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National Vocational Education and Training Regulator Bill 2010 [2011]

Part 4 National VET Regulator’s power to issue and cancel VET qualifications etc.

Division 1 Issue of VET qualifications and VET statements of attainment

55   National VET Regulator may issue VET qualifications and VET statements of attainment

             (1)  The National VET Regulator may issue a VET qualification to a person who is a current or former VET student if the Regulator is satisfied, on reasonable grounds, that the person has successfully completed the requirements of the qualification.

             (2)  The National VET Regulator may issue a VET statement of attainment to a person in relation to units of competency or modules of a VET course if the Regulator is satisfied, on reasonable grounds, that the person has successfully completed the requirements of the units of competency or modules of the VET course.

             (3)  The National VET Regulator may only issue a VET qualification or VET statement of attainment in relation to an NVR registered training organisation in exceptional circumstances.

             (4)  The National VET Regulator may issue a VET qualification or VET statement of attainment in relation to a former registered training organisation at any time.

             (5)  To avoid doubt, subsection (3) may apply in relation to a time when an organisation was not an NVR registered training organisation.



 

Division 2 Cancellation of VET qualifications and VET statements of attainment

Subdivision A Cancellation

56   National VET Regulator may cancel VET qualifications and VET statements of attainment

             (1)  The National VET Regulator may cancel a VET qualification or VET statement of attainment issued to a person by an NVR registered training organisation or former registered training organisation if the Regulator is satisfied on reasonable grounds that:

                     (a)  the organisation did not provide, or arrange for another person to provide, all or part of the assessment necessary for the person to achieve the learning outcomes or competencies required for:

                              (i)  the qualification; or

                             (ii)  the units of competency or modules specified in the statement; or

                     (b)  the qualification or statement was issued by the organisation:

                              (i)  in error; or

                             (ii)  because of a document or representation that was false or misleading, or was obtained or made in any other improper way; or

                     (c)  it was outside the organisation’s scope of registration to issue the qualification or statement to the person; or

                     (d)  it is appropriate, in all the circumstances, because of action the Regulator has taken, or is taking, in relation to:

                              (i)  the VET course, or part of the VET course, to which the qualification relates; or

                             (ii)  the organisation, in respect of the VET course, or part of the VET course, to which the qualification relates; or

                            (iii)  part of the VET course to which the statement relates; or

                            (iv)  the organisation, in respect of part of the VET course to which the statement relates.

             (2)  However, the National VET Regulator may only take action under subsection (1) in relation to an NVR registered training organisation if:

                     (a)  the Regulator gives the organisation a written direction requiring the organisation to:

                              (i)  cancel the VET qualification or VET statement of attainment; and

                             (ii)  notify the person concerned, in writing, of the cancellation;

                            within a period specified in the direction; and

                     (b)  the organisation fails to comply with the direction within the period specified in the direction.

             (3)  To avoid doubt, if an NVR registered training organisation has been given a written direction under paragraph (2)(a), the organisation may cancel the relevant VET qualification or VET statement of attainment even if the organisation’s scope of registration no longer allows the organisation to issue the qualification or statement.

             (4)  The National VET Regulator may take action under subsection (1) in relation to a former registered training organisation at any time.

57   National VET Regulator to notify person concerned of proposed cancellation

             (1)  Before the National VET Regulator cancels a person’s VET qualification or VET statement of attainment, the Regulator must give the person a written notice:

                     (a)  stating that the Regulator intends to cancel the person’s qualification or statement and the reasons for the proposed cancellation; and

                     (b)  inviting the person to give the Regulator a written response to the notice:

                              (i)  if the Regulator considers that the circumstances require urgent action—within a period specified in the notice, which must be at least 24 hours; or

                             (ii)  in any other case—within a period specified in the notice, which must be at least 14 days.

             (2)  If the National VET Regulator is unable to give notice to a person personally, the Regulator may give a notice mentioned in subparagraph (1)(b)(ii) in any other way it considers appropriate, including by:

                     (a)  publishing the notice on its website; or

                     (b)  publishing the notice in:

                              (i)  a national daily newspaper that circulates throughout Australia; and

                             (ii)  a regional daily newspaper of the State or Territory in which the person concerned is believed to reside.

Note:          See also section 28A of the Acts Interpretation Act 1901 (which deals with service of documents).

             (3)  To avoid doubt, the National VET Regulator may not give a notice mentioned in subparagraph (1)(b)(i) in a way mentioned in subsection (2).

58   National VET Regulator’s consideration of response

             (1)  After considering any response received within a period specified in a notice, if the National VET Regulator still considers that the VET qualification or VET statement of attainment should be cancelled, the Regulator must cancel the qualification or statement.

             (2)  If the National VET Regulator cancels a VET qualification or VET statement of attainment, the Regulator must:

                     (a)  give the person concerned written notice of the decision; and

                     (b)  require the person concerned to return the qualification or statement to the Regulator:

                              (i)  in the case of a notice mentioned in subparagraph 57(1)(b)(i)—within 7 days after the date of that notice; or

                             (ii)  in the case of a notice mentioned in subparagraph 57(1)(b)(ii)—within 30 days after the date of that notice or within 30 days after the date the notice is published, as the case requires.

59   When cancellation takes effect

             (1)  Subject to subsection (2), the cancellation of a person’s VET qualification or VET statement of attainment takes effect:

                     (a)  in the case of a notice mentioned in subparagraph 57(1)(b)(i)—7 days after the date of the notice; and

                     (b)  in the case of a notice mentioned in subparagraph 57(1)(b)(ii)—30 days after the date of the notice or 30 days after the date the notice is published, as the case requires.

             (2)  If:

                     (a)  a person has applied to the Administrative Appeals Tribunal for review of the National VET Regulator’s decision to cancel the person’s VET qualification or VET statement of attainment within the relevant 30 day period, as mentioned in subparagraph 58(2)(b)(ii); and

                     (b)  the person notifies the Regulator, in writing, of that fact within the relevant 30 day period; and

                     (c)  the decision of the Tribunal affirms the National VET Regulator’s cancellation decision;

cancellation of the qualification or statement takes effect when the appeal is finally determined or otherwise disposed of.

Subdivision B Civil penalties

60   Civil penalty—failure to return VET qualification or VET statement of attainment

             (1)  A person contravenes this subsection if:

                     (a)  the person is given a notice as mentioned in subparagraph 57(1)(b)(i); and

                     (b)  the person fails to return his or her VET qualification or VET statement of attainment to the National VET Regulator within 7 days after the date of the notice mentioned in that subparagraph.

Civil penalty:          100 penalty units.

             (2)  A person contravenes this subsection if:

                     (a)  the person is given a notice as mentioned in subparagraph 57(1)(b)(ii) (other than in a way mentioned in subsection 57(2)); and

                     (b)  the person fails to return his or her VET qualification or VET statement of attainment to the National VET Regulator within 30 days after the date of the notice.

Civil penalty:          100 penalty units.

             (3)  A person contravenes this subsection if:

                     (a)  the National VET Regulator gives a notice in a way mentioned in subsection 57(2); and

                     (b)  the person to whom the notice relates is aware of it; and

                     (c)  the person fails to return the VET qualification or VET statement of attainment to the Regulator within 30 days after the date the notice is published.

Civil penalty:          100 penalty units.

             (4)  A person contravenes this subsection if:

                     (a)  the cancellation of a person’s VET qualification or VET statement of attainment takes effect as mentioned in subsection 59(2); and

                     (b)  the person fails to return the qualification or statement to the National VET Regulator within 7 days after the day that cancellation takes effect.

Civil penalty:          100 penalty units.

Exception

             (5)  Subsections (2) and (3) do not apply if paragraphs 59(2)(a) and (b) apply.

61   Civil penalty—use of cancelled VET qualification or VET statement of attainment

                   A person contravenes this section if:

                     (a)  the person purports to hold a VET qualification or VET statement of attainment; and

                     (b)  the qualification or statement has been cancelled.

Civil penalty:          240 penalty units.