House of Representatives

Explanatory Memorandum

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

Schedule 3 - Transitional and application provisions

167. Schedule 3 of the Bill contains amendments to the 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.

National Vocational Education and Training Regulator (Transitional Provisions) Act 2011

Item 1 - In the appropriate position

168. Item 1 of Schedule 3 amends the NVETR Transitional Act to insert Schedule 5 - Transitional provisions relating to the National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Act 2020.

169. Clause 1 of new Schedule 5 of the NVETR Transitional Act sets out the following definitions:

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Amending Act means the National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Act 2020.

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Chief Commissioner has the same meaning as in the Principal Act immediately before the later commencement time.

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Chief Executive Officer has the same meaning as in the Principal Act immediately before the later commencement time.

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Commissioner has the same meaning as in the Principal Act immediately before the later commencement time.

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early commencement time means the start of the day on which Schedule 2 to the Amending Act commences.

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later commencement time means the time at which Part 1 of Schedule 1 to the Amending Act commences.

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National VET Regulator has the same meaning as in the Principal Act.

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Principal Act means the National Vocational Education and Training Regulator Act 2011.

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VET Information has the same meaning as in the Principal Act.

170. Clause 2 of new Schedule 5 sets out provisions relating to 'things done by, or in relation to, a Commissioner or the Chief Executive Officer'. Subclause 2(1) provides that if a thing was done by, or in relation to, a Commissioner (including the Chief Commissioner) or the Chief Executive Officer under a law of the Commonwealth before the later commencement time, then it is taken, at and after that time, to have been done by, or in relation to, the National VET Regulator. Subclause 2(2) provides that the Minister may, by legislative instrument, determine that subclause (1) does not apply in relation to a specified thing done by, or in relation to, a Commissioner (including the Chief Commissioner) or the Chief Executive Officer. Subclause 2(3) provides that to avoid doubt, doing a thing includes making an instrument. Further, nothing in this clause produces the result that the appointment of a person as a Commissioner (including the Chief Commissioner) before the later commencement time has effect, at or after that time, as if it were an appointment of the person as the National VET Regulator (subclause 2(4)).

171. The purpose of clause 2 is to provide that things done by a Commissioner or CEO before the later commencement date are deemed to be done by the National VET Regulator, excepting where otherwise determined by the Minister. This ensures the validity of things done before the later commencement date.

172. Clause 3 of new Schedule 5 sets out the effect of things done by the National VET Regulator before the commencement of the Amending Act. Specifically, it provides that a thing done by, or in relation to, the National VET Regulator under a law of the Commonwealth before the later commencement time is not affected by the amendments made by Schedule 1 to the Amending Act.

173. The purpose of this clause is to ensure the validity of things done by the National VET Regulator is not affected by amendments to Schedule 1 of the Amending Act.

174. Clause 4 of new Schedule 5 provides that a consultant engaged under section 184 of the NVETR Act immediately before the later commencement time is, at and after that time, taken to be engaged under section 172 of that Act. This has the effect of specifying the terms of engagement for consultants engaged prior to the later commencement date.

175. Clause 5 of new Schedule 5 is an application provision in relation to the unauthorised disclosure of VET information. Specifically, it provides that despite the amendment of section 204 of the NVETR Act by Schedule 1 to the Amending Act, that section, as in force immediately before the later commencement time, continues to apply at and after that time in relation to a person who was any of the following at any time before the later commencement time: a Commissioner, the Chief Executive Officer or a consultant engaged under section 184 of the NVETR Act.

176. This has the effect of providing that a Commissioner, Chief Executive Officer or consultant engaged under the Act, or appointed before the later commencement date, continue to be considered entrusted persons for the purposes of section 204 of the NVETR Act and are subject to the protections if their disclosures fall under paragraphs 204(c)(i) or (ii).

177. Clause 6 of new Schedule 5 provides for protections from civil actions. In particular it provides that despite the amendment of section 233 of the NVETR Act by Schedule 1 to the Amending Act, that section as in force immediately before the later commencement time, continues to apply at and after that time in relation to a person who was a Commissioner at any time before the later commencement time.

178. Clause 7 of new Schedule 5 sets out transitional arrangements for proceedings that were started by the National VET Regulator under the name, the 'Australian Skills Quality Authority', before the commencement of the changes in Schedule 1 of the Bill.

179. New clause 7 provides that after the relevant provisions of the Bill commence, then the National VET Regulator will continue to be the party to the proceedings, but the proceedings will be in the name of the National Vocational Education and Training Regulator. This change reflects that the National VET Regulator will be, after commencement of the Bill, no longer called the Australian Skills Quality Authority. This clause ensures that legal proceedings that started before the changes in Schedule 1 of the Bill, continue to be in the correct name after commencement of the governance amendments in Schedule 1 of the Bill.

180. If a decision is made that the party to the proceedings should be under another name, that is, the Chief Executive Officer of the Australian Skills Quality Authority, subclause 7(2) allows the Minister to determine that the proceedings are in a different name.

181. Clause 8 of new Schedule 5 provides that the disclosure of information by NCVER under section 210A (as inserted by Schedule 2 to the Amending Act) that occurs at, or after the early commencement time, is authorised where that information was collected by NCVER before that time.