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National Vocational Education and Training Regulator Bill 2010 [2011]

Part 8 Commonwealth-State arrangements

Division 1 Role of Ministerial Council

Subdivision A NVR registered training organisations

185   Standards for NVR Registered Training Organisations

             (1)  The Minister may, by legislative instrument, make standards for NVR registered training organisations, as agreed by the Ministerial Council.

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

             (2)  The agreed standards are to be known as the Standards for NVR Registered Training Organisations .

186   Fit and Proper Person Requirements

             (1)  The Minister may, by legislative instrument, make requirements for assessing whether a person is a fit and proper person, as agreed by the Ministerial Council.

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

             (2)  The agreed requirements are to be known as the Fit and Proper Person Requirements .

187   Data Provision Requirements

             (1)  The Minister may, by legislative instrument, make requirements for data provision, as agreed by the Ministerial Council.

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

             (2)  The agreed requirements are to be known as the Data Provision Requirements .

Subdivision B VET accredited courses

188   Standards for VET Accredited Courses

             (1)  The Minister may, by legislative instrument, make standards for VET accredited courses, as agreed by the Ministerial Council.

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

             (2)  The agreed standards are to be known as the Standards for VET Accredited Courses .

Subdivision C VET Regulators

189   Standards for VET Regulators

             (1)  The Minister may, by legislative instrument, make standards for VET Regulators, as agreed by the Ministerial Council.

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

             (2)  The agreed standards are to be known as the Standards for VET Regulators .

190   Risk Assessment Framework

             (1)  The Minister may, by writing, make guidelines for the National VET Regulator to use when assessing risk, as agreed by the Ministerial Council.

             (2)  The agreed guidelines are to be known as the Risk Assessment Framework .

             (3)  The guidelines made under subsection (1) are not a legislative instrument.

Subdivision D Miscellaneous

191   How the Ministerial Council gives agreement

                   The Ministerial Council is to give its agreement, for the purposes of a provision of this Act, by resolution of the Council passed in accordance with the procedures determined by the Council.



 

Division 2 Conferral of functions and powers by State law

Subdivision A Conferral of functions and powers

192   Commonwealth consent to conferral of functions etc. on the National VET Regulator by corresponding State laws

             (1)  A corresponding State law may confer functions or powers, or impose duties, on the National VET Regulator.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a corresponding State law to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the National VET Regulator; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  Subsection (1) does not extend to a function, power or duty of a kind specified in regulations made for the purposes of this subsection.

             (4)  This Act is not intended to exclude or limit the operation of a corresponding State law that confers any functions or powers, or imposes any duties, on the National VET Regulator to the extent to which that law:

                     (a)  is consistent with subsections (1) to (3); and

                     (b)  is capable of operating concurrently with this Act.

193   Meaning of imposes a duty

                   For the purposes of this Act, a corresponding State law imposes a duty on the National VET Regulator if:

                     (a)  the corresponding State law confers a function or power on the Regulator; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the Regulator to perform the function or to exercise the power.

194   When duty imposed

Application

             (1)  This section applies if a corresponding State law purports to impose a duty on the National VET Regulator.

State legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State concerned; and

                     (b)  imposing the duty by the corresponding State law is consistent with the constitutional doctrines restricting the duties that may be imposed on the National VET Regulator.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the corresponding State law (the Commonwealth having consented under section 192 to the imposition of the duty by the corresponding State law).

Commonwealth legislative power sufficient to support duty but State legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by force of the corresponding State law), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

             (5)  The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the National VET Regulator.

             (6)  To avoid doubt, neither this Act nor any other law of the Commonwealth imposes a duty on the National VET Regulator to the extent to which imposing such a duty would:

                     (a)  contravene any constitutional doctrine restricting the duties that may be imposed on the Regulator; or

                     (b)  otherwise exceed the legislative power of the Commonwealth.

             (7)  Subsections (1) to (6) do not limit section 192.

195   Duty imposed by corresponding State law applying Commonwealth law

             (1)  This section:

                     (a)  applies only for the purposes of the application of the provisions of this Act or another law of the Commonwealth (with or without modification) as a law of a State by a provision of a corresponding State law; and

                     (b)  does not apply for those purposes if the corresponding State law otherwise provides.

             (2)  If the corresponding State law purports to impose a duty on the National VET Regulator to do a particular thing, the duty is taken to be imposed by the corresponding State law to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the State; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the Regulator.

             (3)  To avoid doubt, the corresponding State law does not impose the duty on the National VET Regulator to the extent to which imposing the duty would:

                     (a)  contravene any constitutional doctrine restricting the duties that may be imposed on the Regulator; or

                     (b)  otherwise exceed the legislative powers of the State.

             (4)  If imposing on the National VET Regulator the duty to do that thing would:

                     (a)  contravene any constitutional doctrine restricting the duties that may be imposed on the Regulator; or

                     (b)  otherwise exceed the legislative powers of both the State and the Commonwealth;

the corresponding State law is taken instead to confer on the Regulator a power to do that thing at the discretion of the Regulator.

Subdivision B Jurisdiction of federal courts

196   Conferral of jurisdiction on federal courts

                   If:

                     (a)  a provision of a corresponding State law purports to apply a provision of a law of the Commonwealth (the applied provision ) as a law of the State; and

                     (b)  the applied provision purports to confer jurisdiction in relation to a matter on a federal court;

the jurisdiction in relation to that matter is taken to be conferred on the court by this section.

Subdivision C Administrative decisions

197   Review of certain decisions under State laws

             (1)  Application may be made to the Administrative Appeals Tribunal for review of a reviewable State decision.

             (2)  A decision made by the National VET Regulator in the performance of a function, or the exercise of a power, conferred by a corresponding State law is a reviewable State decision if:

                     (a)  the law under which the decision was made provides for review by the Administrative Appeals Tribunal; and

                     (b)  the decision is declared by the regulations to be a reviewable decision for the purposes of this section.

             (3)  For the purposes of subsection (1), the Administrative Appeals Tribunal Act 1975 has effect as if a corresponding State law were an enactment.

Subdivision D Application to the Australian Capital Territory and the Northern Territory

198   Application to the Australian Capital Territory and the Northern Territory

                   This Division applies to the Australian Capital Territory and the Northern Territory in the same way as it applies to a State.