National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Act 2020 (77 of 2020)

Schedule 1   Governance arrangements

Part 1   Main amendments

National Vocational Education and Training Regulator Act 2011

41   Divisions 2 to 6 of Part 7

Repeal the Divisions, substitute:

Division 2 - National Vocational Education and Training Regulator Advisory Council

Subdivision A - Establishment and function of the Advisory Council

174 Establishment

The National Vocational Education and Training Regulator Advisory Council (the Advisory Council ) is established by this section.

175 Function

(1) The function of the Advisory Council is to provide advice to the National VET Regulator on the Regulator's functions.

(2) However, the Advisory Council's function does not include giving advice 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; or

(e) the registration under the Education Services for Overseas Students Act 2000 of a particular provider as a registered provider; or

(f) a particular registered provider.

Note: Paragraphs (e) and (f) - registered provider is defined, see section 3.

(3) The Advisory Council may perform its function:

(a) on the Advisory Council's own initiative; or

(b) at the request of the National VET Regulator or the Minister.

176 Minister may give directions to the Advisory Council

(1) The Minister may, by legislative instrument, give written directions to the Advisory Council about the performance of the Advisory Council's function.

Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).

(2) The Advisory Council must comply with a direction under subsection (1).

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

177 Membership

The Advisory Council consists of the following members:

(a) a Chair;

(b) not more than 9 other members.

178 Appointment

(1) Each Advisory Council member is to be appointed by the Minister by written instrument, on a part-time basis.

Note: An Advisory Council member may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(2) Before appointing an Advisory Council member, the Minister must consult with the Ministerial Council.

(3) An Advisory Council member holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

(4) 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:

(a) delivering training;

(b) operating or managing registered training organisations;

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

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

(e) advocating on behalf of VET students;

(f) communicating and engaging with industry and other stakeholders;

(g) any other appropriate field of expertise.

179 Acting appointments

Chair

(1) The Minister may, by written instrument, appoint an Advisory Council member to act as the Chair:

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

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

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

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

Other Advisory Council members

(2) The Minister may, by written instrument, appoint a person to act as an Advisory Council member (other than the Chair):

(a) during a vacancy in the office of an Advisory Council member (other than the Chair), whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when an Advisory Council member (other than the Chair):

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

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

Eligibility

(3) A person is not eligible for appointment under subsection (2) unless the person is eligible for appointment as an Advisory Council member.

Note 1: For eligibility to be appointed as an Advisory Council member, see subsection 178(4).

Note 2: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

180 Remuneration

(1) An Advisory Council member 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 member is to be paid the remuneration that is determined by the Minister.

(2) However, an Advisory Council member is not entitled to be paid remuneration if the member holds an office or appointment, or is otherwise employed, on a full-time basis in the service or employment of:

(a) a State; or

(b) a corporation (a public statutory corporation) that:

(i) is established for a public purpose by a law of a State; and

(ii) is not a tertiary education institution; or

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

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

Note: A similar rule applies to an Advisory Council member who has a similar relationship with the Commonwealth or a Territory: see subsection 7(11) of the Remuneration Tribunal Act 1973.

(3) An Advisory Council member is to be paid the allowances that are prescribed by the regulations.

(4) This section (other than subsection (2)) has effect subject to the Remuneration Tribunal Act 1973.

181 Leave of absence

(1) The Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines.

(2) The Chair may grant leave of absence to any other Advisory Council member on the terms and conditions that the Chair determines.

182 Disclosure of interests to the Minister

Before the Minister appoints a person as an Advisory Council member, 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.

183 Disclosure of interests to the Advisory Council

(1) An Advisory Council member who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Advisory Council must disclose the nature of the interest to a meeting of the Advisory Council.

(2) The disclosure must be made as soon as possible after the relevant facts have come to the Advisory Council member's knowledge.

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

(4) Unless the Advisory Council otherwise determines, the Advisory Council member:

(a) must not be present during any deliberation by the Advisory Council on the matter; and

(b) must not take part in any decision of the Advisory Council with respect to the matter.

(5) For the purposes of making a determination under subsection (4), the Advisory Council member:

(a) must not be present during any deliberation of the Advisory Council 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 of the Advisory Council.

184 Other terms and conditions

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.

184A Resignation

(1) An Advisory Council member may resign the member's appointment by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

184B Termination of appointment

(1) The Minister may terminate the appointment of an Advisory Council member:

(a) for misbehaviour; or

(b) if the Advisory Council member is unable to perform the duties of member's office because of physical or mental incapacity.

(2) The Minister may terminate the appointment of an Advisory Council member if:

(a) the Advisory Council member:

(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 member's creditors; or

(iv) makes an assignment of member's remuneration for the benefit of member's creditors; or

(b) the Advisory Council member is absent, except on leave of absence, from 3 consecutive meetings of the Advisory Council; or

(c) the Advisory Council member fails, without reasonable excuse, to comply with section 182 or 183 (which deal with disclosure of interests).

Subdivision C - Procedures of the Advisory Council

184C Times and places of meetings

(1) The Chair must ensure that such meetings as are necessary for the efficient performance of the Advisory Council's function are held.

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

184D Conduct of meetings

Presiding at meetings

(1) The Chair must preside at all meetings at which the Chair is present.

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

Quorum

(3) At a meeting of the Advisory Council, a quorum is constituted by half of the Advisory Council members for the time being holding office.

(4) However, if:

(a) an Advisory Council member is required by section 183 not to be present during the deliberations, or to take part in any decision, of the Advisory Council with respect to a particular matter; and

(b) when the Advisory Council member leaves the meeting concerned there is no longer a quorum present;

the remaining Advisory Council at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.

Rules of procedure

(5) The Advisory Council may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Advisory Council members may participate in meetings.

184E Voting at meetings

(1) 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.

(2) The person presiding at a meeting of the Advisory Council has a deliberative vote and, if the votes are equal, a casting vote.

184F Minutes

The Advisory Council must keep minutes of its meetings.

184G Decisions without meetings

(1) The Advisory Council is taken to have made a decision at a meeting if:

(a) without meeting, a majority of the Advisory Council members entitled to vote on the proposed decision indicate agreement with the decision; and

(b) that agreement is indicated in accordance with the method determined by the Chair under subsection (2); and

(c) all the Advisory Council members were informed of the proposed decision, or reasonable efforts were made to inform all the Advisory Council members of the proposed decision.

(2) Subsection (1) applies only if the Chair:

(a) has determined that it applies; and

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

(3) For the purposes of paragraph (1)(a), an Advisory Council member is not entitled to vote on a proposed decision if the Advisory Council member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Advisory Council.

(4) The Advisory Council must keep a record of decisions made in accordance with this section.