National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Bill 2020 [2020] AUSStaCSBSD 36 (26 February 2020)

• National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Bill 2020
• No invalidity clause 20
• Significant matters in delegated legislation
• Privacy22

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National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Bill 2020

Purpose	This bill seeks to amend the National Vocational Education and Training Regulator Act 2011 to strengthen the governance arrangements in relation to the National VET Regulator, support consistent and effective regulation, and enhance stakeholder engagement in Australia's VET sector
Portfolio	Education, Skills and Employment
Introduced	House of Representatives on 13 February 2020

No invalidity clause ^[20]

1.44 Item 33 of Schedule 1 to the bill seeks to insert proposed subsection 157(5A) into the National Vocational Education and Training Regulator Act 2011 to provide that, in performing the National VET Regulator's functions, the Regulator must have regard to any advice provided by the Advisory Council. Item 34 seeks to amend existing subsection 157(6) so that a failure to comply with the requirements in proposed subsection 157(5A) will not affect the validity of the performance of the Regulator's functions.

1.45 A legislative provision that indicates that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision, may be described as a 'no-invalidity' clause. There are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. Consequently, the committee expects a sound justification for the inclusion of a no-invalidity clause to be provided in the explanatory memorandum.

1.46 The explanatory memorandum in this instance states:

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.^[21]

1.47 While noting this justification, the committee has generally not accepted a desire for administrative certainty, on its own, to be a sufficient justification for the inclusion of no-invalidity clauses.

1.48 The committee therefore requests the minister's more detailed advice as to the rationale for expanding the existing no-invalidity clause in subsection 157(6) so that failure of the National VET Regulator to comply with the requirements in proposed subsection 157(5A) will not affect the validity of the performance of the Regulator's functions.

Significant matters in delegated legislation
Privacy^[22]

1.49 Item 2 of Schedule 2 to the bill seeks to insert proposed section 210A into the National Vocational Education and Training Regulator Act 2011, which would allow the National Centre for Vocational Education Research (NCVER) to disclose information collected in accordance with the Data Provision Requirements to the department, another Commonwealth Authority, a relevant State or Territory authority, or a VET Regulator. A disclosure may not occur unless both parties satisfy the requirements (if any) prescribed by the information safeguard rules. Proposed section 214A provides that the minister may, by legislative instrument, make information safeguard rules. The explanatory memorandum states that the information safeguard rules will be 'an additional layer of safeguards to protect the disclosure of personal information'.^[23] Additionally, proposed section 210B provides that the Secretary of the department may further disclose information that has been disclosed by the NCVER to a Commonwealth authority or a person engaged by the Secretary to carry out an activity on behalf of the department.

1.50 The committee's view is that significant matters, such as the safeguards for the disclosure of information, should be in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum states:

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.^[24]

1.51 While noting this explanation, the committee has generally not accepted a desire for administrative flexibility as a sufficient justification for leaving significant matters to delegated legislation. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. As the detail of delegated legislation is generally not publicly available when Parliament is considering a bill, this considerably limits the ability of the Parliament to have appropriate oversight over whether the appropriate safeguards for the protection of personal information will exist.

1.52 In addition, the committee notes that a person to whom information may be disclosed will not need to satisfy any additional requirements if the minister does not make the information safeguard rules under proposed section 214A. It is unclear to the committee why the minister is not required to make information safeguard rules to ensure that there are appropriate safeguards to protect the disclosure of personal information.

1.53 In light of the above, the committee requests the minister's advice as to:

• why it is considered necessary and appropriate to leave the safeguards for the disclosure of information to delegated legislation; and

• whether the bill can be amended to:

- include at least high-level guidance regarding the relevant safeguards on the face of the primary legislation; or

- at a minimum, to provide that the minister must, rather than may, make information safeguard rules under proposed section 214A (and to remove references to '(if any)' in proposed paragraphs 210A(3)(a) and (b) and subsection 210B(3)).

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[20] Schedule 1, items 33 and 34, proposed subsections 157(5A) and 157(6). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[21] Explanatory memorandum, p. 19.

[22] Schedule 2, items 2 and 3, proposed sections 210A, 210B and 214A. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i), (iv) and (v).

[23] Explanatory memorandum, p. 40.

[24] Explanatory memorandum, p. 40.