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National Vocational Education and Training Regulator Bill 2010 [2011]

Part 1 Introduction

Division 1 Preliminary

1   Short title

                   This Act may be cited as the National Vocational Education and Training Regulator Act 2010 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 15

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

3.  Parts 2 to 12

At the same time as the provision(s) covered by table item 2.

 

Note:          This table relates only to the provisions of this Act as originally enacted.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.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.



 

Division 2 Definitions

3   Definitions

                   In this Act:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

Australia , when used in a geographical sense, includes the external Territories.

Australian Qualifications Framework has the same meaning as in the Higher Education Support Act 2003 .

authorised officer means a person appointed as an authorised officer under section 89.

Chief Commissioner means the Chief Commissioner appointed in accordance with subsection 162(4).

Chief Executive Officer means the Chief Commissioner: see section 179.

civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.

Commissioner means a person appointed as a Commissioner under subsection 162(1).

committee of management of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association.

Commonwealth authority means:

                     (a)  a Department of the Commonwealth; or

                     (b)  a body (other than the National VET Regulator), whether incorporated or not, established for a public purpose by or under a law of the Commonwealth.

compliance audit means an audit carried out under subsection 35(1).

corresponding State law means a law of a State, the Australian Capital Territory or the Northern Territory declared by the regulations to correspond to particular provisions of this Act or the regulations, including such a law as amended from time to time.

course means a course of vocational education and training.

Data Provision Requirements has the meaning given by section 187.

Education Minister , in relation to a State or Territory, means the relevant Minister of the State or Territory with responsibility for vocational education and training.

enforcement powers has the meaning given by section 68.

enforcement warrant means:

                     (a)  a warrant issued under section 86; or

                     (b)  a warrant signed by a magistrate under section 87.

evidential material means:

                     (a)  in relation to an offence against this Act or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act:

                              (i)  a thing with respect to which the offence has been committed or is suspected, on reasonable grounds, of having been committed; or

                             (ii)  a thing that there are reasonable grounds for suspecting will afford evidence as to the commission of the offence; or

                            (iii)  a thing that there are reasonable grounds for suspecting is intended to be used for the purpose of committing the offence; and

                     (b)  in relation to a contravention of a civil penalty provision:

                              (i)  a thing with respect to which the civil penalty provision has been contravened or is suspected, on reasonable grounds, of having been contravened; or

                             (ii)  a thing that there are reasonable grounds for suspecting will afford evidence as to the contravention of the civil penalty provision; or

                            (iii)  a thing that there are reasonable grounds for suspecting is intended to be used for the purpose of contravening the civil penalty provision.

executive officer , in relation to a registered training organisation, means:

                     (a)  a person, by whatever name called and whether or not a director of the organisation, who is concerned in, or takes part in, the management of the organisation; or

                     (b)  if the organisation is a body corporate:

                              (i)  a person who, at any time during a period for which the organisation is registered, owns 15% or more of the organisation; or

                             (ii)  a person who, at any time during a period for which the organisation is registered, is entitled to receive 15% or more of dividends paid by the organisation; or

                     (c)  an administrator, receiver and manager, or liquidator of the organisation (other than a receiver and manager, or liquidator, appointed by a court); or

                     (d)  if the organisation is a body corporate—the administrator of a deed of company arrangement executed by an organisation; or

                     (e)  if the organisation is a body corporate—a trustee or other person administering a compromise or arrangement made between the organisation and another person or other persons.

Federal Court means the Federal Court of Australia.

Federal Magistrate , other than in section 91, means a Federal Magistrate in relation to whom a consent under subsection 91(1) and a nomination under subsection 91(2) are in force.

Financial Viability Risk Assessment Requirements has the meaning given by section 158.

Fit and Proper Person Requirements has the meaning given by section 186.

former registered training organisation means:

                     (a)  an organisation that was an NVR registered training organisation; or

                     (b)  a training organisation that was listed, at any time before this section commences, on a register (now known as the National Register) as being registered in a referring State or a Territory.

high managerial agent of a registered training organisation means an employee or agent of the organisation with duties of such responsibility that his or her conduct may fairly be assumed to represent the organisation in relation to the business of providing courses.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

lawyer means:

                     (a)  a barrister; or

                     (b)  a solicitor; or

                     (c)  a barrister and solicitor; or

                     (d)  a legal practitioner;

of the High Court or of the Supreme Court of a State or Territory.

magistrate includes a Federal Magistrate of the Federal Magistrates Court.

member of the staff of the Regulator means:

                     (a)  a person referred to in subsection 182(1); or

                     (b)  a person whose services are made available to the National VET Regulator as mentioned in subsection 183(1).

Ministerial Council means the body known as the Ministerial Council for Tertiary Education and Employment on the day on which this definition commences.

monitoring powers has the meaning given by section 67.

monitoring warrant means a warrant issued under section 85.

National Register means the register maintained by the Department, or another person prescribed by the regulations, and referred to in section 216.

National VET Regulator means the body established by section 155.

non-referring State has the meaning given by section 7.

NVR registered training organisation means a training organisation that is registered by the National VET Regulator as a registered training organisation under this Act.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914 .

personal information has the same meaning as in the Privacy Act 1988 .

person assisting an authorised officer has the meaning given by section 69.

premises includes the following:

                     (a)  a structure, building, vehicle, vessel or aircraft;

                     (b)  a place (whether or not enclosed or built on);

                     (c)  a part of a thing referred to in paragraph (a) or (b).

referred VET matters has the meaning given by section 6.

referring State has the meaning given by section 5.

registered provider has the same meaning as in the Education Services for Overseas Students Act 2000 .

registered training organisation means a training organisation listed on the National Register as a registered training organisation.

reviewable State decision has the meaning given by section 197.

Risk Assessment Framework has the meaning given by section 190.

scope of registration , in relation to an NVR registered training organisation, means the things that an organisation is registered to do. It will allow an NVR registered training organisation to:

                     (a)  both:

                              (i)  provide training and assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation; and

                             (ii)  provide assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation; or

                     (b)  provide assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation.

Secretary means the Secretary of the Department.

Standards for NVR Registered Training Organisations has the meaning given by section 185.

Standards for VET Accredited Courses has the meaning given by section 188.

Standards for VET Regulators has the meaning given by section 189.

State or Territory authority means:

                     (a)  a State or Territory; or

                     (b)  a body, whether incorporated or not, established by or under a law of a State or a Territory.

trading corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

Transitional Act means the National Vocational Education and Training Regulator (Transitional Provisions) Act 2010 .

VET means Vocational Education and Training.

VET accredited course means:

                     (a)  if the National VET Regulator has delegated to a body the function of accrediting a course—a course accredited by the body under the delegation; or

                     (b)  in any other case—a course accredited by the National VET Regulator.

VET course means:

                     (a)  the units of competency of a training package that is endorsed by the Ministerial Council; or

                     (b)  the modules of a VET accredited course; or

                     (c)  the modules of a course accredited by a VET Regulator of a non-referring State.

VET information means information that is held by the National VET Regulator and relates to the performance of the Regulator’s functions.

VET qualification means a testamur, relating to a VET course, given to a person confirming that the person has achieved learning outcomes and competencies that satisfy the requirements of a qualification.

VET Quality Framework means the following:

                     (a)  the Standards for NVR Registered Training Organisations;

                     (b)  the Australian Qualifications Framework;

                     (c)  the Fit and Proper Person Requirements;

                     (d)  the Financial Viability Risk Assessment Requirements;

                     (e)  the Data Provision Requirements.

VET Regulator means:

                     (a)  the National VET Regulator; and

                     (b)  a body of a non-referring State that is responsible for the kinds of matters dealt with by this Act.

VET statement of attainment , in relation to units of competency or modules of a VET course, means a statement given to a person confirming that the person has satisfied the requirements of units of competency or modules specified in the statement.

VET student means a student enrolled in all or part of a VET course at a registered training organisation.

VET student records :

                     (a)  in relation to a registered training organisation, means a document, or an object, in any form (including any electronic form) that is, or has been, kept by a person because of its connection with a current or former VET student of the organisation; and

                     (b)  in relation to a former registered training organisation, means a document, or an object, in any form (including any electronic form) that is, or has been, kept by a person because of its connection with a former VET student of the organisation.

warrant means a monitoring warrant or an enforcement warrant.



 

Division 3 Constitutional basis for this Act and the Transitional Act

4   Constitutional basis for this Act and the Transitional Act

Application in a referring State

             (1)  The application of this Act and the Transitional Act in a referring State is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under the Constitution (other than paragraph 51(xxxvii)); and

                     (b)  the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.

Note:          For when this Act applies in a referring State, see subsections 8(1) and (2).

Application in a Territory

             (2)  The application of this Act and the Transitional Act in a Territory is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

                     (b)  the other legislative powers that the Commonwealth Parliament has under the Constitution.

Despite subsection 22(3) of the Acts Interpretation Act 1901 , this Act and the Transitional Act apply in the Territory as a law of the Commonwealth.

Note:          For when this Act applies in a Territory, see subsection 8(3).

Application in a non-referring State

             (3)  The application of this Act and the Transitional Act in a non-referring State is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under paragraph 51(xx) of the Constitution; and

                     (b)  the legislative powers that the Commonwealth Parliament has under paragraph 51(xix) of the Constitution; and

                     (c)  the legislative powers that the Commonwealth Parliament has under paragraph 51(i) of the Constitution; and

                     (d)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

                     (e)  the other legislative powers that the Commonwealth Parliament has under the Constitution (other than paragraph 51(xx), 51(xix) or 51(i) or section 122).

Note:          This Act only applies to certain organisations in a non-referring State, see subsection 8(4).

Application outside Australia

             (4)  The operation of this Act and the Transitional Act outside Australia is based on:

                     (a)  the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

                     (b)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

                     (c)  the other legislative powers that the Commonwealth Parliament has under the Constitution.

Note:          See also section 15.

5   Meaning of referring State

Meaning of referring State

             (1)  A State is a referring State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State:

                     (a)  has referred the matters covered by subsections (3) and (5) to the Commonwealth Parliament; or

                     (b)  has:

                              (i)  adopted the relevant version of this Act and the relevant version of the Transitional Act; and

                             (ii)  referred the matter covered by subsection (5) to the Commonwealth Parliament.

             (2)  A State is a referring State even if the State’s referral law provides that:

                     (a)  the reference to the Commonwealth Parliament of a matter covered by subsection (3) or (5) is to terminate in particular circumstances; or

                     (b)  the adoption of the relevant version of this Act or the relevant version of the Transitional Act is to terminate in particular circumstances; or

                     (c)  the reference to the Commonwealth Parliament of a matter covered by subsection (3) or (5) has effect only:

                              (i)  if and to the extent that the matter is not included in the legislative powers of the Commonwealth Parliament (otherwise than by a reference under section 51(xxxvii) of the Constitution); or

                             (ii)  if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

Reference covering the relevant versions of this Act and the Transitional Act

             (3)  This subsection covers the matters to which the referred provisions relate, to the extent of the making of laws with respect to those matters by including the referred provisions in the relevant version of this Act and the relevant version of the Transitional Act.

             (4)  A State stops being a referring State if:

                     (a)  in the case where the Parliament of the State has referred to the Commonwealth Parliament the matters covered by subsection (3)—that reference terminates; or

                     (b)  in the case where the Parliament of the State has adopted the relevant version of this Act and the relevant version of the Transitional Act—the adoption terminates.

Amendment references

             (5)  This subsection covers the referred VET matters to the extent of the making of laws with respect to those matters by making express amendments of this Act or the Transitional Act.

             (6)  A State stops being a referring State if:

                     (a)  the State’s amendment reference terminates; and

                     (b)  subsection (7) does not apply to the termination.

             (7)  A State does not cease to be a referring State because of the termination of its amendment reference if:

                     (a)  the termination is effected by the Governor of that State fixing a day by Proclamation as the day the reference terminates; and

                     (b)  the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day the Proclamation is published; and

                     (c)  that State’s amendment reference, and the amendment reference of every other State, terminates on the same day.

Definitions

             (8)  In this section:

amendment reference , of a State, means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matter covered by subsection (5).

express amendment of this Act or the Transitional Act means the direct amendment of the text of this Act or the Transitional Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act or the Transitional Act.

referral law , of a State, means the Act of the State that refers the matter covered by subsection (5) to the Commonwealth Parliament.

referred provisions means:

                     (a)  the relevant version of this Act; and

                     (b)  the relevant version of the Transitional Act;

to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

relevant version of the Transitional Act means the Transitional Act as originally enacted.

relevant version of this Act means:

                     (a)  if, at the time the State’s referral law was enacted, this Act had not been enacted—this Act as originally enacted; or

                     (b)  otherwise—this Act as originally enacted, and as later amended by an Act that is enacted before the enactment of the State’s referral law.

State law means:

                     (a)  any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time; or

                     (b)  the general law, being the principles and rules of common law and equity to the extent that they have effect in the State from time to time.

6   Meaning of referred VET matters

             (1)  In this Act, referred VET matters means:

                     (a)  the registration and regulation of vocational education and training organisations; and

                     (b)  the accreditation or other recognition of vocational education and training courses or programs; and

                     (c)  the issue and cancellation of vocational education and training qualifications or statements of attainment; and

                     (d)  the standards to be complied with by a vocational education and training regulator; and

                     (e)  the collection, publication, provision and sharing of information about vocational education and training; and

                      (f)  the investigative powers, sanctions and enforcement in relation to any of the above.

             (2)  However, referred VET matters does not include the matter of making a law that excludes or limits the operation of a law of a referring State or a Territory to the extent that the law of the referring State or Territory makes provision with respect to:

                     (a)  primary or secondary education (including the education of children subject to compulsory school education); or

                     (b)  tertiary education that is recognised as higher education and not vocational education and training; or

                     (c)  the rights and obligations of persons providing or undertaking apprenticeships or traineeships; or

                     (d)  the qualifications or other requirements to undertake or carry out any business, occupation or other work (other than that of a vocational education and training organisation); or

                     (e)  the funding by referring States or Territories of vocational education and training; or

                      (f)  the establishment or management of any agency of the State or Territory that provides vocational education and training.

7   Meaning of non-referring State

             (1)  A State is a non-referring State if the State is not a referring State.

Note:          For the meaning of referring State , see section 5.

             (2)  A State is taken not to be a non-referring State for the period mentioned in subsection (4) if the Minister determines, by legislative instrument, that the State is covered by this subsection.

             (3)  The Minister may make a determination under subsection (2) in relation to a State if:

                     (a)  before the day this section commences, he or she has obtained the written agreement of the relevant Education Minister for the State; and

                     (b)  the written agreement requires, for the purposes of paragraph 51(xxxvii) of the Constitution, the relevant Education Minister for the State to introduce legislation into the Parliament of the State that:

                              (i)  adopts the relevant version of this Act and the relevant version of the Transitional Act; and

                             (ii)  refers the matter covered by subsection 5(5) to the Commonwealth Parliament.

Note:          Section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to a determination (see section 44 of that Act).

             (4)  The period referred to in subsection (2) in relation to a State is the period beginning on the day this section commences and ending on the earlier of:

                     (a)  the day that the legislation passed by the Parliament of the State:

                              (i)  adopting the relevant version of this Act and the relevant version of the Transitional Act; and

                             (ii)  referring the matter covered by subsection 5(5) of this Act to the Commonwealth Parliament;

                            comes into force; and

                     (b)  the last day of the 12 month period beginning on the day this section commences.

8   When application of this Act takes effect

Referring States

             (1)  This Act applies in a referring State covered by paragraph 5(1)(a) on and after the later of the following:

                     (a)  the day that the legislation passed by the Parliament of the State referring the matters covered by subsections 5(3) and (5) to the Commonwealth Parliament receives the Royal Assent;

                     (b)  the day this section commences.

             (2)  This Act applies in a referring State covered by paragraph 5(1)(b) on and after the day that legislation passed by the Parliament of the State:

                     (a)  adopting the relevant version of this Act and the relevant version of the Transitional Act; and

                     (b)  referring the matter covered by subsection 5(5) to the Commonwealth Parliament;

comes into force.

Territories

             (3)  This Act applies in a Territory on and after the day this section commences.

Non-referring States

             (4)  This Act applies in relation to a training organisation that operates in a non-referring State on and after the day this section commences if:

                     (a)  the organisation is a registered provider (other than a secondary school); or

                     (b)  the organisation provides all or part of a VET course in the non-referring State and a referring State or a Territory; or

                     (c)  the organisation provides all or part of a VET course in the non-referring State and offers all or part of a VET course in a referring State or a Territory to be provided in the referring State or Territory.

Note:          Paragraph (a)— registered provider is defined, see section 3.

             (5)  In addition to its effect apart from this subsection, subsection (4) also has the effect it would have if each reference to an organisation were, by express provision, confined to a trading corporation.

9   Immunity from State and Territory laws

Laws of referring States

             (1)  An NVR registered training organisation that operates in a referring State is not subject to a law of the referring State that relates to a referred VET matter (other than a law that applies whether or not a person is a training organisation).

Laws of a Territory

             (2)  An NVR registered training organisation that operates in a Territory is not subject to a law of the Territory that relates to a referred VET matter (other than a law that applies whether or not a person is a training organisation).

Laws of non-referring States

             (3)  To the extent that a registered training organisation is an NVR registered training organisation that operates in a non-referring State, the organisation is not subject to a law of the non-referring State that relates to:

                     (a)  the registration and regulation of vocational education and training organisations (other than secondary schools); or

                     (b)  the accreditation or other recognition of vocational education and training courses or programs; or

                     (c)  the issue and cancellation of vocational education and training qualifications or statements of attainment; or

                     (d)  the collection, publication, provision and sharing of information about vocational education and training; or

                     (e)  the investigative powers, sanctions and enforcement in relation to any of the above;

other than a law that applies whether or not a person is a training organisation.

10   When this Act does not apply—exclusion by a law of a referring State or a Territory

             (1)  This section applies if a law of a referring State, or of a Territory, declares a matter to be an excluded matter for the purposes of this section in relation to:

                     (a)  the whole of this Act; or

                     (b)  a specified provision of this Act; or

                     (c)  this Act, other than a specified provision; or

                     (d)  this Act, otherwise than to a specified extent.

             (2)  This Act, other than this section and Part 2 (Registration), does not apply in relation to the excluded matter to the extent provided by the declaration.

             (3)  Subsection (2) does not apply to a declaration to the extent prescribed by the regulations.

11   Addressing inconsistency between Commonwealth and State and Territory laws

             (1)  This section has effect despite anything else in this Act or the Transitional Act.

             (2)  This section applies to the interaction between a provision (the displacement provision ) of a law of a referring State or a Territory and a provision (the Commonwealth provision ) of this Act or the Transitional Act only if the displacement provision is declared by a law of the State or Territory to be a VET legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision).

             (3)  The Commonwealth provision does not:

                     (a)  prohibit the doing of an act; or

                     (b)  impose a liability (whether civil or criminal) for doing an act;

if the displacement provision specifically permits, authorises or requires the doing of that act.

             (4)  The Commonwealth provision does not operate in or in relation to the State or Territory to the extent necessary to ensure that no inconsistency arises between:

                     (a)  the Commonwealth provision; and

                     (b)  the displacement provision to the extent to which the displacement provision would, apart from this subsection, be inconsistent with the Commonwealth provision.

Note:          The displacement provision is not covered by this subsection if subsection (3) applies to the displacement provision: if that subsection applies there would be no potential inconsistency to be dealt with by this subsection.

             (5)  Subsections (3) and (4) do not apply in relation to the displacement provision to the extent to which the regulations provide that those subsections do not apply in relation to the displacement provision.



 

Division 4 General application of this Act and the Transitional Act

12   Acts bind the Crown

             (1)  This Act and the Transitional Act bind the Crown in each of its capacities.

             (2)  This Act and the Transitional Act do not make the Crown liable to be prosecuted for an offence or to any pecuniary penalty.

13   Acts not to apply so as to exceed Commonwealth power

             (1)  Unless the contrary intention appears, if a provision of this Act or the Transitional Act:

                     (a)  would, apart from this section, have an application (an invalid application ) in relation to:

                              (i)  one or more particular persons, things, matters, places, circumstances or cases; or

                             (ii)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

                            because of which the provision exceeds the Commonwealth’s legislative power; and

                     (b)  also has at least one application (a valid application ) in relation to:

                              (i)  one or more particular persons, things, matters, places, circumstances or cases; or

                             (ii)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

                            that, if it were the provision’s only application, would be within the Commonwealth’s legislative power;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

             (2)  Despite subsection (1), the provision is not to have a particular valid application if:

                     (a)  apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act or the Transitional Act, as the case may be, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

                     (b)  the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

             (3)  Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

             (4)  This section applies to a provision of this Act and the Transitional Act, whether enacted on or after the day this section commences.

14   Extension of Acts to external Territories

                   This Act and the Transitional Act extend to every external Territory.

15   Extra-territorial application

                   Unless the contrary intention appears, this Act and the Transitional Act extend to acts, omissions, matters and things done outside Australia in relation to:

                     (a)  all or part of a VET course; or

                     (b)  a VET qualification.