House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Employment, Skills, Small and Family Business, Senator the Hon Michaelia Cash)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Bill 2020

The National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Bill 2020 ( the Bill ) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The purpose of the Bill is to amend the National Vocational Education and Training Regulator Act 2011 ( NVETR Act ) to strengthen the governance arrangements in relation to the National VET Regulator. The amendments support consistent, fit for purpose, and effective regulation and will enhance stakeholder engagement in Australia's vocational education and training ( VET ) sector.

The amendments in Schedule 1 to the Bill revise and strengthen the governance arrangements for the National VET Regulator by replacing the existing Chief Commissioner/Chief Executive Officer ( CEO ) and two Commissioners with a single independent statutory office holder. The National VET Regulator will be appointed by the Governor-General on a full time basis for a period not exceeding five years and:

•

may be known as the CEO of the Australian Skills Quality Authority;

•

will be the accountable authority for the listed entity known as the Australian Skills Quality Authority for the purposes of the Public Governance Performance and Accountability Act 2013 ( PGPA Act ); and

•

will be the head of the statutory agency (comprised of the National VET Regulator and staff engaged under the Public Service Act 1999 ( Public Service Act )) for the purposes of the Public Service Act.

Further amendments include provisions for acting arrangements, remuneration and allowances, leave, outside employment, resignation, termination and other terms and conditions for the National VET Regulator. The amendments also provide that a person who is an executive officer of a registered training organisation ( RTO ) or has held such a role in the two years prior to appointment will not be eligible for appointment as the National VET Regulator.

The reconstituted National VET Regulator's functions will be very similar to the functions exercised by it and the CEO. Delegation arrangements for the National VET Regulator remain the same so that the Regulator will be able to delegate the Regulator's functions and powers to staff, consultants, Commonwealth authorities and a person who holds any office or appointment under a law of the Commonwealth.

The Minister will continue to be able to give directions to the National VET Regulator, noting that the directions will need to be in relation to the performance of the Regulator's functions or the exercise of the Regulator's powers and that they must not be in relation to particular NVR registered training organisations ( NVR RTOs ) or accreditation of a particular VET accredited course.

For the purposes of the PGPA Act, the listed entity will be known as the Australian Skills Quality Authority ( ASQA ) which will be comprised of the National VET Regulator, members of staff of the Regulator, and consultants engaged under the NVETR Act. The National VET Regulator, staff of the Regulator and consultants engaged under the NVETR Act will all be officials of the listed entity.

The Bill also establishes the National Vocational Education and Training Regulator Advisory Council ( Advisory Council ). The Advisory Council will consist of a Chair and up to nine other members, appointed on a part-time basis for up to three years. The Minister must consult with the Ministerial Council before appointing Advisory Council members. Advisory Council members must satisfy specified eligibility criteria in order to be appointed. The Bill contains provisions relating to acting arrangements, the determination of remuneration and allowances, leave, disclosure of interests, resignation, termination and other terms and conditions for members of the Advisory Council.

The Advisory Council will provide the National VET Regulator with access to expert advice regarding the Regulator's functions. The Advisory Council will not provide advice to the National VET Regulator in relation to particular NVR RTOs, registered providers under the Education Services for Overseas Students Act 2000, or particular VET accredited courses. The Bill also makes provision for the Minister to give written directions to the Advisory Council about the performance of its function.

The amendments relating to the Advisory Council will facilitate continuous improvement of the National VET Regulator's practices and create a mechanism for meaningful engagement with industry and other stakeholders. The Advisory Council may provide advice to the National VET Regulator on the Council's initiative or at the request of the Minister or the National VET Regulator. The National VET Regulator will be required to have regard to advice from the Advisory Council in performing the Regulator's functions.

Schedule 2 of the Bill includes amendments to improve information sharing in relation to information collected by the National Centre for Vocational Education Research ( NCVER ) under the Data Provision Requirements 2012 ( Data Provision Requirements ), a legislative instrument published on the Federal Register of Legislation. These amendments support the operation of the National VET Data Policy that was endorsed in 2017 by the Ministerial Council and which is available on the Department's website (in February 2020 the policy could be accessed at
https://www.employment.gov.au/national-vet-data-policy-0 ).

Schedule 3 of the Bill contains amendments to the National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 ( NVETR Transitional Act ). These amendments set out the transitional and application arrangements for the amendments in Schedule 1 and Schedule 2 of the Bill, including some comprehensive transitional arrangements in relation to things done by, or in relation to, a Commissioner or the Chief Executive Officer, and things done by the National VET Regulator before commencement.

Human rights implications

The Bill engages the following human rights:

•

The right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR );

•

The right to privacy and reputation - Article 17 of the International Covenant on Civil and Political Rights ( ICCPR );

•

The right to work - Article 6 of the ICESCR.

Right to education

The Bill engages the right to education contained in Article 13 of the ICESCR. Article 13 recognises the important personal, societal, economic and intellectual benefits of education.

The measures in the Bill promote the right to education because they seek to strengthen the integrity and quality of the VET sector, as well as safeguard the best interests of students who are engaged in VET.

Specifically, the Bill contains provisions that establish an Advisory Council to provide advice to the National VET Regulator in relation to all of the Regulator's functions. The Advisory Council will be comprised of members with relevant regulatory expertise. The provision of expert advice to the Regulator will enhance the quality of advice that the Regulator relies upon in making decisions, and will encourage and foster a more informed approach by the Regulator. This will enable the National VET Regulator to support best practice regulation, continuous improvement of the VET sector and ensure meaningful engagement between the Regulator and key VET stakeholders. The provision of expert advice for consideration by the Regulator will facilitate better decisions in relation to VET delivery, leading to more quality training outcomes for students, thus promoting their right to education. To the extent that these measures engage the right to education, they are a positive engagement of the right as they will support better educational outcomes for VET students overall.

The Bill also contains provisions which improve information sharing by authorising NCVER and the Department to disclose information collected under the Data Provision Requirements to the entities listed in the Bill. This will enable the diverse needs and requirements of all Australians, including people with disability and those for whom English is not a first language, to be considered in policy, funding and regulation. To the extent that these measures engage the right to education, they are a positive engagement of the right as the individual needs of students can be better supported, resulting in better educational outcomes for all VET students.

The Bill is compatible with the right to education.

Right to privacy and reputation

The Bill engages the right to privacy and reputation contained in Article 17 of the ICCPR. Article 17 recognises that persons should not be subject to arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, nor unlawful attacks on the individual's honour and reputation.

The Bill contains measures which engage the right to privacy and reputation as it contains provisions that authorise:

•

NCVER to disclose information collected in accordance with the Data Provision Requirements to the Department, another Commonwealth authority, a State or Territory authority (other than a registered training organisation) that deals with or has responsibility for matters relating to VET or a VET regulator, for those bodies purposes;

•

NCVER to disclose information collected in accordance with the Data Provision Requirements to persons engaged by NCVER to conduct research on NCVER's behalf; and

•

the Department to disclose personal information collected from NCVER in accordance with these new provisions for the purposes of the Department, to a Commonwealth authority or a person engaged by the Secretary to carry out an activity on behalf of the Department.

The information that NCVER and the Department are being authorised to disclose under these provisions may contain personal information.

NCVER is a not-for-profit Australian company, established by Commonwealth, State and Territory Ministers responsible for VET. It is responsible for collecting, managing, analysing and communicating research and statistics about the Australian VET sector. NCVER collects information about VET students from RTOs as required under the Data Provision Requirements, which are a legislative instrument made under the NVETR Act. This information includes 'personal information' within the meaning of the Privacy Act 1988.

Information is shared through sophisticated technology that protects data from external cyber threats. Data stored in systems is only accessed by authorised personnel and disclosed in accordance with protocols that ensure personal information is protected. To the extent that these measures place a limitation on the right to privacy, such limitation is considered just, reasonable and proportionate for the following reasons:

•

Where NCVER is authorised to disclose information with the bodies listed in the Bill for the purposes of the body, the bodies are limited to the Department, Commonwealth authorities, State and Territory authorities (other than registered training organisations) that deals or has responsibility for matters relating to VET and VET regulators:

o

The sharing of personal information is to enable the effective:

•

administration of VET, including program administration, regulation, monitoring, and evaluation;

•

facilitation of statistics and research relating to education, including surveys and data linkage; and

•

understanding of how the VET market operates, for policy, workforce planning, and consumer information.

o

It is essential that governments and regulators have access to the information collected by NCVER under the Data Provision Requirements so that the spectrum of individual circumstances can be considered in policy, funding and regulatory decision-making.

•

Students are provided with a privacy notice in accordance with Australian Privacy Principle 5 by their RTO at the time their personal information is collected by their RTO (usually during enrolment) that sets out relevant information including the purposes for which the RTO collects their information and to whom the student's information will be disclosed.

•

NCVER may only disclose the information for its purposes to a person engaged by NCVER to conduct research on behalf of NCVER.

•

The Department responsible for the administration of the NVETR Act may only disclose the information to a limited number of bodies for its own purposes, those being a Commonwealth authority or a person engaged by the Department to carry out an activity on the Department's behalf.

•

The Minister's power to make 'information safeguard rules' by legislative instrument as agreed to by the Ministerial Council (to ensure cross-jurisdictional input) adds an additional layer of protection to safeguard the disclosure of personal information. These rules give the Minister the capacity to prescribe particular requirements for these bodies, which further safeguards a person's privacy.

The Bill is compatible with the right to privacy and reputation.

Right to work

The Bill also engages the right to work contained in Article 6(1) of the ICESCR. Article 6(1) recognises the right to work, which includes the right of everyone to the opportunity to gain one's living by work which he or she freely chooses or accepts.

Broadly, the measures in the Bill are all designed to improve and enhance the National VET Regulator's ability to regulate the VET sector, leading to improvements in students' educational outcomes and ultimately in their preparedness to take up opportunities to work. The measures in the Bill therefore, generally, have a positive impact on the right to work and promote that right.

The Bill is compatible with the right to work.

Conclusion

The Bill is compatible with human rights because it advances human rights and to the extent that it may limit human rights, those limitations are necessary, just, reasonable and proportionate.