House of Representatives

Explanatory Memorandum

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

Schedule 1 - Governance arrangements

Summary

11. The amendments in Schedule 1 of the Bill revise and strengthen the governance arrangements for the National VET Regulator.

12. The amendments change the National VET Regulator's governance structure, replacing the existing Chief Commissioner/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 5 years and:

•

may be known as the CEO of ASQA;

•

will be the accountable authority for the listed entity known as the 'Australian Skills Quality Authority' for the purposes of the 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) for the purposes of that Act.

13. 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 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.

14. 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 will remain the same so that the National VET 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.

15. 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 RTOs, or the accreditation of a particular VET accredited course.

16. For the purposes of the PGPA Act, the listed entity will be known as the 'Australian Skills Quality Authority' 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. Currently under section 156A of the NVETR Act, the Commissioners, CEO and staff of the Regulator and consultants are 'officials'. Reflecting the new governance structure, this provision ensures that for the purposes of finance law, the National VET Regulator is an official. The staff of the National VET Regulator and consultants will remain as 'officials'.

17. The Bill also establishes the 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.

18. 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, particular VET accredited courses or registered providers under the ESOS Act. The Bill also makes provision for the Minister to give written directions to the Advisory Council about the performance of its functions.

19. 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 Regulator. The National VET Regulator will be required to have regard to advice from the Advisory Council in performing the Regulator's functions.

Detailed explanation

Part 1 - Main amendments

National Vocational Education and Training Regulator Act 2011

Item 1 - Section 3

20. This item amends section 3 of the NVETR Act to insert the following definitions:

•

Advisory Council means the National Vocational Education and Training Regulator Advisory Council established by section 174.

•

Advisory Council member means a member of the Advisory Council and includes the Chair.

•

Chair means the Chair of the Advisory Council.

Item 2 - Section 3

21. This item repeals the definition of 'Chief Commissioner', 'Chief Executive Officer' and 'Commissioner'. This amendment is linked to the changes in items 28, 29, 40 and 41 of the Bill that relate to the National VET Regulator's governance arrangements.

Item 3 - Section 3 (paragraph (b) of the definition of Commonwealth authority )

22. This item omits the words '(other than the National VET Regulator)' from the definition of Commonwealth authority . This exclusion is no longer necessary as the term relates to disclosures by the National VET Regulator (in section 205 and 206) and the National VET Regulator cannot disclose to itself.

Item 4 - Section 3 (definition of corporate plan)

23. This item amends the definition of ' corporate plan ' to be a corporate plan prepared by the National VET Regulator, instead of the Chief Executive Officer, under section 35 of the PGPA Act.

Item 5 - Section 3 (paragraph (a) of the definition of member of the staff of the Regulator )

Item 6 - Section 3 (paragraph (b) of the definition of member of the staff of the Regulator )

24. These items amend the definition of ' member of the staff of the Regulator ' to mean:

(a)

a person referred to in subsection 170(1); or

(b)

a person whose services are made available to the National VET Regulator as mentioned in subsection 171(1).

25. This amendment is linked to the changes in items 28, 29, 40 and 41 of the Bill that relate to the National VET Regulator's governance arrangements and reconstituting the Regulator.

Item 7 - Section 3 (definition of National VET Regulator )

26. This item amends the definition of National VET Regulator so that the National VET Regulator means the person appointed under subsection 162(1) to the position of the National Vocational Education and Training Regulator referred to in subsection 155(1).

Item 8 - Section 3

27. Item 8 inserts a definition of ' paid work ' which means work for financial gain or reward (whether as an employee, a self-employed person or otherwise). This definition relates to new section 166 at item 40 of the Bill.

Item 9 - After section 3

28. Item 9 inserts new section 3A - Vacancy in the office of an Advisory Council member. This section provides that for the purposes of a reference in the NVETR Act to a vacancy in the office of an Advisory Council member, or the Acts Interpretation Act to a vacancy in the membership of a body, there are taken to be nine offices of Advisory Council members in addition to the Chair.

Item 10 - Section 18

Item 11 - Paragraph 27(a) and (b)

Item 12 - Section 28(2)

Item 13 - Section 30

Item 14 - Section 34

Item 15 - Section 40

Item 16 - Subsection 41(3)

Item 17 - Section 45

Item 18 - Section 49

Item 19 - Paragraph 51(2)(a)

Item 20 - Subsection 52(2)

Item 21 - Subsection 57(2)

Item 22 - Paragraph 57(2)(a)

29. The purpose of the amendments in items 10 to 22 and other similar minor technical amendments in the Bill referencing the National VET Regulator is to ensure the provisions correctly reference the Regulator, now that the Regulator will be a statutory officer holder and not a body.

30. Item 10 makes a minor amendment to section 18 substituting 'its decision' with the word 'deciding'.

31. Item 11 makes a minor amendment to paragraph 27(a) and (b), substituting 'its functions' with 'the Regulator's functions'.

32. Item 12 makes a minor amendment to subsection 28(2), substituting 'its website' with 'the Regulator's website'.

33. Item 13 makes a minor amendment to section 30, substituting 'its decision', wherever occurring, with 'deciding'.

34. Item 14 makes a minor amendment to section 34, substituting 'its decision' with 'deciding'.

35. Item 15 makes a minor amendment to section 40, substituting 'it may' with 'the Regulator may'.

36. Item 16 makes a minor amendment to subsection 41(3), substituting 'its position' with 'the Regulator's position'.

37. Item 17 makes a minor amendment to section 45, substituting 'its decision' with 'deciding'.

38. Item 18 makes a minor amendment to section 49, substituting 'its decision', wherever occurring, with 'deciding'.

39. Item 19 makes a minor amendment to paragraph 51(2)(a), substituting 'its own initiative' with 'the Regulator's own initiative'.

40. Item 20 makes a minor amendment to subsection 52(2), substituting 'its own initiative' with 'the Regulator's own initiative'.

41. Item 21 makes a minor amendment to subsection 57(2), substituting the words 'it considers' with 'the Regulator considers'.

42. Item 22 makes a minor amendment to paragraph 57(2)(a), substituting the words 'its website' with 'the Regulator's website'.

Item 23 - Paragraph 62(3)(b)

Item 24 - Sections 89 and 90

43. The amendments in items 23 and 24 relate to amendments in item 40 which abolishes the position of Chief Commissioner.

44. Item 23 makes a minor amendment to paragraph 62(3)(b), substituting 'Chief Commissioner' with 'Regulator'.

45. Item 24 makes minor amendments to sections 89 and 90, substituting 'Chief Commissioner', wherever occurring, with 'National VET Regulator'.

Item 25 - Part 7 (heading)

46. Item 25 repeals the heading and substitutes with 'Part 7 - Administration'.

Item 26 - Division 1 of Part 7 (heading)

47. Item 26 repeals the heading and substitutes with 'Division 1 - National Vocational Education and Training Regulator'.

Item 27 - Before section 155

48. Item 27 inserts a heading 'Subdivision A - Establishment, functions and powers of the National VET Regulator' before section 155.

Item 28 - Subsections 155(1) and (2)

49. Subsection 155(1) established the National VET Regulator. Subsection 155(2) provided that the National VET Regulator may also be known by a name specified in the regulations. Item 28 repeals subsections 155(1) and (2), and replaces it with new subsections. New subsection 155(1) provides that 'There is to be a National Vocational Education and Training Regulator'. New subsection 155(2) provides that the National VET Regulator may also be known as the Chief Executive Officer of the Australian Skills Quality Authority. A new note provides that for the purposes of the finance law (within the meaning of the PGPA Act), the National VET Regulator is the accountable authority of the listed entity known as the Australian Skills Quality Authority: see section 173.

50. This change in language reflects that the National VET Regulator is changing from a body to a statutory office holder.

51. The revised structure ensures that the National VET Regulator remains an independent listed non-corporate Commonwealth entity.

Item 29 - Sections 156 and 156A

52. Item 29 repeals section 156 reflecting the fact that the National VET Regulator will no longer consist of a Chief Commissioner and two Commissioners. Item 29 also repeals section 156A as the description of the application of finance law in section 156A is out of date in the new governance arrangements for ASQA. New section 173 deals with the application of finance law to the revised governance arrangements.

Item 30 - Paragraph 157(1)(m)

Item 31 - Paragraph 157(1)(o)

Item 32 - Subsection 157(5)

Item 33 - After subsection 157(5)

Item 34 - Subsection 157(6)

Item 35 - Subsection 157(7)

53. Section 157 of the NVETR Act sets out the functions of the National VET Regulator. Items 30-32 and 35 make minor technical amendments reflecting that the Regulator will be a statutory office holder and not a body.

54. Item 30 omits the words 'its counterparts' and substitutes with 'the Regulator's counterparts' in paragraph 157(1)(m).

55. Item 31 makes minor amendments to paragraph 157(1)(o), omitting the words 'its functions' and substituting with 'the Regulator's functions'.

56. Item 32 makes minor amendments to subsection 157(5) to omit the words 'it receives' and substitutes with 'the Regulator receives'.

57. Item 33 inserts a new subsection 157(5A) into the NVETR Act. New subsection 157(5A) provides that the National VET Regulator must have regard to any advice provided by the Advisory Council in performing its functions. New subsection 157(5A) does not limit subsection 157(5).

58. Item 34 omits 'or (5)' from subsection 157(6) and substitutes with '(5) or (5A)' so that a failure to comply with the requirements in new subsection 157(5A) will not affect the validity of the performance of the National VET Regulator's functions. This amendment is necessary in order to avoid any uncertainty about the decisions made by the National VET Regulator, where for example, due to an oversight by the National VET Regulator, advice from the Advisory Council has not been considered or there is a lack of certainty about the consideration having occurred. A no-invalidity provision currently exists for a failure by the National VET Regulator to comply with the requirements in subsections 157(4) and (5) of the NVETR Act.

59. Item 35 makes minor amendments to subsection 157(7), substituting 'its functions' with 'the Regulator's functions'.

Item 36 - After section 157

60. Item 36 inserts new section 157A - National VET Regulator to cooperate with assessments. It provides that 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.

61. Section 178 of the NVETR Act (which is contained in Part 7, Division 4), provides that 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. Part 7, Division 4 of the NVETR Act is repealed by item 41. Item 36 inserts section 157A which replicates the contents of the repealed section 178.

Item 37 - Section 159

62. Item 37 makes a minor amendment to section 159, substituting 'its functions or the exercise of its powers', with 'the Regulator's functions or the exercise of the Regulator's powers'.

Item 38 - Subsection 160(1)

63. Item 38 repeals subsection 160(1) and replaces it with a new subsection to provide that the Minister may, by legislative instrument, give directions to the National VET Regulator in relation to the performance of the Regulator's functions or the exercise of the Regulator's powers. A note provides that section 42 (disallowance) and Part 3 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the direction. Item 2 in section 9 (disallowance) and item 3 in section 11 (sunsetting) of the Legislation (Exemptions and Other Matters) Regulation 2015 provide that instruments that are a direction by a Minister to any person or body are an exempted class of instruments for the purposes of disallowance and sunsetting.

Item 39 - At the end of section 160

64. Item 39 inserts a new subsection 160(4) into the NVETR Act. The effect of this new subsection is that the requirement that the National VET Regulator must comply with a direction given by the Minister under subsection 160(1) does not apply to the extent that the direction relates to the National VET Regulator's performance of functions, or exercise of powers, under the Public Service Act and PGPA Act. While it is appropriate for the Minister responsible for VET to direct the National VET Regulator in relation to performance of powers under the NVETR Act, it is not appropriate for that Minister to direct the National VET Regulator in respect of powers under the Public Service Act and PGPA Act.

Item 40 - At the end of Division 1 of Part 7

Subdivision B - Appointment and terms and conditions of the National VET Regulator

65. Item 40 inserts a number of new sections into the NVETR Act under new Subdivision B - Appointment and terms and conditions of the National VET Regulator.

66. New section 162 provides for the appointment of the National VET Regulator.

67. New sub-section 162(1) provides that the National VET Regulator is to be appointed by the Governor-General by written instrument, on a full-time basis as the appointment is considered a significant appointment. A note refers to section 33AA of the Acts Interpretation Act which allows for reappointment of the National VET Regulator. The National VET Regulator will hold office for the period specified in the instrument of appointment and that the period must not exceed five years (new subsection 162(2)).

68. A person may only be appointed as the National VET Regulator if the Minister is satisfied that the person has the appropriate qualifications, knowledge and experience (new subsection 162(3)). New subsection 162(4) provides that a person who is, or has been at any time in the two years before an appointment is made, an executive officer of a RTO, is not eligible for appointment as the National VET Regulator.

69. New section 163 provides that the Minister may, by written instrument, appoint a person to act as the National VET Regulator during a vacancy in the office of the Regulator (whether or not an appointment has previously been made to the office) or during any period, or during all periods, when the Regulator is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office. A person is not eligible to act as the National VET Regulator if they fail to meet the requirements in new subsections 162(3) and (4) (new subsection 163(2)).

70. New section 164 sets out provisions relating to remuneration of the National VET Regulator. New subsection 164(1) provides that the National VET Regulator is to be paid the remuneration that is determined by the Remuneration Tribunal and that if there is no determination, the remuneration that is determined by the Minister. New subsection 164(2) provides that the National VET Regulator is to be paid the allowances that are prescribed by the regulations. Subsections 164(1) and (2) have effect subject to the Remuneration Tribunal Act (new subsection 164(3)).

71. New subsection 165(1) provides that the National VET Regulator has the recreation leave entitlements that are determined by the Remuneration Tribunal. The Minister may grant the National VET Regulator leave of absence, other than recreation leave, on the terms and conditions including as to remuneration, as determined by the Minister (new subsection 165(2)).

72. The National VET Regulator must not engage in paid work outside the duties of the Regulator's office without the Minister's approval (new section 166). The Bill includes a new definition of paid work in section 3 of the NVETR Act.

73. The National VET Regulator holds office on the terms and conditions (if any) in relation to matters not covered by the NVETR Act, that are determined, in writing, by the Minister (new section 167).

74. New section 168 provides that the National VET Regulator may resign by giving the Governor-General a written resignation. 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.

75. New section 169 sets out termination arrangements for the National VET Regulator. The Governor-General may terminate the appointment of the Regulator for misbehaviour or if the National VET Regulator is unable to perform the duties of the Regulator's office because of physical or mental incapacity (new subsection 169(1)).

76. The Governor-General may also terminate the appointment of the National VET Regulator if the Regulator becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the Regulator's creditors or makes an assignment of the Regulator's remuneration for the benefit of the Regulator's creditors (new paragraph 169(2)(a)).

77. The National VET Regulator's appointment may also be terminated by the Governor-General if the Regulator is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months period or the Regulator engages, except with the Minister's approval, in paid work outside the duties of the Regulator's office; or the Regulator fails, without reasonable excuse, to comply with section 29 of the PGPA or rules made for the purposes of that section (new paragraphs 169(2)(b),(c) and (d)).

78. New subsection 169(3) providers that the Minister must terminate the appointment of the National VET Regulator if the Regulator becomes an executive officer of an RTO. It is reasonable for the Minister, rather than the Governor General, to terminate the appointment of the National VET Regulator in this circumstance. Termination under this subsection is not discretionary and the circumstance giving rise to the need to terminate the appointment is determined objectively, that is, the Regulator becomes an executive officer of a registered training organisation. The approach maintains the Minister's powers that were previously set out in subsection 170(2) of the NVETR Act to terminate the appointment of a Commissioner if they became an executive officer of a RTO.

Subdivision C - Staff and consultants

79. Item 40 also includes a new Subdivision C - Staff and consultants. The Subdivision sets out the arrangements for staff and consultants that will be made available to assist the National VET Regulator.

80. New section 170 provides for the staff required to assist the National VET Regulator. New subsection 170(1) provides that the staff required to assist the National VET Regulator in the performance of the Regulator's functions must be engaged under the Public Service Act. New subsection 170(2) provides that the National VET Regulator and staff referred to in subsection (1) constitute a Statutory Agency and the National VET Regulator is the Head of that Statutory Agency.

81. New section 171 provides for staff to be made available to the National VET Regulator. In particular the National VET Regulator may be assisted by officers and employees of Agencies (within the meaning of the Public Service Ac t) and authorities of the Commonwealth, whose services are made available to the Regulator in connection with the performance of the Regulator's functions or the exercise of the Regulator's powers, as well as persons whose services are made available under arrangements made under subsection 171(2) (new subsection 171(1)).

82. New subsection 171(2) provides that the National VET Regulator may arrange with the appropriate State or Territory authority to make officers or employees available to the Regulator to perform services in connection with the performance of the Regulator's functions or the exercise of the Regulator's powers. Should there be an arrangement under subsection 171(2), such arrangement 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 (new subsection 171(3)). New subsection 171(4) provides that when performing services for the National VET Regulator under this section, a person is subject to the directions of the Regulator. The subsection enables the National VET Regulator to access persons with jurisdictional or regional expertise when appropriate and to provide directions to that person.

83. New section 172 provides for consultants. In particular, the National VET Regulator may, on behalf of the Commonwealth, engage consultants to assist in the performance of the Regulator's functions (new subsection 172(1)). Consultants are to be engaged on the terms and conditions that the National VET Regulator determines in writing (new subsection 172(2)). The subsection will enable the National VET Regulator to engage consultants with particular skills or areas of expertise to provide advice and support to the organisation when required.

Subdivision D - Application of the finance law

84. Item 40 also inserts Subdivision D - Application of the finance law, into the NVETR Act.

85. Section 173 provides that for the purposes of the finance law (within the meaning of the PGPA Act):

•

the National VET Regulator, members of the staff of the Regulator and consultants engaged under section 172 is a listed entity;

•

the listed entity is to be known as the Australian Skills Quality Authority;

•

the National VET Regulator is the accountable authority of the listed entity;

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the National VET Regulator, members of staff of the Regulator and consultants engaged under section 172 are officials of the listed entity;

•

the purposes of the listed entity include the functions of the National VET Regulator referred to in section 157.

86. A note provides that the National VET Regulator may also be known as the Chief Executive Officer of the Australian Skills Quality Authority: see new subsection 155(2).

Item 41 - Divisions 2, 3, 4, 5 and 6 of Part 7

87. Item 41 repeals Divisions 2, 3, 4, 5 and 6 of Part 7 of the NVETR Act.

Division 2 - National Vocational Education and Training Regulator Advisory Council

88. Item 41 also inserts a new Division 2 - National Vocational Education and Training Regulator Advisory Council into the NVETR Act, which is broken into three subdivisions.

Subdivision A - Establishment and function of the Advisory Council

89. Item 41 inserts new Subdivision A of Division 2 of Part 7 - Establishment and function of the Advisory Council into the NVETR Act. New section 174 provides that the Advisory Council is established by this section.

90. New section 175 sets out the function of the Advisory Council. New subsection 175(1) provides that the function of the Advisory Council is to provide advice to the National VET Regulator on the Regulator's functions. The advice provided to the National VET Regulator is to be general in nature. To that end, new subsection 175(2) provides that the Advisory Council's function does not include giving advice about, or in relation to:

•

the registration of a particular person or body as an NVR RTO, or

•

the accreditation of a particular course as a VET accredited course, or

•

a particular NVR RTO, or

•

a person in respect of whom a particular VET accredited course is accredited; or

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registration under the ESOS Act; or

•

a particular registered provider under the ESOS Act.

91. The above restrictions on the functions of the Advisory Council reflect the purpose of the Advisory Council being to provide broad strategic advice to the National VET Regulator, and not to act as a regulatory or investigative body. The section provides clarity in relation to the different functions of the National VET Regulator and those of the Advisory Council.

92. New subsection 175(3) provides that the Advisory Council may perform its function on the Advisory Council's own initiative, or at the request of the National VET Regulator or the Minister.

93. The Minister may give directions to the Advisory Council (new section 176). New subsection 176(1) provides that the Minister may, by legislative instrument, give written directions to the Advisory Council about the performance of the Advisory Council's function. The Advisory Council must comply with a Ministerial direction (new subsection 176(2). Since the Minister may only give directions to the Advisory Council about the performance of the Advisory Council's function, by implication, the Minister may not give directions to the Advisory Council about, or in relation to, amongst other things:

•

the registration of a particular person or body as an NVR RTO, or

•

the accreditation of a particular course as a VET accredited course, or

•

a particular NVR RTO, or

•

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

94. A note provides that section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions. Item 2 in section 9 (disallowance) and item 3 in section 11 (sunsetting) of the Legislation (Exemptions and Other Matters) Regulation 2015 provide that instruments that are a direction by a Minister to any person or body are an exempted class of instruments for the purposes of disallowance and sunsetting.

95. The Advisory Council will provide the National VET Regulator with access to expert strategic advice, facilitating continuous improvement of its practice. It will enhance the National VET Regulator's regulatory practice, and enable meaningful sector engagement. This will support the National VET Regulator to continue to build and maintain the confidence of regulated entities and the broader community.

Subdivision B - Appointment and terms and conditions of the Advisory Council

96. Item 41 also inserts Subdivision B of Division 2 of Part 7 into the NVETR Act. Subdivision B makes provision for appointments, acting arrangements, remuneration and allowances, leave, disclosure of interests, vacancies, resignation, and other terms and conditions relating to members of the Advisory Council.

97. New section 177 provides that membership of the Advisory Council comprises a Chair and not more than nine members.

98. New section 178 provides for the appointment of members to the Advisory Council. Each member is to be appointed by the Minister, by written instrument, on a part-time basis. A note at the end of new subsection 178(1) provides that an Advisory Council member may be reappointed in accordance with section 33AA of the Acts Interpretation Act.

99. New subsection 178(2) provides that before appointing an Advisory Council member, the Minister must consult with the Ministerial Council. The purpose of consultation is for the Minister to seek advice from the Ministerial Council on potential appointments. To ensure the ability of the Advisory Council to draw on diverse sources of expertise, the outcome of the Minister's decision on each appointment does not need to ensure proportional representation of interest groups or State and Territory officials. An Advisory Council member will hold office for the period specified in the instrument of appointment, which period must not exceed three years (new subsection 178(3)). New subsection 178(4) provides that a person is not eligible for appointment to the Advisory Council unless the Minister is satisfied that the person has substantial experience or knowledge in at least one of the following fields:

•

delivering training;

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operating or managing an RTO;

•

managing work-based placements for VET students or employing persons with VET qualifications;

•

regulating industry sectors and developing and implementing best-practice regulation principles;

•

advocating on behalf of VET students;

•

communicating and engaging with industry and other stakeholders;

•

any other appropriate field of expertise.

100. New section 179 sets out how acting appointments to the Advisory Council will operate. With respect to the Chair of the Advisory Council, the Minister may, by written instrument, appoint an Advisory Council member to act as the Chair during a vacancy in the office of the Chair, or during any period, or during all periods, when the Chair is absent from duty, absent from Australia, or in circumstances where for any reason, is otherwise unable to perform the duties of the office (new subsection 179(1)).

101. In respect of other Advisory Council members, the Minister may, by written instrument, appoint a person (who is not the Chair) to act as an Advisory Council member when there is a vacancy in the office of an Advisory Council member (which is not that of the Chair) (new paragraph 179(2)(a)). The Minister may do so regardless of whether or not an appointment has previously been made to the office (new paragraph 179(2)(a)). The Minister may also, by written instrument, appoint a person to act as an Advisory Council member during any period, or during all periods, when an Advisory Council member (other than the Chair) is absent from duty, or from Australia, or is for any reason, unable to perform the duties of the office (new paragraph 179(2)(b)).

102. New subsection 179(3) provides that a person is not eligible for appointment as an acting Advisory Council member under new subsection 179(2) unless the person is eligible for appointment as an Advisory Council member. Note 1 at the end of this provision refers the reader to new subsection 178(4) (eligibility requirements for appointment as an Advisory Council member). The purpose of this requirement is to maintain the relevant expertise of the Advisory Council as a whole during acting or transition periods. Note 2 refers readers to sections 33AB and 33A of the Acts Interpretation Act for rules that apply to acting appointments.

103. New section 180 sets out the remuneration provisions of the Advisory Council. An Advisory Council member is to be paid the remuneration determined by the Remuneration Tribunal. If no determination is in operation, the Minister will determine the remuneration to be paid (new subsection 180(1)). New subsection 180(2) provides that an Advisory Council member is not entitled to be paid if the member holds an office or appointment, or is otherwise employed, on a full time basis in the service or employment of either a:

•

State; or

•

corporation (a public statutory corporation) which is established for a public purpose by State law and which is not a tertiary education institution; or

•

a company limited by guarantee, where the interests and rights of members in or in relation to the company are beneficially owned by a State; or

•

a company in which all the stock or shares are beneficially owned by a State or by a public statutory corporation.

104. In a note to the section, a reference is made to subsection 7(11) of the Remuneration Tribunal Act, which provides that a person appointed to a public office on a part-time basis, is not entitled to remuneration if the member holds an office or appointment or is otherwise employed on a full-time basis by the Commonwealth or a Territory or certain other public entities.

105. New subsection 180(3) provides that an Advisory Council member is to be paid the allowances prescribed by the regulations. New subsection 180(4) provides that section 184 (but not including subsection 184(2)) has effect subject to the Remuneration Tribunal Act.

106. New section 181 provides for leave of absence for the Chair from the Advisory Council. New subsection 181(1) provides that the Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines. The Chair will have the discretion to grant leave of absence to any other Advisory Council member on the terms and conditions that the Chair determines (new subsection 181(2)).

107. New section 182 provides for the disclosure of interests to the Minister. It requires that before the Minister appoints a person as a member of the Advisory Council, the person must disclose to the Minister all interests (pecuniary or otherwise) that the person is aware of having in a matter of a kind likely to be considered by the Advisory Council. This measure is designed to maintain the integrity of the appointment process.

108. New section 183 provides for the disclosure of interests to the Advisory Council. In particular, subsection 183(1) provides that an Advisory Council member who has an interest (pecuniary or otherwise) in a matter being considered or to be considered by the Advisory Council is under obligation to disclose the nature of the interest to a meeting of the Advisory Council. Subsection 183(2) provides that the disclosure must be made as soon as possible after the Advisory Council member becomes aware of the relevant facts. The disclosure is required to be recorded in the minutes of the meeting (subsection 183(3)). Paragraphs 183(4)(a) and (b) further stipulate that unless the Advisory Council otherwise determines, the Advisory Council member must not be present during any deliberation by the Advisory Council on the matter and must not take part in any decision of the Advisory Council with respect to the matter.

109. With respect to the determination of the Advisory Council referred to in subsection 183(4), the Advisory Council member making the disclosure must not be present during any deliberation of the Advisory Council for the purpose of making the determination and must not take part in making the determination (new subsection 183(5)). A determination under subsection (4) must be recorded in the minutes of the meeting (new subsection 183(6)).

110. New section 184 provides that an Advisory Council member 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.

111. New section 184A sets out the procedure for resignation. New subsection 184A(1) provides that an Advisory Council member may resign from their appointment by giving their written resignation to the Minister. That resignation will take effect on the day it is received by the Minister, or, if a later day is specified in the resignation, on that later day.

112. New section 184B provides for the termination of appointments. In particular new subsection 184B(1) provides that the Minister may terminate the appointment of an Advisory Council member for misbehaviour, or if the Advisory Council member is unable to perform the duties of office due to physical and mental incapacity. Furthermore, the Minister may terminate the appointment of an Advisory Council member if a member becomes bankrupt, applies to take the benefit of any law for the relief of bankruptcy or insolvent debtors, compounds with member's creditors or makes an assignment of member's remuneration for the benefit of member's creditors (new subparagraphs 184(2)(a)(i)-(iv)). The Minister may also terminate the appointment of an Advisory Council member if they are absent from three consecutive meetings of the Advisory Council (except in circumstances where they are on a leave of absence) (new paragraph 184(2)(b)), or where the member fails, without reasonable excuse, to comply with section 182 or 183 (which deal with disclosure of interests) (new paragraph 184(2)(c)).

Subdivision C - Procedures of the Advisory Council

113. Item 41 also inserts Subdivision C of Division 2 of Part 7 into the NVETR Act. Subdivision C sets out procedural arrangements for how the Advisory Council will operate. The Council is to control its own procedures provided that it complies with those specified in the legislation

114. New section 184C sets out the times and places for meetings of the Advisory Council. It specifies in subsection 184C(1) that the Chair of the Advisory Council must ensure that such meetings as are necessary for the efficient performance of the Advisory Council's functions are held. Subsection 184C(2) provides that the meetings are to be held at such times and places as the Chair decides.

115. New section 184D sets out the provisions governing the conduct of meetings. New subsections 184D(1) and (2) provide that the Chair must preside at all meetings at which the Chair is present and if the Chair is not present, a person who is appointed by the Chair must be present and preside. New subsections 184D(3) and (4) relate to the quorum requirements for meetings of the Advisory Council. New subsection 184D(3) provides that a quorum is constituted by half of the Advisory Council members who are holding office. New subsection 184D(4) provides that if an Advisory Council member is required by operation of section 183 to not be present during deliberations (i.e. because they have declared a pecuniary or other interest in a matter being, or about to be considered by the Advisory Council) and when that Advisory Council member leaves the meeting there is no longer a quorum present, the remaining Advisory Council members at the meeting are deemed to constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter. New subsection 184(5) concerns the rules of procedure for the Advisory Council and provides that the Advisory Council may, subject to this Division, regulate proceedings at its meetings as it considers appropriate. A note at the end of this subsection provides that section 33B of the Acts Interpretations Act contains further information about the ways in which the Advisory Council members may participate in meetings.

116. New section 184E sets out the voting requirements for meetings. New subsection 184E(1) provides that a question arising at a meeting of the Advisory Council is to be determined by a majority of the votes of the Advisory Council members present and voting. New subsection 184E(2) provides that the person presiding at a meeting of the Advisory Council has a deliberative vote and, if the votes are equal, they will have a casting vote.

117. New section 184F provides that the Advisory Council must keep minutes of its meetings.

118. New section 184G sets out the requirements that must be met for the Advisory Council to make decisions without meetings. New subsection 184(1) provides that the Advisory Council is taken to have made a decision at a meeting if, in the absence of a meeting, a majority of the Advisory Council members entitled to vote on the proposed decision indicate agreement with the decision (paragraph (a)), the agreement is indicated in accordance with the method determined by the Chair under subsection (2) (paragraph (b)), and all Advisory Council members were informed of the proposed decision or reasonable efforts were made to inform all of the Advisory Council members of the proposed decision (paragraph (c)).

119. New subsection 184(2) provides that subsection 184(1) applies only if the Chair determines it applies and the Chair has also determined the method by which the Advisory Council members are to indicate agreement with proposed decisions.

120. New subsection 184(3) provides that, for the purposes of paragraph 184(1)(a), an Advisory Council member is not entitled to vote on a proposed decision if they would otherwise have not been entitled to vote if the matter had been considered at a meeting of the Advisory Council. New subsection 184(4) requires the Advisory Council to keep a record of decisions made in accordance with 184G.

Item 42 - Paragraphs 201(2)(a) and (b)

Item 43 - Subsection 201(4)

Item 44 - Subsection 201(5)

Item 45 - Subsection 201(5)

121. Item 42 amends paragraphs 201(2)(a) and (b) of the NVETR Act which specifies who from the National VET Regulator may reconsider a decision. The amendment will remove the reference to the 'Commissioner' and substitute with a reference to the 'National VET Regulator'. The amendments in this item 42 relate to amendments in items 29 and 41 which abolish the position of Commissioner.

122. Item 43 makes a further minor amendment in subsection 201(4) to refer to 'the Regulator's decision' rather than 'its decision'. Items 44 and 45 make minor amendments in subsection 201(5) to refer to 'the decision' rather than 'its decision' at the first occurring instance and to 'the Regulator's reasons for the decision' and remove reference to 'its reasons for decision'. These changes are to ensure section 201 correctly references the National VET Regulator, now that the Regulator will be a statutory office holder and not a body.

Item 46 - Subsection 202(1)

Item 47 - Subsection 202(2)

Item 48 - Subsection 202(2)

123. Section 202 of the NVETR Act concerns the deadline for reconsideration of a decision. Minor consequential amendments are made by items 46, 47 and 48 to change references to 'its decision' to 'the Regulator's decision' (in subsections 202(1) and (2)), and to remove the words 'it has not' and substitute with words 'the Regulator has not' (in subsection 202(2)). These changes to language are to ensure section 202 correctly references the National VET Regulator, now that the Regulator will be a statutory office holder and not a body.

Item 49 - Subparagraphs 204(b)(i) and (ii)

Item 50 - Subparagraph 204(b)(iv)

124. Section 204 of the NVETR Act concerns the unauthorised disclosure of VET information. Item 49 repeals subparagraphs 204(b)(i) and (ii) which provide that 'a Commissioner' and the 'Chief Executive Officer' are entrusted persons under subsection 204(b). Rather, item 49 will insert in its place, 'the National VET Regulator'. These changes to language are to ensure section 204 correctly references the National VET Regulator, now that the Regulator will be a statutory office holder and not a body.

125. Item 50 will change a reference in subparagraph 204(b)(iv), from a consultant engaged under section 184, to one engaged under section 172.

Item 51 - Subsection 214(2)

126. Subsection 214 of the NVETR Act deals with the National VET Regulator's management of VET student records. Item 51 contains a minor amendment to subsection 214(2) which provides that if the National VET Regulator considers it appropriate to do so, the Regulator may provide a VET student record to a RTO on its own initiative. The words 'its own initiative' will be changed to 'the Regulator's own initiative' by item 51. These changes to language are to ensure the provision correctly references the National VET Regulator, now that the Regulator will be a statutory office holder and not a body.

Item 52 - Subsection 215(1)

Item 53 - Paragraph 215(1)(a)

127. Items 52 and 53 amend section 215 of the NVETR Act which relates to annual reports. Item 52 amends subsection 215(1) to provide that it is the National VET Regulator and not the Chief Executive Officer that prepares the annual report and provides it to the Minister. Item 53 removes the reference to 'National VET' in paragraph 215(a) so that the paragraph refers only to the 'Regulator'.

Item 54 - Sections 218, 219 and 219A

128. Item 54 amends sections 218, 219 and 219A to omit references to the 'Chief Executive Officer' and substitute with references to the 'National VET Regulator'.

Item 55 - Section 222

129. Item 55 removes reference to the Chief Executive Officer in section 222 of the NVETR Act which deals with the compliance with plans.

Item 56 - Section 223

130. Item 56 repeals and substitutes section 223 - Delegation by the Minister. New section 223 provides that the Minister may, by writing, delegate all or any of the Minister's functions and powers under the NVETR Act to the National VET Regulator or the Secretary, except for the powers under the following sections:

•

Section 91 - Minister may nominate a Judge of the Federal Circuit Court to be an issuing officer for the purposes of this Act;

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Section 160 - Minister may, by legislative instrument, give a direction to the National VET Regulator;

•

Subsection 162(3) - Minister to be satisfied that a person being appointed as the National VET Regulator has appropriate qualifications, knowledge or experience;

•

Section 163 - Minister may by instrument appoint a person to act as the National VET Regulator;

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Section 169 - Minister must terminate the appointment of the National VET Regulator if the Regulator becomes an executive officer of a RTO;

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Section 176 - Minister may, by legislative instrument, give directions to the Advisory Council about the performance of the Advisory Council's function;

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Section 178 - Appointment of Advisory Council members;

•

Section 184B - Termination of Advisory Council members.

Part 2 - Consequential Amendments

Educational Services for Overseas Students Act 2000

Item 61 - Subsection 6A(1) (table item 2, column headed "a person is an authorised officer of the agency if:", paragraph (a))

Item 62 - Subsection 6A(1) (table item 2, column headed "a person is an authorised officer of the agency if:", paragraph (b))

131. Section 6A of the ESOS Act sets out the meaning of an authorised officer under that Act. Items 61 and 62 amend table item 2, which sets out who is an authorised officer if the ESOS agency for a registered provider is the National VET Regulator. Specifically, items 61 and 62 will operate to specify that the authorised officer is 'the National VET Regulator' or 'an authorised officer (within the meaning of the NVETR Act)'.

Item 63 - Subsection 171A(2)

132. Item 63 repeals and substitutes subsection 171A(2) of the ESOS Act which relates to sub-delegation by the National VET Regulator. New subsection 171A(2) will provide that where the Secretary delegates a function or power under subsection 170(3) of the ESOS Act to the National VET Regulator, the Regulator may, in writing, sub-delegate that function or power to a member of the staff of the Regulator (within the meaning of the NVETR Act) who is either an SES employee, or acting SES employee or holds or performs the duties of an Executive Level 1 or 2 position or an equivalent position. A note provides that the expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act.

Higher Education Support Act 2003

Item 64 - Paragraphs 39EC(a), 39FB(1)(f) and 39FD(1)(e) of Schedule 1A

133. Item 64 makes consequential amendments to paragraphs 39EC(a), 39FB(1)(f) and 39FD(1)(e) of Schedule 1A to HESA to remove reference to 'each *NVETR Commissioner' and substitute with 'the *National VET Regulator'.

Item 65 - Subclauses 39GA(2) and 39GC(2) of Schedule 1A

134. Item 65 makes consequential amendments to subclauses 39GA(2) and 32GC(2) of Schedule 1A to HESA to omit 'A *NVETR Commissioner' and substitute with reference to 'The *National VET Regulator".

Item 66 - Subclause 1(1) of Schedule 1 (definition of NVETR Commissioner )

135. Item 66 repeals the definition of NVETR Commissioner in subclause 1(1) of Schedule 1 to HESA.

National Vocational Education and Training Regulator (Charges) Act 2012

Item 67 - Paragraph 6B(2)(a)

136. Item 67 makes a consequential amendment to paragraph 6B(2)(a) of the NVETR (Charges) Act to omit reference to 'it's functions' and substitute with reference to 'the Regulator's functions.'

VET Student Loans Act 2016

Item 68 - Section 6 (definition of NVETR Commissioner )

137. Item 68 repeals the definition of NVETR Commissioner in the VSL Act.

Item 69 - Paragraphs 82(3)(e) and 83(2)(e)

Item 70 - Subparagraph 85(2)(b)(i)

Item 71 - Subsections 88(2) and 89(2)

138. Items 69, 70, 71 remove the reference to 'each NVETR Commissioner' in paragraphs 82(3)(e), 83(2)(e), subparagraph 85(2)(b)(i) and subsections 88(2) and 89(2) of the VSL Act, and substitute with reference to the 'National VET Regulator'.

Part 3 - Amendments contingent on the National Vocational Education and Training Regulator Amendment Act 2020

National Vocational Education and Training Regulator Act 2011

Item 72 - Subsection 47C(2)

Item 73 - Subsection 155(1A)

139. The following amendments amend the NVETR Act following on from amendments made by the National Education and Training Regulator Amendment Act 2020.

140. Item 72 amends subsection 47C(2) of the NVETR Act to make specific reference to 'the Regulator's website' in the context of the National VET Regulator being required to publish a general direction. Item 73 repeals subsection 155(1A) which provides that that the National VET Regulator may also be known as the Australian Skills Quality Authority.