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National Vocational Education and Training Regulator Bill 2010 [2011]

Part 7 National Vocational Education and Training Regulator

Division 1 Establishment, functions and powers of Regulator

155   Establishment

             (1)  The National Vocational Education and Training Regulator ( National VET Regulator ) is established by this section.

             (2)  The National VET Regulator may also be known by a name specified in the regulations.

             (3)  Each State and Territory Education Minister must be consulted if the National VET Regulator is to be abolished.

156   Constitution

                   The National VET Regulator consists of:

                     (a)  a Chief Commissioner; and

                     (b)  2 Commissioners.

Note:          The National VET Regulator does not have a legal identity separate from the Commonwealth.

157   Functions of the National VET Regulator

             (1)  The National VET Regulator has the following functions:

                     (a)  to register an organisation as an NVR registered training organisation;

                     (b)  to accredit courses that may be offered and/or provided by registered training organisations;

                     (c)  to carry out compliance audits of NVR registered training organisations;

                     (d)  to promote, and encourage the continuous improvement of, a registered training organisation’s capacity to provide a VET course or part of a VET course;

                     (e)  if requested to do so by the Minister, or on the Regulator’s own initiative, to advise and make recommendations to the Minister on matters relating to vocational education and training;

                      (f)  if requested to do so, in writing, by the Education Minister for a State or Territory, or on the Regulator’s own initiative, to advise and make recommendations to the Education Minister for the State or Territory on specific matters relating to vocational education and training in the State or Territory;

                     (g)  if requested to do so, in writing, by the Chair of the Ministerial Council, or on the Regulator’s own initiative, to advise and make recommendations to the Ministerial Council on general matters relating to vocational education and training in all jurisdictions;

                     (h)  to collect, analyse, interpret and disseminate information about vocational education and training;

                      (i)  to publish performance information, of a kind prescribed by the regulations, relating to NVR registered training organisations;

                      (j)  to conduct training programs relating to the regulation of registered training organisations and/or the accreditation of courses;

                     (k)  to enter into arrangements with occupational licensing bodies, other industry bodies, or both, for the purpose of ensuring compliance by NVR registered training organisations with this Act;

                      (l)  to cooperate with a regulatory authority of another country that has responsibility relating to the quality or regulation of vocational education and training for all, or part, of the country;

                    (m)  to develop relationships with its counterparts in other countries;

                     (n)  to develop key performance indicators, to be agreed by the Minister, against which the Regulator’s performance can be assessed each financial year;

                     (o)  to develop service standards that the Regulator must meet in performing its functions;

                     (p)  any other function relating to vocational education and training that is set out in a legislative instrument made by the Minister;

                     (q)  such other functions as are conferred on the Regulator by or under:

                              (i)  this Act; or

                             (ii)  the Education Services for Overseas Students Act 2000 or any other law of the Commonwealth;

                      (r)  to do anything incidental to, or conducive to, the performance of any of the above functions.

             (2)  When preparing advice for the purpose of paragraphs (1)(f) and (g), the National VET Regulator may consult with VET Regulators in non-referring States.

             (3)  The Minister must not set out a function in a legislative instrument under paragraph (1)(p) unless the Ministerial Council has agreed to the function.

Note 1:       For how the Ministerial Council gives agreement, see section 191.

Note 2:       Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003 do not apply to a legislative instrument that sets out a function (see sections 44 and 54 of that Act).

             (4)  In performing the National VET Regulator’s functions, the Regulator must apply the Risk Assessment Framework.

             (5)  In performing the National VET Regulator’s functions, the Regulator must have regard to any reports or information it receives about matters relating to this Act.

             (6)  A failure to comply with the requirements of subsection (4) or (5) in relation to the performance of a function of the National VET Regulator does not affect the validity of the performance of the function.

             (7)  The National VET Regulator has the power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.

Note:          Other functions may be conferred on the National VET Regulator by State law, see Division 2 of Part 8.

158   Financial Viability Risk Assessment Requirements

             (1)  The National VET Regulator must, by legislative instrument, make requirements relating to the financial viability of NVR registered training organisations.

             (2)  The requirements are to be known as the Financial Viability Risk Assessment Requirements .

159   Independence of the National VET Regulator

                   Subject to section 160, the National VET Regulator is not subject to direction from anyone in relation to the performance of its functions or the exercise of its powers.

160   Minister may give directions to the National VET Regulator

             (1)  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.

Note:          Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003 do not apply to the direction (see sections 44 and 54 of that Act).

             (2)  However, the Minister must not give a direction about, or in relation to:

                     (a)  the registration of a particular person or body as an NVR registered training organisation; or

                     (b)  the accreditation of a particular course as a VET accredited course; or

                     (c)  a particular NVR registered training organisation; or

                     (d)  a person in respect of whom a particular VET accredited course is accredited.

             (3)  The National VET Regulator must comply with a direction given under subsection (1).

161   National VET Regulator has privileges and immunities of the Crown

                   The National VET Regulator has the privileges and immunities of the Crown.



 

Division 2 Appointment of Commissioners

162   Appointment

             (1)  A Commissioner is to be appointed by the Governor-General by written instrument, on a full-time basis.

Note:          A Commissioner is eligible for reappointment, see the Acts Interpretation Act 1901 .

             (2)  A person may only be appointed as a Commissioner if the Minister is satisfied that the person has appropriate qualifications, knowledge or experience.

             (3)  However, a person who is, or has been at any time in the 2 years before an appointment is made, an executive officer of a registered training organisation is not eligible for appointment as a Commissioner.

             (4)  The Governor-General must appoint a Commissioner to be the Chief Commissioner.

             (5)  The Governor-General may appoint another Commissioner to be the Deputy Chief Commissioner.

163   Term of appointment

                   A Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

164   Remuneration and allowances

             (1)  A Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is determined by the Minister.

             (2)  A Commissioner is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

165   Leave of absence

             (1)  A Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant a Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

166   Outside employment

                   A Commissioner must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

167   Disclosure of interests to the Minister

             (1)  A Commissioner must give written notice to the Minister of all interests, pecuniary or otherwise, that the Commissioner has or acquires and that conflict or could conflict with the proper performance of the National VET Regulator’s functions.

             (2)  The notice must be given to the Minister as soon as practicable after the Commissioner becomes aware of the potential for conflict of interest.

168   Other terms and conditions

                   A Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined, in writing, by the Minister.

169   Resignation

             (1)  A Commissioner may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  If the Chief Commissioner resigns, he or she also resigns his or her position as the Chief Executive Officer.

Note:          Subsection (2) does not prevent a person who is both the Chief Commissioner and Chief Executive Officer from being reappointed only as a Commissioner.

             (3)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

170   Termination of appointment

             (1)  The Governor-General may terminate the appointment of a Commissioner:

                     (a)  for misbehaviour or physical or mental incapacity; or

                     (b)  if the Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (c)  if the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (d)  if the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 166); or

                     (e)  if the Commissioner fails, without reasonable excuse, to comply with section 167 or subsection 175(1).

             (2)  The Minister must terminate the appointment of a Commissioner if the Commissioner becomes an executive officer of a registered training organisation.

171   Acting Chief Commissioner

             (1)  If a Deputy Chief Commissioner is appointed, the Deputy Chief Commissioner is to act as the Chief Commissioner:

                     (a)  during a vacancy in the office of the Chief Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Chief Commissioner:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

             (2)  Anything done by or in relation to the Deputy Chief Commissioner when purporting to act under this section is not invalid merely because the occasion to act had not arisen or had ceased.

Note:          See the Acts Interpretation Act 1901 .

172   Acting Commissioners

             (1)  If a Deputy Chief Commissioner is appointed, the Governor-General may, by written instrument, appoint a person to act as the Deputy Chief Commissioner:

                     (a)  during a vacancy in the office of the Deputy Chief Commissioner; or

                     (b)  during any period, or during all periods, when the Deputy Chief Commissioner:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

             (2)  The Governor-General may, by written instrument, appoint a person to act as a Commissioner (other than the Chief Commissioner or Deputy Chief Commissioner):

                     (a)  during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Commissioner:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

             (3)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

Note:          See the Acts Interpretation Act 1901 .



 

Division 3 National VET Regulator procedures

Subdivision A Meetings

173   Times and places of meetings

             (1)  The Chief Commissioner must ensure that such meetings as are necessary for the efficient performance of the National VET Regulator’s functions are held.

             (2)  Meetings are to be held at such times and places as the Chief Commissioner decides.

             (3)  The Chief Commissioner must convene a meeting if requested, in writing, by the other 2 Commissioners.

174   Conduct of meetings

Presiding at meetings

             (1)  The Chief Commissioner presides at all meetings at which he or she is present.

             (2)  If the Chief Commissioner is not present at a meeting, a person appointed by the Chief Commissioner must be present and preside.

Quorum

             (3)  At a meeting of the National VET Regulator, a quorum is constituted by 2 Commissioners.

Rules of procedure

             (4)  The National VET Regulator may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

Note:          Section 33B of the Acts Interpretation Act 1901 provides for participation in meetings by telephone etc.

Voting

             (5)  The person presiding at a meeting of the National VET Regulator has a deliberative vote but, if the votes are equal, does not have a casting vote.

Minutes

             (6)  The National VET Regulator must ensure that minutes of its meetings are kept.

175   Disclosure of interests

             (1)  If a Commissioner has an interest, pecuniary or otherwise, in a matter being considered, or about to be considered, at a meeting, the Commissioner must disclose the nature of that interest to the other Commissioners.

             (2)  The disclosure must be made as soon as possible after the relevant facts have come to the Commissioner’s knowledge.

             (3)  The disclosure must be recorded in the minutes of the meeting.

             (4)  Unless the National VET Regulator otherwise determines, the Commissioner:

                     (a)  must not be present during the Regulator’s deliberation on the matter; and

                     (b)  must not take part in the Regulator’s decision on the matter.

             (5)  For the purposes of making a determination under subsection (4), the Commissioner:

                     (a)  must not be present during any of the National VET Regulator’s deliberations for the purpose of making the determination; and

                     (b)  must not take part in making the determination.

             (6)  A determination under subsection (4) must be recorded in the minutes of the meeting.

Subdivision B Decisions without meetings

176   Decisions without meetings

             (1)  A decision is taken to have been made at a meeting of the National VET Regulator if:

                     (a)  without meeting, a majority of Commissioners indicate agreement with the proposed decision in accordance with the method determined by the Regulator under subsection (2); and

                     (b)  all Commissioners were informed of the proposed decision, or reasonable efforts were made to inform all Commissioners of the proposed decision.

             (2)  Subsection (1) applies only if the National VET Regulator:

                     (a)  has determined that it applies; and

                     (b)  has determined the method by which Commissioners are to indicate agreement with proposed decisions.

177   Record of decisions

                   The National VET Regulator must keep a record of decisions made in accordance with section 176.



 

Division 4 Ensuring compliance with the Standards for VET Regulators

178   National VET Regulator to cooperate with assessments

                   The National VET Regulator must cooperate with the Ministerial Council when the Council assesses whether the Regulator continues to comply with the Standards for VET Regulators.



 

Division 5 Chief Executive Officer

179   Chief Executive Officer

             (1)  There is to be a Chief Executive Officer of the National VET Regulator.

             (2)  The Chief Commissioner is the Chief Executive Officer.

180   Functions and powers of the Chief Executive Officer

             (1)  The Chief Executive Officer is responsible for the management and administration of the National VET Regulator.

             (2)  All acts and things done in the name of, or on behalf of, the National VET Regulator by the Chief Executive Officer are taken to have been done by the Regulator.

181   Minister may give directions to Chief Executive Officer

             (1)  The Minister may, by legislative instrument, give written directions to the Chief Executive Officer about the performance of his or her functions.

Note:          Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003 do not apply to the direction (see sections 44 and 54 of that Act).

             (2)  The Chief Executive Officer must comply with a direction under subsection (1).

             (3)  Subsection (2) does not apply to the extent that the direction relates to the Chief Executive Officer’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to the National VET Regulator.



 

Division 6 Staff and consultants

182   Staff

             (1)  The staff of the National VET Regulator are to be persons engaged under the Public Service Act 1999 .

             (2)  For the purposes of the Public Service Act 1999 :

                     (a)  the Chief Executive Officer and the staff of the National VET Regulator together constitute a Statutory Agency; and

                     (b)  the Chief Executive Officer is the Head of that Statutory Agency.

183   Staff to be made available to the National VET Regulator

             (1)  The National VET Regulator is to be assisted by:

                     (a)  officers and employees of Agencies (within the meaning of the Public Service Act 1999 ), and of authorities of the Commonwealth, whose services are made available to the Regulator in connection with the performance of its functions or the exercise of its powers; and

                     (b)  persons whose services are made available under arrangements made under subsection (2).

             (2)  The Chief Executive Officer may arrange with the appropriate State or Territory authority or officer of a State or Territory authority to make officers or employees available to the National VET Regulator to perform services in connection with the performance of the Regulator’s functions or the exercise of its powers.

             (3)  An arrangement under subsection (2) may provide for the Commonwealth to reimburse a State or Territory with respect to the services of a person or persons to whom the arrangement relates.

             (4)  When performing services for the National VET Regulator under this section, a person is subject to the directions of the Chief Executive Officer.

184   Consultants

             (1)  To assist the National VET Regulator in the performance of its functions, the Chief Executive Officer may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants.

             (2)  Consultants are to be engaged on the terms and conditions that the Chief Executive Officer determines in writing.