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National Vocational Education and Training Regulator Amendment (Strengthening Quality and Integrity in Vocational Education and Training No 1) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 36 (28 February 2024)

National Vocational Education and Training Regulator Amendment (Strengthening Quality and Integrity in Vocational Education and Training No. 1) Bill 2024^[85]

Exemption from disallowance^[86]

1.149 Item 22 of Schedule 1 to the bill seeks to insert proposed sections 231C and 231D into the National Vocational Education and Training Regulator Act 2011 (the Act). Under proposed subsections 231C(1) and (3), the minister may, by legislative instrument, determine that the National VET (vocational education and training) Regulator is not required to do any processing activity, or may determine that the National VET Regulator must not do any processing activity, respectively. Proposed subsection 231C(6) provides that an instrument made under subsection (1) or (3) is a legislative instrument but section 42 of the Legislation Act 2003 does not apply, meaning that these instruments are exempt from disallowance.

1.150 Similarly, proposed subsection 231D(1) provides that the minister may, by legislative instrument, suspend the making of initial applications for registration and proposed subsection 231D(4) provides that an instrument made under subsection (1) is a legislative instrument but section 42 of the Legislation Act 2003 does not apply.

1.151 Disallowance is the primary means by which the Parliament exercises control over the legislative power that it has delegated to the Executive. Exempting an instrument from disallowance therefore has significant implications for parliamentary scrutiny. In June 2021, the Senate acknowledged these implications and resolved that delegated legislation should be subject to disallowance unless exceptional circumstances can be shown which would justify an exemption. In addition, the Senate resolved that any claim that circumstances justify such an exemption will be subject to rigorous scrutiny, with the expectation that the claim will only be justified in rare cases.^[87]

1.152 The Senate’s resolution is consistent with concerns about the inappropriate exemption of delegated legislation from disallowance expressed by this committee in its recent review of the Biosecurity Act 2015,^[88] and by the Senate Standing Committee for the Scrutiny of Delegated Legislation in its inquiry into the exemption of delegated legislation from parliamentary oversight.^[89]

1.153 The committee expects that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum.

1.154 The explanatory memorandum explains:

The reason for this exemption is that subsection 44(1) of the Legislation Act provides that an instrument will not be subject to disallowance where a legislative instrument:

• facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States or Territories; and

• authorises the instrument to be made by the body or for the purposes of the body or scheme.

New section 231F requires the Minister to obtain the agreement of the Ministerial Council in accordance with process set out in section 191 of the Act. This means that, before making a determination under section 231C, the Minister must obtain the agreement of the Ministerial Council, which must consist of resolution of the Council passed in accordance with the procedures determined by the Council.

...

Given the requirements under section 191 of the Act, any potential disallowance of legislative instruments made under section 231C of the Act may discourage State and Territory support for the VET regulatory framework, given that substantial and robust consultation is required to be undertaken with States and Territories. A disallowance might be perceived to be the Commonwealth Parliament unilaterally disallowing an instrument that is part of a multilateral scheme and, on that basis, the better view is that a legislative instrument made under section 231C is exempt from disallowance under subsection 44(1) of the Legislation Act. This is made clear by subsection 231C(6).^[90]

1.155 The explanatory memorandum provides the same justification for instruments made under subsection 231D(1).^[91]

1.156 While the committee acknowledges the consultation requirements included in the bill before an instrument can be made, the committee does not consider the fact that an instrument is made to facilitate the operation of an intergovernmental scheme is reason, in itself, for exempting an instrument from the usual parliamentary disallowance process. Moreover, the committee does not consider the fact that a number of executive governments have reached agreement in relation to a particular matter precludes the need for parliamentary oversight of the laws resulting from such agreement.

1.157 The committee is of the view that the importance of a matter set out in an instrument to the overall operation of an intergovernmental scheme would be appropriately weighed by a house of the Parliament and would inevitably be a subject of debate should a proposal to disallow the instrument be put to that house.

1.158 In light of the above, the committee requests the minister’s advice as to whether the bill could be amended to omit subsections 231C(6) and 231D(4) so that legislative instruments made under subsections 231C(1), 231C(3) and 231D(1) are subject to appropriate parliamentary oversight through the usual disallowance process.

Privacy^[92]

1.159 Section 17A of the Act provides that the National VET Regulator must prepare a report of an audit conducted in relation to an application for registration and, under subsection 17A(3), the report must not include personal information, unless the personal information is the name of the applicant or an NVR registered training organisation. Section 35 of the Act provides that the National VET Regulator may, at any time, conduct a compliance audit of an NVR registered training organisation’s operations, must prepare a report of the compliance audit and, under subsection 35(1C), the report must not include personal information, unless the personal information is the name of the NVR registered training organisation to which the report relates.

1.160 Items 67 and 69 of Schedule 1 to the bill seeks to provide that, for both subsections 17A(3) and 35(1C), the requirement for the report to not include personal information only applies if the report is published.

1.161 The committee considers that where a bill provides for the collection, use or disclosure of personal information, the explanatory materials to the bill should address why it is appropriate to do so and what safeguards are in place to protect the personal information, and whether these are set out in law or policy (including whether the Privacy Act 1988 applies).

1.162 In relation to both subsections, the explanatory memorandum explains:

The purpose of this amendment is to streamline Commonwealth interactions by ensuring personal information can be included in non‑published Regulator audit and compliance audit reports while appropriately protecting the privacy of affected individuals and entities. This will allow for more transparent engagement with regulated entities and lead to improved regulatory outcomes.^[93]

1.163 The committee is unclear as to what kinds of personal information might be collected and included in these reports and what safeguards are in place to ensure the protection of this personal information.

1.164 The committee requests the minister’s advice as to:

• what kinds of personal information are expected to be included in audit and compliance audit reports under  sections 17A  and 35 of the National Vocational Education and Training Regulator Act 2011; and

• what safeguards are in place to protect personal information, including whether the Privacy Act 1988 applies.

^[85] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, National Vocational Education and Training Regulator Amendment (Strengthening Quality and Integrity in Vocational Education and Training No. 1) Bill 2024, Scrutiny Digest 3 of 2024; [2024] AUSStaCSBSD 36.

^[86] Schedule 1, item 22, proposed subsections 231C(6) and 231D(4). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iv).

^[87] Senate resolution 53B. See Journals of the Senate, No. 101, 16 June 2021, pp. 3581–3582.

^[88] See Chapter 4 of Senate Standing Committee for the Scrutiny of Bills, Review of exemption from disallowance provisions in the Biosecurity Act 2015: Scrutiny Digest 7 of 2021 (12 May 2021) pp. 33–44; and Scrutiny Digest 1 of 2022 (4 February 2022) pp. 76‑86.

^[89] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report (December 2020); and Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report (March 2021).

^[90] Explanatory memorandum, p. 39.

^[91] Explanatory memorandum, pp. 40–41.

^[92] Schedule 1, item 67, subsection 17A(3); and Schedule 1, item 69, subsection 35(1C). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[93] Explanatory memorandum, pp. 53–54.