schedule 1 of the Bill.
179. New clause 7 provides that after the relevant provisions of the Bill commence,
then the National VET Regulator will continue to be the party to the
proceedings, but the proceedings will be in the name of the National Vocational
Education and Training Regulator. This change reflects that the National VET
Regulator will be, after commencement of the Bill, no longer called the
Australian Skills Quality Authority. This clause ensures that legal proceedings
that started before the changes in Schedule 1 of the Bill, continue to be in the
correct name after commencement of the governance amendments in
Schedule 1 of the Bill.
180. If a decision is made that the party to the proceedings should be under another
name, that is, the Chief Executive Officer of the Australian Skills Quality
Authority, subclause 7(2) allows the Minister to determine that the proceedings
are in a different name.
181. Clause 8 of new Schedule 5 provides that the disclosure of information by
NCVER under section 210A (as inserted by Schedule 2 to the Amending Act)
that occurs at, or after the early commencement time, is authorised where that
information was collected by NCVER before that time.
43