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National Vocational Education and Training Regulator Amendment Bill 2019 [2020] AUSStaCSBSD 10 (5 February 2020)

National Vocational Education and Training Regulator Amendment Bill 2019

Significant matters in delegated legislation ^[42]

1.60 Currently section 17 of the National Vocational Education and Training Regulator Act 2011 provides that when considering an application for registration or renewal of registration of a registered training organisation, the National VET Regulator may conduct an audit of any matter relating to the application. Proposed  section 17A  provides that where an audit is conducted, the National VET Regulator must prepare an audit report. Proposed subsections 35(1A) to (1D) similarly provide that the National VET Regulator must prepare a report of a compliance audit. The audit reports must be in a form approved by the minister and comply with the audit report rules. The National VET Regulator must also comply with the requirements of the audit report rules in relation to the publication of the reports. Proposed section 231B provides that the minister may make the audit report rules, which will be a legislative instrument.

1.61 The committee's view is that significant matters, such as the content and publication requirements for audit reports, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum provides no explanation as to why these matters are left to delegated legislation. It is unclear to the committee why at least high level guidance cannot be included in the primary legislation. This could include publication requirements, the timeframe in which an audit report must be prepared after an audit is commenced, and whether certain information is able to be redacted or omitted from the report.

1.62 In addition, the explanatory memorandum states that this amendment adds an 'additional layer of transparency to the National VET Regulator's audit processes'.^[43] While the committee welcomes this additional transparency, the committee notes that allowing the content and publication requirements to be determined in delegated legislation means that the effectiveness of the reporting process as a transparency measure is largely dependent on the requirements prescribed by the minister. The committee is concerned that this could significantly limit the transparency of the audit process. 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.

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

• why it is considered necessary and appropriate to leave significant matters, such as the content and publication requirements for audit reports, to delegated legislation; and

• the appropriateness of amending the bill to include at least high-level guidance regarding the content and publication of audit reports on the face of the primary legislation.

Reversal of the evidential burden of proof^[44]

1.64 Currently, subsections 116(1) and (2) of the National Vocational Education and Training Regulator Act 2011 provides that it is an offence for a person to provide all or part of a VET course in a referring State or Territory if they are not a registered training organisation or, if registered, to offer to provide a VET course in a non-referring State. Proposed subsections 116(1A) and 116(3) provide exceptions (offence-specific defences) to these offences if the person does so in accordance with a written agreement between the person and a registered training organisation. The offences carry a maximum penalty of 300 penalty units (currently $63,000).

1.65 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.^[45]

1.66 The committee notes that the Guide to Framing Commonwealth Offences provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[46]

1.67 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The reversals of the evidential burden of proof in proposed subsections 116(1A) and 116(3) have not been addressed in the explanatory materials.

1.68 As the explanatory materials do not address this issue, the committee requests the minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[47]

Exemption from disallowance^[48]

1.69 Currently subsection 160(1) of the National Vocational Education and Training Regulator Act 2011 provides that the minister may, by legislative instrument, give a direction to the National VET Regulator 'if the Minister considers that the direction is necessary to protect the integrity of the VET sector'. A note to existing subsection 160(1) confirms that section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to these ministerial directions.

1.70 Item 49 of Schedule 1 to the bill seeks to amend the power to issue a ministerial direction under subsection 160(1) so that the minister may give a direction to the National VET Regulator 'in relation to the performance of its functions and the exercise of its powers'. It therefore appears that this provision expands the scope of non-disallowable ministerial directions that may be given to the National VET Regulator.

1.71 The committee's consistent expectation is that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum. The fact that a certain matter has previously been within executive control or continues current arrangements does not, of itself, provide an adequate justification.

1.72 As the explanatory materials do not address this issue, the committee requests the minister's advice as to:

• why it is considered necessary and appropriate to continue to exempt ministerial directions made under subsection 160(1) from disallowance in circumstances where it appears the scope of directions that may be given to the National VET Regulator is being expanded; and

• the appropriateness of amending the bill to provide that the directions be subject to disallowance to ensure appropriate parliamentary oversight.

[42] Schedule 1, items 3, 22 and 84, proposed section 17A, proposed subsections 35(1A)–(1D) and proposed section 231B. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[43] Explanatory memorandum, pp. 18 and 24.

[44] Schedule 1, items 37 and 38, proposed subsections 116(1A) and 116(3). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[45] Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

[46] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[47] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50-52.

[48] Schedule 1, item 49, subsection 160(1). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).