Commonwealth Numbered Regulations - Explanatory Statements

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NATIONAL VOCATIONAL EDUCATION AND TRAINING REGULATOR AMENDMENT (2020 MEASURES NO. 1) REGULATIONS 2020 (F2020L01001)

EXPLANATORY STATEMENT

National Vocational Education and Training Regulator Regulations 2011

National Vocational Education and Training Regulator Amendment (2020 Measures No.1) Regulations 2020

Authority

Section 235 of the National Vocational Education and Training Regulator Act 2011 (the Act) empowers the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Background

The Act establishes the National VET Regulator (the Regulator) and provides a legislative framework for the regulation of vocational education and training (VET). This legislative framework consists of the Act, the National Vocational Education and Training Regulator (Transitional Provisions) Act 2011, the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011, the National Vocational Education and Training Regulator (Charges) Act 2012 and associated subordinate legislation.

The National Vocational Education and Training Regulator Regulations 2011 (the Principal Regulations) contain provisions:

*         prescribing matters for certificates of registration of NVR registered training organisations (NVR RTOs);

*         prescribing certain conditions of registration of NVR RTOs;

*         clarifying that certain sections of the Act are subject to an infringement notice;

*         setting out the definition of an infringement officer;

*         specifying circumstances related to issuance and withdrawal of infringement notices;

*         clarifying time for payment and effect;

*         allowing refunds (where appropriate);

*         specifying that the Regulator may also be known as the Australian Skills Quality Authority (ASQA).

On 8 June 2017, the Australian Government announced a review of the Act and its subordinate legislation to determine if the Regulator had appropriate legislative capacity to efficiently and effectively regulate the VET sector.

On 22 June 2018, the "All eyes on quality: Review of the National Vocational Education and Training Regulator Act 2011 report" by Professor Valerie Braithwaite (the Braithwaite Review) and the Australian Government response were released. The Braithwaite Review made 23 recommendations to enhance student outcomes by strengthening regulation in the VET sector to improve the quality of training in Australia, and ensure students are both protected and informed.

The National Vocational Education and Training Regulator Amendment Act 2020 (the Amendment Act), was enacted on 26 February 2020 and addressed some of the concerns raised during the Braithwaite Review, including strengthening registration requirements for NVR RTOs, improving data sharing and increasing the transparency of regulatory information and actions by the Regulator.

The amendments to the Principal Regulations, primarily relate to matters arising from the Amendment Act and the implementation of findings from the Braithwaite Review.

Civil penalties and infringement notices

Under the Act, the Regulator is empowered to take a range of regulatory actions against NVR RTOs.

Section 111 of the Act provides that a civil penalty applies if an NVR RTO breaches certain conditions of the organisation's registration. Regulation 5 of the Principal Regulations lists the relevant conditions.

Section 149 of the Act enables the regulations to require payment of an infringement notice, as an alternative to civil penalty proceedings. Regulation 7 of the Principal Regulations lists the civil penalty provisions in the Act subject to infringement notices.

These provisions allow for the exercise of a discretion by the Regulator to use an infringement notice, rather than institute civil penalty proceedings, where the particular breach is considered relatively minor and it is not difficult for an infringement officer to make an assessment of culpability. Issuing an infringement notice, rather than instituting civil penalty proceedings, provides for efficient regulation of the VET sector. It enables the Regulator to manage minor non-compliance without recourse to the courts. The amount payable under an infringement notice is 1/5 of the maximum penalty the court could impose on a natural person or corporate entity under the relevant offence provisions.

Publication of information on the National Register

The National Register is a publicly accessible database that contains information on registered training organisations and nationally recognised training products. The National Register is currently maintained on the website: training.gov.au.

The Braithwaite Review examined the need to remedy gaps in information for VET consumers and found that the National Register could be more informative for the benefit of students, regulators, governments and others with a vested interest in VET. While the National Register is mainly used by VET regulators, the Commonwealth and states and territories, its information is sourced for other Australian Government products including myskills.gov.au, which is used by consumers of VET such as potential students, schools and businesses purchasing training for staff.

Subsection 216(3) of the Act provides that regulations may set out matters the Regulator must ensure are entered on the National Register.

Regulation 15A of the Principal Regulations sets out matters the Regulator must ensure are entered on the National Register.

Purpose and operation

The National Vocational Education and Training Regulator Amendment (2020 Measures No. 1) Regulations 2020 (the Amendment Regulations) amends the Principal Regulations for three main purposes.

First, a technical amendment removes Part 4 of the Principal Regulations as it is now redundant.

Second, the Amendment Regulations will insert additional provisions into the Principal Regulations, prescribing that the following matters are subject to infringement notices:

*         failure of an NVR RTO to comply with a specified direction by the Regulator in relation to cancellation of VET qualifications or VET statements of attainment and notifying the person concerned within a specified period of time; and

*         failure to comply with the Standards for NVR Registered Training Organisations (the Standards) by issuing a VET qualification or VET statement of attainment to an individual who has not been assigned a student identifier under the Student Identifiers Act 2014.

These provisions allow for infringement notices to be issued for offences that are minor and regulatory in nature. Allowing these matters to be dealt with through infringement notices, rather than civil penalty proceedings, gives the Regulator a discretion in their response to a breach of a condition. This discretion will be exercised where it is appropriate that NVR RTOs be given an opportunity to make a lesser payment through an infringement notice rather than facing civil penalty proceedings. These additional matters relate to provisions where liability can be easily ascertained and will improve the efficiency of the Regulator in managing the scheme by ensuring time and resources are not wasted on unnecessary civil penalty proceedings in court.

Third, the Amendment Regulations will insert provisions into the Principal Regulations, prescribing under subsection 216(3) of the Act, additional matters the Regulator must ensure are entered on the National Register. These additional matters cover:

• information for NVR RTOs and their chief executive officers
• the content of previously removed regulatory decisions; and
• the progress of reviewable decisions and their outcomes.

Ensuring these additional matters are entered on the National Register by the Regulator increases the transparency of regulatory decision making, facilitates informed consumer decisions regarding NVR RTOs and course choices, and improves student protection.

Regulation Impact Statement

The Office of Best Practice Regulation advised that a regulatory impact statement is not required (OBPR Reference ID: 24629) as the amendments were unlikely to have more than minor regulatory impact.

Commencement

The preliminary provisions in sections 1 to 4 of the Amendment Regulations commence on the day after the Amendment Regulations are registered on the Federal Register of Legislation.

Part 1 of Schedule 1 to the Amendment Regulations commences the day after the Amendment Regulations are registered on the Federal Register of Legislation. The repeal of Part 4 of the Principal Regulations is a routine matter that does not need an extended commencement.

Part 2 of Schedule 1 to the Amendment Regulations commences on 1 September 2020. The amendments in Part 2 provide for infringement notices in respect of civil penalty provisions and information to be entered on the National Register by the Regulator. Delayed commencement will enable sufficient time to communicate to, and prepare the sector for, these changes.

Part 3 of Schedule 1 to the Amendment Regulations commences on 1 March 2021. These amendments which provide for information to be entered on the National Register

require a later commencement date to provide enough time for the Regulator and the department to implement changes to supporting IT systems.

Consultation

The Regulator and the states and territories have been consulted regarding the making of the Amendment Regulations. No concerns were raised regarding the measures.

Pursuant to clause 5.2 in the Intergovernmental Agreement for Regulatory Reform in Vocational Education and Training entered into between the Commonwealth and states and territories, the Commonwealth "will consult with States and Territories on proposals to make amendments to the National VET Regulator Legislation".

The department undertakes this consultation with the states and territories by consulting with the Skills Senior Officials' Network (SSON). SSON is comprised of senior officials from each state and territory government department responsible for VET.

A table describing the provisions of the Amendment Regulations was circulated to states and territories for noting and comments, through SSON. No concerns were raised about the measures.

In addition to this, a Privacy Impact Assessment (PIA) has been undertaken with respect to the minor amendments contained in the Amendment Regulations relating to the requirement for the National Register to contain the contact details of the chief executive officer of an NVR RTO. While in many instances this information is already publicly available, a PIA has nevertheless been undertaken as is best practice, and the outcomes of that PIA will be considered as part of the ongoing management of the National Register. 

Detailed explanation of Amendment Regulations provisions

Section 1 - Name

This section provides that the title of the regulation is the National Vocational Education and Training Regulator Amendment (2020 Measures No. 1) Regulations 2020 (the Amendment Regulations).

Section 2 - Commencement

This section sets out a table specifying when the various provisions in the Amendment Regulations commence.

The preliminary provisions in sections 1 to 4 of the Amendment Regulations commence on the day after the Amendment Regulations is registered on the Federal Register of Legislation.

Part 1 of Schedule 1 to the Amendment Regulations commences the day after the Amendment Regulations are registered on the Federal Register of Legislation.

Part 2 of Schedule 1 to the Amendment Regulations commences on 1 September 2020.

Part 3 of Schedule 1 to the Amendment Regulations commences on 1 March 2021.

Section 3 - Authority

This section provides that the Amendment Regulations are made under the National Vocational Education and Training Regulator Act 2011 (the Act).

Section 4 - Schedules

This section provides that each instrument that is specified in a Schedule to the Amendment Regulations is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Amendment Regulations has effect according to its terms.

Schedule 1 - Amendments

Part 1 - Amendments commencing day after registration

National Vocational Education and Training Regulator Regulations 2011

Item 1

Item 1 repeals Part 4 of the National Vocational Education and Training Regulator Regulations 2011 (the Principal Regulations).

Part 4 contains regulation 15, which specifies that the National Vocational Education and Training Regulator (the Regulator) may also be known as the Australian Skills Quality Authority (ASQA). Through amendments made to the Act by the National Vocational Education and Training Regulator Amendment Act 2020 (the Amendment Act), subsection 155(1A) of the Act now provides that the Regulator may be referred to as ASQA. As the Act now contains this information, Part 4 of the Principal Regulations is redundant.

Part 2 - Amendments commencing 1 September 2020

National Vocational Education and Training Regulator Regulations 2011

Section 111 of the Act provides that a civil penalty applies if an NVR RTO breaches certain conditions of the organisation's registration. In particular:

*         subsection 111(1) provides that a civil penalty of 240 penalty units applies to a breach of a condition of an organisation's registration if the condition is prescribed by the Principal Regulations for the purposes of subsection 111(1).

*         subsection 111(2) provides that a civil penalty of 120 penalty units applies to a breach of a condition of an organisation's registration if the condition is prescribed by the Principal Regulations for the purposes of subsection 111(2).

Regulation 5 of the Principal Regulations lists the conditions prescribed for the purposes of subsections 111(1) and 111(2) of the Act.

Section 149 of the Act provides for infringement notices in respect of civil penalty provisions to be prescribed in the Principal Regulations. In particular, subsection 149(1) of the Act provides that the Principal Regulations may provide for a person, who is alleged to have contravened a civil penalty provision, to pay the Commonwealth a specified penalty as an alternative to civil penalty proceedings against the person.

Regulation 7 of the Principal Regulations lists the civil penalty provisions in the Act subject to infringement notices.

Item 2

Item 2 inserts new paragraph 7(aa) in regulation 7 of the Principal Regulations. Paragraph 7(aa) references section 61A of the Act, to ensure that it is a civil penalty provision that is also subject to an infringement notice.

Section 61A was recently inserted into the Act by the Amendment Act. It provides that a failure to comply with a direction under subsection 56(2) of the Act (a direction by the Regulator to an NVR RTO to cancel a VET qualification or VET statement of attainment) will incur a civil penalty of 100 penalty units.

Enforcing breaches against the Act through court proceedings can be lengthy and disproportionately time consuming compared to the seriousness of the breach. Including section 61A in the provisions subject to infringement notices will allow the Regulator to quickly address a breach by imposing an infringement notice. Such a response by the Regulator may also act as a deterrent to other NVR RTOs.

Item 3

Item 3 inserts new paragraph 7(daa) in regulation 7 of the Principal Regulations. Paragraph 7(daa) references a particular operation of subsection 111(1) of the Act, to ensure that it is a civil penalty provision that is also subject to an infringement notice.

Paragraph 7(daa) only applies to the extent that a contravention of subsection 111(1) relates to a failure to comply with the Standards for NVR Registered Training Organisations[1] (the Standards) due to the issuing of a VET qualification or a VET statement of attainment to an individual who has not been assigned a student identifier under the Student Identifiers Act 2014.

Where an NVR RTO issues a VET qualification or VET statement of attainment to an individual who has not been assigned a student identifier under the Student Identifiers Act 2014, an infringement notice may be given (noting a breach does not occur if an exemption from requiring a student identifier applies under the Student Identifiers Act 2014). The purpose of this amendment is to widen the enforcement options available to the Regulator in instances where an NVR RTO breaches the Standards, by including this breach in the provisions subject to infringement notices.

Enforcing breaches against the Act through court proceedings can be lengthy and disproportionately time consuming compared to the seriousness of the breach. Including subsection 111(1) of the Act in the provisions subject to infringement notices will allow the Regulator to quickly address a breach by imposing an infringement notice. Such a response by the Regulator may also act as a deterrent to other NVR RTOs. This supports a stronger student identifiers scheme and increased public confidence in VET qualifications and VET statements of attainment. If a student has been issued with a student identifier, an authenticated VET transcript for the student (under the Student Identifiers Act 2014) can be made available to, for example, an employer. This provides a mechanism to check that the study that has led to a VET qualification or VET statement of attainment has been undertaken by the student and therefore that the VET qualification of VET statement of attainment is authentic.

Item 4

Item 4 is a technical amendment that inserts a reference to the Act when referring to subsection 22(3) of the Act in paragraph 7(da) of the Principal Regulations.

Item 5

Item 5 is a technical amendment that inserts the heading "VET accredited courses" before subregulation 15A(2) in the Principal Regulations. This helps distinguish the subregulation relating to VET accredited courses from the other subregulations in regulation 15 of the Principal Regulations that relate to different subject matters.

Item 6

Item 6 is a technical amendment that omits "entered in" and substitutes "entered on" in subregulations 15A(2), (3) and (4). This ensures the language in regulation 15A of the Principal Regulations matches the language in subsection 216(3) of the Act.

Item 7

Item 7 inserts a new heading "NVR registered training organisations" and new subregulation 15A(5) in the Principal Regulations.

Regulation 15A in the Principal Regulations lists additional information that the Regulator is required to enter on the National Register. The purpose of subregulation 15A(5) is to clarify that the following information about NVR RTOs is required to be entered on the National Register by the Regulator:

*         the organisation's ABN;

*         the organisation's web address (if any);

*         details for contacting the organisation's chief executive officer (however described);

*         details for contacting the organisation in relation to its registration with the Regulator; and for public enquiries.

While this information may include personal information, particularly with regards to the chief executive officer contact details, it meets minimum information requirements to meet the policy objectives of inclusion on the National Register. Providing this information ensures that VET regulators, the Commonwealth and state and territory governments that fund NVR RTOs have up-to-date contact details for the purposes of effective regulation, program administration, interactions with NVR RTOs and the protection of consumers.

The Regulator meets its obligations under Australian Privacy Principle (APP) 5 of the Privacy Act 1988, by advising in its privacy policy that, if an organisation is granted registration, the names and contact details of the high managerial agents and main contacts of the organisation may be published on one or more national registers. This sets the expectations on the handling of personal information at the initial stage of seeking registration to be approved as an NVR RTO.

In addition to this, a Privacy Impact Assessment (PIA) has been undertaken with respect to the minor amendments contained in the Amendment Regulations relating to the requirement for the National Register to contain the contact details of the chief executive officer of an NVR RTO. While in many instances this information is already publicly available, a PIA has nevertheless been undertaken as is best practice, and the outcomes of that PIA will be considered as part of the ongoing management of the National Register. 

Other information, such as ABN, web addresses and contact details for public enquiries, is also essential to ensure that VET regulators, the Commonwealth and state and territory governments that fund NVR RTOs and consumers (industry bodies, individuals and businesses that purchase training) have up-to-date contact details for the purposes of effective regulation, program administration, interactions with NVR RTOs, and the protection of consumers.

Item 7 also inserts a new heading "Regulatory decisions" and new subregulation 15A(6) in the Principal Regulations.

Subregulation 15A(6) supports the Regulator to re-enter information on the National Register that may be removed regarding certain types of regulatory decisions against an NVR RTO (namely imposition of a condition on registration, suspension of scope of registration, cancellation of registration, or imposition of a sanction).

Ensuring this information remains on the National Register improves the transparency of regulatory activities, and ensures that the National Register is complete and informative to assist other VET regulators, the Commonwealth and state and territory governments in making informed decisions to protect student interests and the integrity of the VET sector.

The purpose of subregulation 15A(6) is to ensure that the National Register provides complete historical records to facilitate decision making by VET regulators, the Commonwealth and state and territory governments. It should be noted that non-current information will be displayed behind a history tab for each NVR RTO, so that when viewing the National Register, current decisions in effect have prominence.

Information covered by subregulation 15A(6) does not include material removed from the National Register because it was in error (the Regulator has the ability to remove such information from the National Register under subsection 216(2) of the Act).

Item 8

Item 8 inserts regulation 18 in the Principal Regulations, which is an application provision relating to subregulation 15A(6). Regulation 18 ensures that paragraphs 15A(6)(a) and (b) extend to information that may have been removed from the National Register prior to commencement of the Amendment Regulations, to further ensure that the National Register provides a complete historical record. Paragraphs 15A(6)(c) and (d) applies in relation to information removed from the National Register on or after the commencement of those paragraphs.

Part 3 - Amendments commencing 1 March 2021

National Vocational Education and Training Regulator Regulations 2011

Item 9

Item 9 amends regulation 3 in the Principal Regulations by inserting definitions of:

*         stay decision by reference to subregulation 15A(12) of the Principal Regulations

*         training product by reference to subregulation 15A(9) of the Principal Regulations.

Item 10

Item 10 inserts a new heading "Transition of training products" and new subregulations 15A(7), (8) and (9) in the Principal Regulations.

Regulation 15A in the Principal Regulations lists additional information that the Regulator is required to enter on the National Register.

The Standards provide general requirements for the transition of training products by NVR RTOs once those training products are no longer current and are being phased-out, within a particular period, unless the Regulator approves a different period.

Subregulation 15A(7) ensures that, where the Regulator has approved a different period, certain details must be entered on the National Register for transparency purposes and to inform stakeholders.

Subregulation 15A(8) sets out the details to be entered on the National Register, being:

*         if the training product is replaced by another training product--the replacement training product;

*         the start and end date of the period approved by the Regulator;

*         the Regulator's reasons for giving the approval.

Subregulation 15A(9) defines training product by reference to its meaning in the Standards, to ensure consistency with the Standards.

Subregulation 15A(7), (8) and (9) help ensure that information is entered on the National Register, which may not have previously been made publicly available, to provide VET regulators, the Commonwealth and state and territory governments that fund NVR RTOs, and consumers (who access the information via other Australian Government products that have sourced their information from the National Register) with up-to-date information on the transition of training products.

Item 10 also inserts a new heading "Reconsideration or review of reviewable decisions" and new subregulations 15A(10), (11) and (12) in the Principal Regulations.

Subregulation 15A(10) ensures that where an application is made to the Regulator or the Administrative Appeals Tribunal (AAT) for reconsideration/review of certain reviewable decisions, or under the Administrative Decision (Judicial Review) Act 1977 (AD(JR) Act) for an order of review in respect of certain reviewable decisions, that the Regulator must enter certain information on the National Register.

This information is set out in subregulation 15A(11) and includes information about the application and where certain events relating to that application occur, information about those events. These events include where the reviewable decision has been affirmed, varied, revoked, quashed or set-aside (in whole or in part), an order has been under subsection 16(1) of the AD(JR) Act, any stay decisions have been made in relation to the reviewable decision or an appeal under subsection 44(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) has been instituted.

The reviewable decisions covered by subregulations 15A(10), (11) and (12) are:

*         a decision to impose a condition on an NVR RTO's registration;

*         a decision to vary a condition of an NVR RTO's registration;

*         a decision to give a written direction to an NVR RTO requiring the organisation to notify its VET students, in writing, of a matter set out in the direction;

*         a decision to shorten the period of an NVR RTO's registration;

*         a decision to amend an NVR RTO's scope of registration;

*         a decision to suspend all or part of an NVR RTO's scope of registration;

*         a decision to cancel an NVR RTO's registration;

*         a decision to reject an application for renewal of registration as an NVR RTO.

The main purpose of these amendments is to enable the more timely publication of information relating to reviewable decisions, while maintaining accuracy by detailing the stage of any reconsideration or review.

These amendments will further enhance the transparency of review processes, by entering on the National Register up-to-date information about a decision as it passes through the stages of reconsideration or review.

Ensuring that this information is entered on the National Register and is publicly available, increases the transparency of regulatory responses with respect to NVR RTOs, supports a high quality VET sector, and ensures the National Register is up-to-date, complete and informative. This further enables better program administration by governments and better protection of students by VET regulators, the Commonwealth and state and territory governments that fund NVR RTOs. The improved transparency will enhance the accessibility of VET information, leading to students being able to make informed decisions about their education.

Subregulation 15A(12) provides a definition of stay decision, for the purposes of subregulation 15A(11), to be a determination under subsection 200(6) of the Act, an order under subsection 41(2) of the AAT Act or an order made by a court that has the effect of staying or otherwise affecting the operation or implementation of a reviewable decision pending the outcome of a reconsideration or review of the reviewable decision.

Item 11 is a consequential amendment arising from item 12.

Item 12 inserts subregulations 18(2) to 18(4) in the Principal Regulations, and is an application provision providing that:

*         subregulation 15A(7) applies in relation to the Regulator approving a different period for the transition of training products, if that approval is given on or after the commencement of subregulation 15A(7), or before that commencement but only if the different period has not ended as at commencement;

*         subregulation 15A(10) applies in relation to an application made on or after the commencement of subregulation 15A(10), or before that commencement but only if the application has not been finally determined before that commencement;

*         there is a definition of finally determined for the purposes of the application provision.