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This is a Bill, not an Act. For current law, see the Acts databases.
NATIONAL VOCATIONAL EDUCATION AND TRAINING REGULATOR BILL 2010 [2011]
2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
National Vocational Education and
Training Regulator Bill 2010
No. , 2010
(Education, Employment and Workplace Relations)
A Bill for an Act to establish the National
Vocational Education and Training Regulator, and
for related purposes
i National Vocational Education and Training Regulator Bill 2010 No. , 2010
Contents
Part 1--Introduction
1
Division 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
Division 2--Definitions
3
3 Definitions
.........................................................................................
3
Division 3--Constitutional basis for this Act and the
Transitional Act
11
4
Constitutional basis for this Act and the Transitional Act ............... 11
5 Meaning
of
referring State .............................................................. 12
6 Meaning
of
referred VET matters .................................................... 15
7 Meaning
of
non-referring State ....................................................... 16
8
When application of this Act takes effect ........................................ 17
9
Immunity from State and Territory laws .......................................... 18
10
When this Act does not apply--exclusion by a law of a
referring State or a Territory ............................................................ 19
11
Addressing inconsistency between Commonwealth and State
and Territory laws ............................................................................ 20
Division 4--General application of this Act and the Transitional
Act
21
12
Acts bind the Crown ........................................................................ 21
13
Acts not to apply so as to exceed Commonwealth power ................ 21
14
Extension of Acts to external Territories ......................................... 22
15 Extra-territorial application .............................................................. 22
Part 2--Registration
23
Division 1--Registering as an NVR registered training
organisation
23
Subdivision A--Applying for registration
23
16 Application
for
registration .............................................................. 23
17 Registration
......................................................................................
23
18
National VET Regulator to notify applicant of decision on
registration ....................................................................................... 24
19
National VET Regulator to issue certificate of registration ............. 25
20
Commencement and duration of registration ................................... 25
Subdivision B--Conditions of registration
26
21 Complying
with
conditions .............................................................. 26
National Vocational Education and Training Regulator Bill 2010 No. , 2010 ii
22
Condition--compliance with the VET Quality Framework ............ 26
23 Condition--satisfying
Fit
and
Proper Person Requirements ........... 26
24
Condition--satisfying the Financial Viability Risk
Assessment Requirements ............................................................... 26
25
Condition--notifying National VET Regulator of material
changes ............................................................................................ 26
26 Condition--other
information must be provided ............................. 27
27 Condition--cooperation ................................................................... 27
28
Condition--compliance with directions given by the
National VET Regulator .................................................................. 27
29 Other
conditions
...............................................................................
28
30
National VET Regulator to notify NVR registered training
organisation of change in conditions of registration ........................ 28
Subdivision C--Renewing registration
28
31
Renewal of registration .................................................................... 28
Division 2--Changing the scope of registration
30
32
Application for change of scope of registration ............................... 30
33
Change of scope of registration ....................................................... 30
34
National VET Regulator to notify applicant of decision on
change of scope of registration ........................................................ 31
Division 3--Ensuring compliance with the VET Quality
Framework
32
Subdivision A--Audits
32
35 Audits
...............................................................................................
32
Subdivision B--Administrative sanctions
32
36 Sanctions
..........................................................................................
32
37 Natural
justice
requirements ............................................................ 33
38 Suspension
.......................................................................................
34
39 Cancellation
.....................................................................................
34
40
Other enforcement action ................................................................. 35
Division 4--Requests for reassessment
36
41 Requests
for
reassessment
...............................................................
36
Division 5--Withdrawing registration
37
42 Withdrawing
registration ................................................................. 37
Part 3--Accreditation of courses
38
Division 1--Applying for accreditation
38
43 Application
for accreditation ........................................................... 38
44
Accreditation of course .................................................................... 38
iii National Vocational Education and Training Regulator Bill 2010 No. , 2010
45
National VET Regulator to notify applicant of decision on
accreditation of course ..................................................................... 39
46
Commencement and duration of accreditation ................................ 39
Division 2--Conditions of accreditation
40
47 Complying
with
conditions .............................................................. 40
48 Conditions
........................................................................................
40
49
National VET Regulator to notify relevant person of change
in conditions of accreditation ........................................................... 40
Division 3--Renewing accreditation
41
50
Renewal of accreditation ................................................................. 41
Division 4--Amending VET accredited courses
42
51 Amending
VET
accredited courses ................................................. 42
Division 5--Cancelling accreditation
43
52 Cancelling
accreditation .................................................................. 43
53
National VET Regulator to notify relevant persons of
proposed cancellation ...................................................................... 43
54 When
cancellation
takes effect ........................................................ 44
Part 4--National VET Regulator's power to issue and cancel
VET qualifications etc.
45
Division 1--Issue of VET qualifications and VET statements of
attainment
45
55
National VET Regulator may issue VET qualifications and
VET statements of attainment .......................................................... 45
Division 2--Cancellation of VET qualifications and VET
statements of attainment
46
Subdivision A--Cancellation
46
56
National VET Regulator may cancel VET qualifications and
VET statements of attainment .......................................................... 46
57
National VET Regulator to notify person concerned of
proposed cancellation ...................................................................... 47
58
National VET Regulator's consideration of response ...................... 48
59 When
cancellation
takes effect ........................................................ 49
Subdivision B--Civil penalties
49
60
Civil penalty--failure to return VET qualification or VET
statement of attainment .................................................................... 49
61
Civil penalty--use of cancelled VET qualification or VET
statement of attainment .................................................................... 50
National Vocational Education and Training Regulator Bill 2010 No. , 2010 iv
Part 5--Investigative powers
52
Division 1--Requiring people to give information and produce
documents or things
52
Subdivision A--Requests by National VET Regulator
52
62
Request to person who is, or was, connected with a
registered training organisation ........................................................ 52
63
National VET Regulator may retain documents and things ............. 53
Subdivision B--Offence and related provisions
53
64
Failure to comply with National VET Regulator's request .............. 53
65 Self-incrimination etc. ..................................................................... 53
Division 2--Searches of premises
55
Subdivision A--Exercising monitoring or enforcement powers
55
66
Authorised officer may enter premises by consent or under a
warrant ............................................................................................. 55
67
Monitoring powers of authorised officers ........................................ 55
68 Enforcement
powers
of
authorised officers ..................................... 58
69
Persons assisting authorised officers ............................................... 60
70
Use of force in executing a warrant ................................................. 60
71
Authorised officer may ask questions and seek production of
documents ........................................................................................ 61
Subdivision B--Obligations and incidental powers of authorised
officers
62
72 Consent
............................................................................................
62
73
Announcement before entry under warrant ..................................... 62
74
Authorised officer to be in possession of warrant ............................ 63
75
Details of warrant etc. to be given to occupier................................. 63
76
Expert assistance to operate electronic equipment ........................... 64
77
Compensation for damage to electronic equipment ......................... 66
Subdivision C--Occupier's rights and responsibilities
67
78
Occupier entitled to observe execution of warrant .......................... 67
79
Occupier to provide authorised officer with facilities and
assistance ......................................................................................... 67
Subdivision D--General provisions relating to seizure
67
80
Copies of seized things to be provided ............................................ 67
81
Receipts for things seized ................................................................ 68
82
Return of seized things .................................................................... 68
83
Magistrate may permit a thing to be retained .................................. 69
84 Disposal
of
things ............................................................................ 70
Subdivision E--Warrants
70
v National Vocational Education and Training Regulator Bill 2010 No. , 2010
85 Monitoring
warrants
........................................................................
70
86
Issue of enforcement warrants ......................................................... 72
87
Enforcement warrants by telephone, fax etc. ................................... 73
88
Offence relating to warrants by telephone, fax etc. ......................... 75
Subdivision F--Appointment of authorised officers and issue of
identity cards
75
89
Appointment of authorised officers ................................................. 75
90 Identity
cards
...................................................................................
76
Subdivision G--Powers of magistrates
77
91 Federal
Magistrates--consent to nomination .................................. 77
92 Magistrates--personal capacity ....................................................... 77
Part 6--Enforcement
78
Division 1--Offences and civil penalty provisions
78
Subdivision A--Conduct by NVR registered training
organisations
78
93
Offence--providing all or part of VET course outside scope
of registration ................................................................................... 78
94
Civil penalty--providing all or part of VET course outside
scope of registration ......................................................................... 78
95
Offence--issuing VET qualification outside scope of
registration ....................................................................................... 78
96
Civil penalty--issuing VET qualification outside scope of
registration ....................................................................................... 79
97 Offence--issuing
VET
statement of attainment outside scope
of registration ................................................................................... 79
98
Civil penalty--issuing VET statement of attainment outside
scope of registration ......................................................................... 79
99
Offence--advertising all or part of VET course outside
scope of registration ......................................................................... 79
100
Civil penalty--advertising all or part of VET course outside
scope of registration ......................................................................... 80
101
Offence--certain conduct prohibited while scope of
registration suspended ...................................................................... 80
102
Civil penalty--certain conduct prohibited while scope of
registration suspended ...................................................................... 81
103 Offence--issuing
VET
qualification without providing
adequate assessment ........................................................................ 81
104
Civil penalty--issuing VET qualification without providing
adequate assessment ........................................................................ 82
105 Offence--issuing
VET
statement of attainment without
providing adequate assessment ........................................................ 83
National Vocational Education and Training Regulator Bill 2010 No. , 2010 vi
106
Civil penalty--issuing VET statement of attainment without
providing adequate assessment ........................................................ 83
107 Offence--issuing
VET
qualification without ensuring
adequate assessment ........................................................................ 84
108
Civil penalty--issuing VET qualification without ensuring
adequate assessment ........................................................................ 85
109 Offence--issuing
VET
statement of attainment without
ensuring adequate assessment .......................................................... 85
110
Civil penalty--issuing VET statement of attainment without
ensuring adequate assessment .......................................................... 85
111 Civil
penalty--breach
of
condition of registration .......................... 86
112
Civil penalty--failure to return certificate of registration ............... 86
113 Geographical
jurisdiction
.................................................................
87
Subdivision B--Conduct that is prohibited if not an NVR
registered training organisation
87
114
Offence--falsely claiming to be an NVR registered training
organisation...................................................................................... 87
115 Civil
penalty--falsely
claiming to be an NVR registered
training organisation ........................................................................ 87
116
Offence--providing, or offering to provide, all or part of a
VET course without registration ...................................................... 87
117
Civil penalty--providing, or offering to provide, all or part
of a VET course without registration ............................................... 88
118 Offence--issuing
VET qualification ............................................... 88
119 Civil
penalty--issuing
VET qualification ........................................ 89
120 Offence--issuing
VET
statement of attainment .............................. 89
121
Civil penalty--issuing VET statement of attainment ...................... 89
Subdivision C--Other prohibited conduct
89
122
Offence--making false or misleading representation in
advertisement ................................................................................... 89
123
Civil penalty--making false or misleading representation in
advertisement ................................................................................... 90
124
Offence--making false or misleading representation relating
to VET course or VET qualification ................................................ 90
125
Civil penalty--making false or misleading representation
relating to VET course or VET qualification ................................... 91
126
Offence--purporting to issue VET qualification ............................. 91
127
Civil penalty--purporting to issue VET qualification ..................... 91
128
Offence--purporting to issue VET statement of attainment ............ 92
129 Civil
penalty--purporting
to issue VET statement of
attainment ........................................................................................ 92
130 Civil
penalty--breach
of
condition of accreditation ........................ 92
vii National Vocational Education and Training Regulator Bill 2010 No. , 2010
131
Civil penalty--using a bogus VET qualification or VET
statement of attainment .................................................................... 92
132 Geographical
jurisdiction
.................................................................
93
Subdivision D--Executive officers
93
133
Liability of executive officer of registered training
organisation...................................................................................... 93
134
Reasonable steps to prevent offence or contravention ..................... 94
Subdivision E--Partnerships
95
135
Liability of partners in partnerships ................................................. 95
Subdivision F--Unincorporated associations
96
136
Liability of members of unincorporated associations ...................... 96
Division 2--Civil penalty proceedings
98
Subdivision A--Obtaining an order for a civil penalty
98
137
Federal Court or Federal Magistrates Court may impose
pecuniary penalty ............................................................................. 98
138
Involvement in contravening civil penalty provision ....................... 99
139
Recovery of a pecuniary penalty ...................................................... 99
140
Gathering information for application for pecuniary penalty .......... 99
141
Continuing and multiple contraventions of civil penalty
provisions ....................................................................................... 100
Subdivision B--Civil penalty proceedings and criminal
proceedings
101
142
Civil proceedings after criminal proceedings ................................ 101
143 Criminal
proceedings
during civil proceedings ............................. 101
144 Criminal
proceedings
after civil proceedings ................................ 102
145
Evidence given in proceedings for civil penalty not
admissible in criminal proceedings ................................................ 102
Division 3--Enforceable undertakings
103
146 Acceptance
of
undertakings ........................................................... 103
147 Enforcement
of
undertakings ......................................................... 103
Division 4--Infringement notices
104
148
Infringement notices in respect of offences ................................... 104
149
Infringement notices in respect of civil penalty provisions ........... 104
Division 5--Injunctions
105
150 Injunctions
.....................................................................................
105
151 Interim
injunctions
.........................................................................
105
152 Discharge
etc.
of injunctions.......................................................... 105
153
Certain limits on granting injunctions not to apply ........................ 106
National Vocational Education and Training Regulator Bill 2010 No. , 2010 viii
154
Other powers of the Federal Court or Federal Magistrates
Court unaffected ............................................................................ 106
Part 7--National Vocational Education and Training
Regulator
108
Division 1--Establishment, functions and powers of Regulator
108
155 Establishment
.................................................................................
108
156 Constitution....................................................................................
108
157
Functions of the National VET Regulator ..................................... 108
158
Financial Viability Risk Assessment Requirements ...................... 111
159
Independence of the National VET Regulator ............................... 111
160
Minister may give directions to the National VET Regulator ....... 111
161
National VET Regulator has privileges and immunities of
the Crown ...................................................................................... 112
Division 2--Appointment of Commissioners
113
162 Appointment
..................................................................................
113
163
Term of appointment ..................................................................... 113
164 Remuneration
and
allowances ....................................................... 113
165
Leave of absence ............................................................................ 114
166
Outside employment ...................................................................... 114
167
Disclosure of interests to the Minister ........................................... 114
168 Other
terms
and
conditions ............................................................ 114
169 Resignation
....................................................................................
114
170 Termination
of
appointment .......................................................... 115
171 Acting
Chief
Commissioner .......................................................... 115
172 Acting
Commissioners
...................................................................
116
Division 3--National VET Regulator procedures
118
Subdivision A--Meetings
118
173
Times and places of meetings ........................................................ 118
174
Conduct of meetings ...................................................................... 118
175 Disclosure
of
interests .................................................................... 119
Subdivision B--Decisions without meetings
120
176 Decisions
without meetings ........................................................... 120
177 Record
of
decisions
........................................................................
120
Division 4--Ensuring compliance with the Standards for VET
Regulators
121
178
National VET Regulator to cooperate with assessments ............... 121
Division 5--Chief Executive Officer
122
179
Chief Executive Officer ................................................................. 122
ix National Vocational Education and Training Regulator Bill 2010 No. , 2010
180
Functions and powers of the Chief Executive Officer ................... 122
181
Minister may give directions to Chief Executive Officer .............. 122
Division 6--Staff and consultants
123
182 Staff
...............................................................................................
123
183
Staff to be made available to the National VET Regulator ............ 123
184 Consultants
....................................................................................
124
Part 8--Commonwealth-State arrangements
125
Division 1--Role of Ministerial Council
125
Subdivision A--NVR registered training organisations
125
185
Standards for NVR Registered Training Organisations ................. 125
186
Fit and Proper Person Requirements .............................................. 125
187 Data
Provision
Requirements ........................................................ 125
Subdivision B--VET accredited courses
126
188
Standards for VET Accredited Courses ......................................... 126
Subdivision C--VET Regulators
126
189
Standards for VET Regulators ....................................................... 126
190 Risk
Assessment Framework ......................................................... 126
Subdivision D--Miscellaneous
127
191
How the Ministerial Council gives agreement ............................... 127
Division 2--Conferral of functions and powers by State law
128
Subdivision A--Conferral of functions and powers
128
192
Commonwealth consent to conferral of functions etc. on the
National VET Regulator by corresponding State laws .................. 128
193 Meaning
of
imposes a duty ............................................................ 128
194
When duty imposed ....................................................................... 129
195
Duty imposed by corresponding State law applying
Commonwealth law ....................................................................... 130
Subdivision B--Jurisdiction of federal courts
131
196
Conferral of jurisdiction on federal courts ..................................... 131
Subdivision C--Administrative decisions
131
197
Review of certain decisions under State laws ................................ 131
Subdivision D--Application to the Australian Capital Territory
and the Northern Territory
132
198
Application to the Australian Capital Territory and the
Northern Territory ......................................................................... 132
National Vocational Education and Training Regulator Bill 2010 No. , 2010 x
Part 9--Administrative law matters
133
Division 1--Review of decisions
133
199 Reviewable
decisions ..................................................................... 133
200
Applications for reconsideration of decisions ................................ 134
201
Reconsideration by the National VET Regulator ........................... 135
202
Deadline for reconsideration .......................................................... 135
203
Review by the Administrative Appeals Tribunal ........................... 136
Division 2--Information management
137
Subdivision A--Unauthorised disclosure
137
204 Unauthorised
disclosure of VET information ................................ 137
Subdivision B--Information sharing
137
205
Disclosure of information by National VET Regulator ................. 137
206
Advising State/Territory Education Ministers about concerns
or proposed cancellation of registration ......................................... 138
207
Disclosure of information to occupational licensing bodies
etc. .................................................................................................. 139
208
Disclosure of information in accordance with international
cooperative arrangements .............................................................. 139
209
Release of information to the public .............................................. 139
210
Disclosure of information to the National VET Regulator ............ 140
Subdivision C--VET student records
141
211
VET student records to be provided to National VET
Regulator--executive officers etc. ................................................. 141
212
National VET Regulator may request VET student records to
be provided to Regulator ................................................................ 142
213
Transfer of VET student records to another registered
training organisation ...................................................................... 142
214 National
VET
Regulator's
management of VET student
records ........................................................................................... 142
Part 10--Reporting requirements
144
215 Annual
report
.................................................................................
144
216 National
Register
...........................................................................
145
Part 11--Strategic and annual operational plans
148
Division 1--Strategic plans
148
217
Development of strategic plan ....................................................... 148
218
Approval of strategic plan .............................................................. 148
219 Variation
of
strategic plans ............................................................ 149
xi National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 2--Annual operational plans
150
220 Development
of
annual operational plan ....................................... 150
221
Variation of annual operational plan .............................................. 150
Division 3--Compliance with plans
151
222 Compliance
with
plans
...................................................................
151
Part 12--Miscellaneous
152
Division 1--Delegations
152
223
Delegation by the Minister ............................................................ 152
224
Delegation by the National VET Regulator--government
authorities etc. ................................................................................ 152
225
Delegation by the National VET Regulator--occupational
licensing bodies and other industry bodies .................................... 153
226
Delegation by the National VET Regulator--NVR registered
training organisations ..................................................................... 153
Division 2--Provisions affecting partnerships
155
227 Partnerships--rights
and obligations ............................................. 155
228
Continuity of partnerships ............................................................. 155
229 Partnership
ceases to exist ............................................................. 155
Division 3--Provisions affecting unincorporated associations
156
230 Unincorporated
associations--rights and obligations .................... 156
231 Unincorporated
association ceases to exist .................................... 156
Division 4--Miscellaneous
157
232 Fees
................................................................................................
157
233
Protection from civil actions .......................................................... 158
234
Compensation for acquisition of property ..................................... 158
235 Regulations
....................................................................................
158
National Vocational Education and Training Regulator Bill 2010 No. , 2010 1
A Bill for an Act to establish the National
1
Vocational Education and Training Regulator, and
2
for related purposes
3
The Parliament of Australia enacts:
4
Part 1--Introduction
5
Division 1--Preliminary
6
1 Short title
7
This Act may be cited as the National Vocational Education and
8
Training Regulator Act 2010.
9
Part 1 Introduction
Division 1 Preliminary
Section 2
2 National Vocational Education and Training Regulator Bill 2010 No. , 2010
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
15
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3. Parts 2 to 12
At the same time as the provision(s) covered
by table item 2.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
13
Introduction Part 1
Definitions Division 2
Section 3
National Vocational Education and Training Regulator Bill 2010 No. , 2010 3
Division 2--Definitions
1
3 Definitions
2
In this Act:
3
acquisition of property has the same meaning as in paragraph
4
51(xxxi) of the Constitution.
5
Australia, when used in a geographical sense, includes the external
6
Territories.
7
Australian Qualifications Framework has the same meaning as in
8
the Higher Education Support Act 2003.
9
authorised officer means a person appointed as an authorised
10
officer under section 89.
11
Chief Commissioner means the Chief Commissioner appointed in
12
accordance with subsection 162(4).
13
Chief Executive Officer means the Chief Commissioner: see
14
section 179.
15
civil penalty provision means a subsection, or a section that is not
16
divided into subsections, that has set out at its foot the words "civil
17
penalty" and one or more amounts in penalty units.
18
Commissioner means a person appointed as a Commissioner under
19
subsection 162(1).
20
committee of management of an unincorporated association means
21
a body (however described) that governs, manages or conducts the
22
affairs of the association.
23
Commonwealth authority means:
24
(a) a Department of the Commonwealth; or
25
(b) a body (other than the National VET Regulator), whether
26
incorporated or not, established for a public purpose by or
27
under a law of the Commonwealth.
28
compliance audit means an audit carried out under subsection
29
35(1).
30
Part 1 Introduction
Division 2 Definitions
Section 3
4 National Vocational Education and Training Regulator Bill 2010 No. , 2010
corresponding State law means a law of a State, the Australian
1
Capital Territory or the Northern Territory declared by the
2
regulations to correspond to particular provisions of this Act or the
3
regulations, including such a law as amended from time to time.
4
course means a course of vocational education and training.
5
Data Provision Requirements has the meaning given by
6
section 187.
7
Education Minister, in relation to a State or Territory, means the
8
relevant Minister of the State or Territory with responsibility for
9
vocational education and training.
10
enforcement powers has the meaning given by section 68.
11
enforcement warrant means:
12
(a) a warrant issued under section 86; or
13
(b) a warrant signed by a magistrate under section 87.
14
evidential material means:
15
(a) in relation to an offence against this Act or an offence against
16
the Crimes Act 1914 or the Criminal Code that relates to this
17
Act:
18
(i) a thing with respect to which the offence has been
19
committed or is suspected, on reasonable grounds, of
20
having been committed; or
21
(ii) a thing that there are reasonable grounds for suspecting
22
will afford evidence as to the commission of the
23
offence; or
24
(iii) a thing that there are reasonable grounds for suspecting
25
is intended to be used for the purpose of committing the
26
offence; and
27
(b) in relation to a contravention of a civil penalty provision:
28
(i) a thing with respect to which the civil penalty provision
29
has been contravened or is suspected, on reasonable
30
grounds, of having been contravened; or
31
(ii) a thing that there are reasonable grounds for suspecting
32
will afford evidence as to the contravention of the civil
33
penalty provision; or
34
Introduction Part 1
Definitions Division 2
Section 3
National Vocational Education and Training Regulator Bill 2010 No. , 2010 5
(iii) a thing that there are reasonable grounds for suspecting
1
is intended to be used for the purpose of contravening
2
the civil penalty provision.
3
executive officer, in relation to a registered training organisation,
4
means:
5
(a) a person, by whatever name called and whether or not a
6
director of the organisation, who is concerned in, or takes
7
part in, the management of the organisation; or
8
(b) if the organisation is a body corporate:
9
(i) a person who, at any time during a period for which the
10
organisation is registered, owns 15% or more of the
11
organisation; or
12
(ii) a person who, at any time during a period for which the
13
organisation is registered, is entitled to receive 15% or
14
more of dividends paid by the organisation; or
15
(c) an administrator, receiver and manager, or liquidator of the
16
organisation (other than a receiver and manager, or
17
liquidator, appointed by a court); or
18
(d) if the organisation is a body corporate--the administrator of a
19
deed of company arrangement executed by an organisation;
20
or
21
(e) if the organisation is a body corporate--a trustee or other
22
person administering a compromise or arrangement made
23
between the organisation and another person or other
24
persons.
25
Federal Court means the Federal Court of Australia.
26
Federal Magistrate, other than in section 91, means a Federal
27
Magistrate in relation to whom a consent under subsection 91(1)
28
and a nomination under subsection 91(2) are in force.
29
Financial Viability Risk Assessment Requirements has the
30
meaning given by section 158.
31
Fit and Proper Person Requirements has the meaning given by
32
section 186.
33
former registered training organisation means:
34
Part 1 Introduction
Division 2 Definitions
Section 3
6 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(a) an organisation that was an NVR registered training
1
organisation; or
2
(b) a training organisation that was listed, at any time before this
3
section commences, on a register (now known as the
4
National Register) as being registered in a referring State or a
5
Territory.
6
high managerial agent of a registered training organisation means
7
an employee or agent of the organisation with duties of such
8
responsibility that his or her conduct may fairly be assumed to
9
represent the organisation in relation to the business of providing
10
courses.
11
just terms has the same meaning as in paragraph 51(xxxi) of the
12
Constitution.
13
lawyer means:
14
(a) a barrister; or
15
(b) a solicitor; or
16
(c) a barrister and solicitor; or
17
(d) a legal practitioner;
18
of the High Court or of the Supreme Court of a State or Territory.
19
magistrate includes a Federal Magistrate of the Federal
20
Magistrates Court.
21
member of the staff of the Regulator means:
22
(a) a person referred to in subsection 182(1); or
23
(b) a person whose services are made available to the National
24
VET Regulator as mentioned in subsection 183(1).
25
Ministerial Council means the body known as the Ministerial
26
Council for Tertiary Education and Employment on the day on
27
which this definition commences.
28
monitoring powers has the meaning given by section 67.
29
monitoring warrant means a warrant issued under section 85.
30
Introduction Part 1
Definitions Division 2
Section 3
National Vocational Education and Training Regulator Bill 2010 No. , 2010 7
National Register means the register maintained by the
1
Department, or another person prescribed by the regulations, and
2
referred to in section 216.
3
National VET Regulator means the body established by
4
section 155.
5
non-referring State has the meaning given by section 7.
6
NVR registered training organisation means a training
7
organisation that is registered by the National VET Regulator as a
8
registered training organisation under this Act.
9
penalty unit has the meaning given by section 4AA of the Crimes
10
Act 1914.
11
personal information has the same meaning as in the Privacy Act
12
1988.
13
person assisting an authorised officer has the meaning given by
14
section 69.
15
premises includes the following:
16
(a) a structure, building, vehicle, vessel or aircraft;
17
(b) a place (whether or not enclosed or built on);
18
(c) a part of a thing referred to in paragraph (a) or (b).
19
referred VET matters has the meaning given by section 6.
20
referring State has the meaning given by section 5.
21
registered provider has the same meaning as in the Education
22
Services for Overseas Students Act 2000.
23
registered training organisation means a training organisation
24
listed on the National Register as a registered training organisation.
25
reviewable State decision has the meaning given by section 197.
26
Risk Assessment Framework has the meaning given by
27
section 190.
28
Part 1 Introduction
Division 2 Definitions
Section 3
8 National Vocational Education and Training Regulator Bill 2010 No. , 2010
scope of registration, in relation to an NVR registered training
1
organisation, means the things that an organisation is registered to
2
do. It will allow an NVR registered training organisation to:
3
(a)
both:
4
(i) provide training and assessments resulting in the issue
5
of VET qualifications or VET statements of attainment
6
by the organisation; and
7
(ii) provide assessments resulting in the issue of VET
8
qualifications or VET statements of attainment by the
9
organisation; or
10
(b) provide assessments resulting in the issue of VET
11
qualifications or VET statements of attainment by the
12
organisation.
13
Secretary means the Secretary of the Department.
14
Standards for NVR Registered Training Organisations has the
15
meaning given by section 185.
16
Standards for VET Accredited Courses has the meaning given by
17
section 188.
18
Standards for VET Regulators has the meaning given by
19
section 189.
20
State or Territory authority means:
21
(a) a State or Territory; or
22
(b) a body, whether incorporated or not, established by or under
23
a law of a State or a Territory.
24
trading corporation means a corporation to which paragraph
25
51(xx) of the Constitution applies.
26
Transitional Act means the National Vocational Education and
27
Training Regulator (Transitional Provisions) Act 2010.
28
VET means Vocational Education and Training.
29
VET accredited course means:
30
Introduction Part 1
Definitions Division 2
Section 3
National Vocational Education and Training Regulator Bill 2010 No. , 2010 9
(a) if the National VET Regulator has delegated to a body the
1
function of accrediting a course--a course accredited by the
2
body under the delegation; or
3
(b) in any other case--a course accredited by the National VET
4
Regulator.
5
VET course means:
6
(a) the units of competency of a training package that is
7
endorsed by the Ministerial Council; or
8
(b) the modules of a VET accredited course; or
9
(c) the modules of a course accredited by a VET Regulator of a
10
non-referring State.
11
VET information means information that is held by the National
12
VET Regulator and relates to the performance of the Regulator's
13
functions.
14
VET qualification means a testamur, relating to a VET course,
15
given to a person confirming that the person has achieved learning
16
outcomes and competencies that satisfy the requirements of a
17
qualification.
18
VET Quality Framework means the following:
19
(a) the Standards for NVR Registered Training Organisations;
20
(b) the Australian Qualifications Framework;
21
(c) the Fit and Proper Person Requirements;
22
(d) the Financial Viability Risk Assessment Requirements;
23
(e) the Data Provision Requirements.
24
VET Regulator means:
25
(a) the National VET Regulator; and
26
(b) a body of a non-referring State that is responsible for the
27
kinds of matters dealt with by this Act.
28
VET statement of attainment, in relation to units of competency or
29
modules of a VET course, means a statement given to a person
30
confirming that the person has satisfied the requirements of units of
31
competency or modules specified in the statement.
32
Part 1 Introduction
Division 2 Definitions
Section 3
10 National Vocational Education and Training Regulator Bill 2010 No. , 2010
VET student means a student enrolled in all or part of a VET
1
course at a registered training organisation.
2
VET student records:
3
(a) in relation to a registered training organisation, means a
4
document, or an object, in any form (including any electronic
5
form) that is, or has been, kept by a person because of its
6
connection with a current or former VET student of the
7
organisation; and
8
(b) in relation to a former registered training organisation, means
9
a document, or an object, in any form (including any
10
electronic form) that is, or has been, kept by a person because
11
of its connection with a former VET student of the
12
organisation.
13
warrant means a monitoring warrant or an enforcement warrant.
14
15
Introduction Part 1
Constitutional basis for this Act and the Transitional Act Division 3
Section 4
National Vocational Education and Training Regulator Bill 2010 No. , 2010 11
Division 3--Constitutional basis for this Act and the
1
Transitional Act
2
4 Constitutional basis for this Act and the Transitional Act
3
Application in a referring State
4
(1) The application of this Act and the Transitional Act in a referring
5
State is based on:
6
(a) the legislative powers that the Commonwealth Parliament has
7
under the Constitution (other than paragraph 51(xxxvii)); and
8
(b) the legislative powers that the Commonwealth Parliament has
9
because of a reference or an adoption by the Parliament of
10
the referring State under paragraph 51(xxxvii) of the
11
Constitution.
12
Note:
For when this Act applies in a referring State, see subsections 8(1) and
13
(2).
14
Application in a Territory
15
(2) The application of this Act and the Transitional Act in a Territory
16
is based on:
17
(a) the legislative powers that the Commonwealth Parliament has
18
under section 122 of the Constitution to make laws for the
19
government of a Territory; and
20
(b) the other legislative powers that the Commonwealth
21
Parliament has under the Constitution.
22
Despite subsection 22(3) of the Acts Interpretation Act 1901, this
23
Act and the Transitional Act apply in the Territory as a law of the
24
Commonwealth.
25
Note:
For when this Act applies in a Territory, see subsection 8(3).
26
Application in a non-referring State
27
(3) The application of this Act and the Transitional Act in a
28
non-referring State is based on:
29
(a) the legislative powers that the Commonwealth Parliament has
30
under paragraph 51(xx) of the Constitution; and
31
Part 1 Introduction
Division 3 Constitutional basis for this Act and the Transitional Act
Section 5
12 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(b) the legislative powers that the Commonwealth Parliament has
1
under paragraph 51(xix) of the Constitution; and
2
(c) the legislative powers that the Commonwealth Parliament has
3
under paragraph 51(i) of the Constitution; and
4
(d) the legislative powers that the Commonwealth Parliament has
5
under section 122 of the Constitution to make laws for the
6
government of a Territory; and
7
(e) the other legislative powers that the Commonwealth
8
Parliament has under the Constitution (other than paragraph
9
51(xx), 51(xix) or 51(i) or section 122).
10
Note:
This Act only applies to certain organisations in a non-referring State,
11
see subsection 8(4).
12
Application outside Australia
13
(4) The operation of this Act and the Transitional Act outside Australia
14
is based on:
15
(a) the legislative power the Commonwealth Parliament has
16
under paragraph 51(xxix) of the Constitution; and
17
(b) the legislative powers that the Commonwealth Parliament has
18
under section 122 of the Constitution to make laws for the
19
government of a Territory; and
20
(c) the other legislative powers that the Commonwealth
21
Parliament has under the Constitution.
22
Note:
See also section 15.
23
5 Meaning of referring State
24
Meaning of referring State
25
(1) A State is a referring State if, for the purposes of paragraph
26
51(xxxvii) of the Constitution, the Parliament of the State:
27
(a) has referred the matters covered by subsections (3) and (5) to
28
the Commonwealth Parliament; or
29
(b)
has:
30
(i) adopted the relevant version of this Act and the relevant
31
version of the Transitional Act; and
32
Introduction Part 1
Constitutional basis for this Act and the Transitional Act Division 3
Section 5
National Vocational Education and Training Regulator Bill 2010 No. , 2010 13
(ii) referred the matter covered by subsection (5) to the
1
Commonwealth Parliament.
2
(2) A State is a referring State even if the State's referral law provides
3
that:
4
(a) the reference to the Commonwealth Parliament of a matter
5
covered by subsection (3) or (5) is to terminate in particular
6
circumstances; or
7
(b) the adoption of the relevant version of this Act or the relevant
8
version of the Transitional Act is to terminate in particular
9
circumstances; or
10
(c) the reference to the Commonwealth Parliament of a matter
11
covered by subsection (3) or (5) has effect only:
12
(i) if and to the extent that the matter is not included in the
13
legislative powers of the Commonwealth Parliament
14
(otherwise than by a reference under section 51(xxxvii)
15
of the Constitution); or
16
(ii) if and to the extent that the matter is included in the
17
legislative powers of the Parliament of the State.
18
Reference covering the relevant versions of this Act and the
19
Transitional Act
20
(3) This subsection covers the matters to which the referred provisions
21
relate, to the extent of the making of laws with respect to those
22
matters by including the referred provisions in the relevant version
23
of this Act and the relevant version of the Transitional Act.
24
(4) A State stops being a referring State if:
25
(a) in the case where the Parliament of the State has referred to
26
the Commonwealth Parliament the matters covered by
27
subsection (3)--that reference terminates; or
28
(b) in the case where the Parliament of the State has adopted the
29
relevant version of this Act and the relevant version of the
30
Transitional Act--the adoption terminates.
31
Part 1 Introduction
Division 3 Constitutional basis for this Act and the Transitional Act
Section 5
14 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Amendment references
1
(5) This subsection covers the referred VET matters to the extent of
2
the making of laws with respect to those matters by making
3
express amendments of this Act or the Transitional Act.
4
(6) A State stops being a referring State if:
5
(a) the State's amendment reference terminates; and
6
(b) subsection (7) does not apply to the termination.
7
(7) A State does not cease to be a referring State because of the
8
termination of its amendment reference if:
9
(a) the termination is effected by the Governor of that State
10
fixing a day by Proclamation as the day the reference
11
terminates; and
12
(b) the day fixed is no earlier than the first day after the end of
13
the period of 6 months beginning on the day the
14
Proclamation is published; and
15
(c) that State's amendment reference, and the amendment
16
reference of every other State, terminates on the same day.
17
Definitions
18
(8) In this section:
19
amendment reference, of a State, means the reference by the
20
Parliament of the State to the Parliament of the Commonwealth of
21
the matter covered by subsection (5).
22
express amendment of this Act or the Transitional Act means the
23
direct amendment of the text of this Act or the Transitional Act
24
(whether by the insertion, omission, repeal, substitution or
25
relocation of words or matter) by another Commonwealth Act or
26
by an instrument under a Commonwealth Act, but does not include
27
the enactment by a Commonwealth Act of a provision that has, or
28
will have, substantive effect otherwise than as part of the text of
29
this Act or the Transitional Act.
30
referral law, of a State, means the Act of the State that refers the
31
matter covered by subsection (5) to the Commonwealth
32
Parliament.
33
Introduction Part 1
Constitutional basis for this Act and the Transitional Act Division 3
Section 6
National Vocational Education and Training Regulator Bill 2010 No. , 2010 15
referred provisions means:
1
(a) the relevant version of this Act; and
2
(b) the relevant version of the Transitional Act;
3
to the extent to which they deal with matters that are included in
4
the legislative powers of the Parliaments of the States.
5
relevant version of the Transitional Act means the Transitional
6
Act as originally enacted.
7
relevant version of this Act means:
8
(a) if, at the time the State's referral law was enacted, this Act
9
had not been enacted--this Act as originally enacted; or
10
(b) otherwise--this Act as originally enacted, and as later
11
amended by an Act that is enacted before the enactment of
12
the State's referral law.
13
State law means:
14
(a) any Act of the State or any instrument made under such an
15
Act, whenever enacted or made and as in force from time to
16
time; or
17
(b) the general law, being the principles and rules of common
18
law and equity to the extent that they have effect in the State
19
from time to time.
20
6 Meaning of referred VET matters
21
(1) In this Act, referred VET matters means:
22
(a) the registration and regulation of vocational education and
23
training organisations; and
24
(b) the accreditation or other recognition of vocational education
25
and training courses or programs; and
26
(c) the issue and cancellation of vocational education and
27
training qualifications or statements of attainment; and
28
(d) the standards to be complied with by a vocational education
29
and training regulator; and
30
(e) the collection, publication, provision and sharing of
31
information about vocational education and training; and
32
(f) the investigative powers, sanctions and enforcement in
33
relation to any of the above.
34
Part 1 Introduction
Division 3 Constitutional basis for this Act and the Transitional Act
Section 7
16 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(2)
However,
referred VET matters does not include the matter of
1
making a law that excludes or limits the operation of a law of a
2
referring State or a Territory to the extent that the law of the
3
referring State or Territory makes provision with respect to:
4
(a) primary or secondary education (including the education of
5
children subject to compulsory school education); or
6
(b) tertiary education that is recognised as higher education and
7
not vocational education and training; or
8
(c) the rights and obligations of persons providing or
9
undertaking apprenticeships or traineeships; or
10
(d) the qualifications or other requirements to undertake or carry
11
out any business, occupation or other work (other than that of
12
a vocational education and training organisation); or
13
(e) the funding by referring States or Territories of vocational
14
education and training; or
15
(f) the establishment or management of any agency of the State
16
or Territory that provides vocational education and training.
17
7 Meaning of non-referring State
18
(1) A State is a non-referring State if the State is not a referring State.
19
Note:
For the meaning of referring State, see section 5.
20
(2) A State is taken not to be a non-referring State for the period
21
mentioned in subsection (4) if the Minister determines, by
22
legislative instrument, that the State is covered by this subsection.
23
(3) The Minister may make a determination under subsection (2) in
24
relation to a State if:
25
(a) before the day this section commences, he or she has
26
obtained the written agreement of the relevant Education
27
Minister for the State; and
28
(b) the written agreement requires, for the purposes of paragraph
29
51(xxxvii) of the Constitution, the relevant Education
30
Minister for the State to introduce legislation into the
31
Parliament of the State that:
32
(i) adopts the relevant version of this Act and the relevant
33
version of the Transitional Act; and
34
Introduction Part 1
Constitutional basis for this Act and the Transitional Act Division 3
Section 8
National Vocational Education and Training Regulator Bill 2010 No. , 2010 17
(ii) refers the matter covered by subsection 5(5) to the
1
Commonwealth Parliament.
2
Note:
Section 42 (disallowance) of the Legislative Instruments Act 2003
3
does not apply to a determination (see section 44 of that Act).
4
(4) The period referred to in subsection (2) in relation to a State is the
5
period beginning on the day this section commences and ending on
6
the earlier of:
7
(a) the day that the legislation passed by the Parliament of the
8
State:
9
(i) adopting the relevant version of this Act and the
10
relevant version of the Transitional Act; and
11
(ii) referring the matter covered by subsection 5(5) of this
12
Act to the Commonwealth Parliament;
13
comes into force; and
14
(b) the last day of the 12 month period beginning on the day this
15
section commences.
16
8 When application of this Act takes effect
17
Referring States
18
(1) This Act applies in a referring State covered by paragraph 5(1)(a)
19
on and after the later of the following:
20
(a) the day that the legislation passed by the Parliament of the
21
State referring the matters covered by subsections 5(3) and
22
(5) to the Commonwealth Parliament receives the Royal
23
Assent;
24
(b) the day this section commences.
25
(2) This Act applies in a referring State covered by paragraph 5(1)(b)
26
on and after the day that legislation passed by the Parliament of the
27
State:
28
(a) adopting the relevant version of this Act and the relevant
29
version of the Transitional Act; and
30
(b) referring the matter covered by subsection 5(5) to the
31
Commonwealth Parliament;
32
comes into force.
33
Part 1 Introduction
Division 3 Constitutional basis for this Act and the Transitional Act
Section 9
18 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Territories
1
(3) This Act applies in a Territory on and after the day this section
2
commences.
3
Non-referring States
4
(4) This Act applies in relation to a training organisation that operates
5
in a non-referring State on and after the day this section
6
commences if:
7
(a) the organisation is a registered provider (other than a
8
secondary school); or
9
(b) the organisation provides all or part of a VET course in the
10
non-referring State and a referring State or a Territory; or
11
(c) the organisation provides all or part of a VET course in the
12
non-referring State and offers all or part of a VET course in a
13
referring State or a Territory to be provided in the referring
14
State or Territory.
15
Note: Paragraph
(a)--registered provider is defined, see section 3.
16
(5) In addition to its effect apart from this subsection, subsection (4)
17
also has the effect it would have if each reference to an
18
organisation were, by express provision, confined to a trading
19
corporation.
20
9 Immunity from State and Territory laws
21
Laws of referring States
22
(1) An NVR registered training organisation that operates in a
23
referring State is not subject to a law of the referring State that
24
relates to a referred VET matter (other than a law that applies
25
whether or not a person is a training organisation).
26
Laws of a Territory
27
(2) An NVR registered training organisation that operates in a
28
Territory is not subject to a law of the Territory that relates to a
29
referred VET matter (other than a law that applies whether or not a
30
person is a training organisation).
31
Introduction Part 1
Constitutional basis for this Act and the Transitional Act Division 3
Section 10
National Vocational Education and Training Regulator Bill 2010 No. , 2010 19
Laws of non-referring States
1
(3) To the extent that a registered training organisation is an NVR
2
registered training organisation that operates in a non-referring
3
State, the organisation is not subject to a law of the non-referring
4
State that relates to:
5
(a) the registration and regulation of vocational education and
6
training organisations (other than secondary schools); or
7
(b) the accreditation or other recognition of vocational education
8
and training courses or programs; or
9
(c) the issue and cancellation of vocational education and
10
training qualifications or statements of attainment; or
11
(d) the collection, publication, provision and sharing of
12
information about vocational education and training; or
13
(e) the investigative powers, sanctions and enforcement in
14
relation to any of the above;
15
other than a law that applies whether or not a person is a training
16
organisation.
17
10 When this Act does not apply--exclusion by a law of a referring
18
State or a Territory
19
(1) This section applies if a law of a referring State, or of a Territory,
20
declares a matter to be an excluded matter for the purposes of this
21
section in relation to:
22
(a) the whole of this Act; or
23
(b) a specified provision of this Act; or
24
(c) this Act, other than a specified provision; or
25
(d) this Act, otherwise than to a specified extent.
26
(2) This Act, other than this section and Part 2 (Registration), does not
27
apply in relation to the excluded matter to the extent provided by
28
the declaration.
29
(3) Subsection (2) does not apply to a declaration to the extent
30
prescribed by the regulations.
31
Part 1 Introduction
Division 3 Constitutional basis for this Act and the Transitional Act
Section 11
20 National Vocational Education and Training Regulator Bill 2010 No. , 2010
11 Addressing inconsistency between Commonwealth and State and
1
Territory laws
2
(1) This section has effect despite anything else in this Act or the
3
Transitional Act.
4
(2) This section applies to the interaction between a provision (the
5
displacement provision) of a law of a referring State or a Territory
6
and a provision (the Commonwealth provision) of this Act or the
7
Transitional Act only if the displacement provision is declared by a
8
law of the State or Territory to be a VET legislation displacement
9
provision for the purposes of this section (either generally or
10
specifically in relation to the Commonwealth provision).
11
(3) The Commonwealth provision does not:
12
(a) prohibit the doing of an act; or
13
(b) impose a liability (whether civil or criminal) for doing an act;
14
if the displacement provision specifically permits, authorises or
15
requires the doing of that act.
16
(4) The Commonwealth provision does not operate in or in relation to
17
the State or Territory to the extent necessary to ensure that no
18
inconsistency arises between:
19
(a) the Commonwealth provision; and
20
(b) the displacement provision to the extent to which the
21
displacement provision would, apart from this subsection, be
22
inconsistent with the Commonwealth provision.
23
Note:
The displacement provision is not covered by this subsection if
24
subsection (3) applies to the displacement provision: if that subsection
25
applies there would be no potential inconsistency to be dealt with by
26
this subsection.
27
(5) Subsections (3) and (4) do not apply in relation to the displacement
28
provision to the extent to which the regulations provide that those
29
subsections do not apply in relation to the displacement provision.
30
31
Introduction Part 1
General application of this Act and the Transitional Act Division 4
Section 12
National Vocational Education and Training Regulator Bill 2010 No. , 2010 21
Division 4--General application of this Act and the
1
Transitional Act
2
12 Acts bind the Crown
3
(1) This Act and the Transitional Act bind the Crown in each of its
4
capacities.
5
(2) This Act and the Transitional Act do not make the Crown liable to
6
be prosecuted for an offence or to any pecuniary penalty.
7
13 Acts not to apply so as to exceed Commonwealth power
8
(1) Unless the contrary intention appears, if a provision of this Act or
9
the Transitional Act:
10
(a) would, apart from this section, have an application (an
11
invalid application) in relation to:
12
(i) one or more particular persons, things, matters, places,
13
circumstances or cases; or
14
(ii) one or more classes (however defined or determined) of
15
persons, things, matters, places, circumstances or cases;
16
because of which the provision exceeds the Commonwealth's
17
legislative power; and
18
(b) also has at least one application (a valid application) in
19
relation to:
20
(i) one or more particular persons, things, matters, places,
21
circumstances or cases; or
22
(ii) one or more classes (however defined or determined) of
23
persons, things, matters, places, circumstances or cases;
24
that, if it were the provision's only application, would be
25
within the Commonwealth's legislative power;
26
it is the Parliament's intention that the provision is not to have the
27
invalid application, but is to have every valid application.
28
(2) Despite subsection (1), the provision is not to have a particular
29
valid application if:
30
(a) apart from this section, it is clear, taking into account the
31
provision's context and the purpose or object underlying this
32
Part 1 Introduction
Division 4 General application of this Act and the Transitional Act
Section 14
22 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Act or the Transitional Act, as the case may be, that the
1
provision was intended to have that valid application only if
2
every invalid application, or a particular invalid application,
3
of the provision had also been within the Commonwealth's
4
legislative power; or
5
(b) the provision's operation in relation to that valid application
6
would be different in a substantial respect from what would
7
have been its operation in relation to that valid application if
8
every invalid application of the provision had been within the
9
Commonwealth's legislative power.
10
(3) Subsection (2) does not limit the cases where a contrary intention
11
may be taken to appear for the purposes of subsection (1).
12
(4) This section applies to a provision of this Act and the Transitional
13
Act, whether enacted on or after the day this section commences.
14
14 Extension of Acts to external Territories
15
This Act and the Transitional Act extend to every external
16
Territory.
17
15 Extra-territorial application
18
Unless the contrary intention appears, this Act and the Transitional
19
Act extend to acts, omissions, matters and things done outside
20
Australia in relation to:
21
(a) all or part of a VET course; or
22
(b) a VET qualification.
23
24
Registration Part 2
Registering as an NVR registered training organisation Division 1
Section 16
National Vocational Education and Training Regulator Bill 2010 No. , 2010 23
Part 2--Registration
1
Division 1--Registering as an NVR registered training
2
organisation
3
Subdivision A--Applying for registration
4
16 Application for registration
5
(1) A person may apply to the National VET Regulator for
6
registration, including renewal of registration, as an NVR
7
registered training organisation.
8
(2) A body that is part of a State or Territory may apply to the National
9
VET Regulator for registration, including renewal of registration,
10
of the body as an NVR registered training organisation.
11
(3) An application for registration must be in a form approved by the
12
National VET Regulator and must be accompanied by:
13
(a) any information or documents that the Regulator requires;
14
and
15
(b) the application fee determined by the Minister, by legislative
16
instrument, under section 232.
17
17 Registration
18
Grant of application for registration
19
(1) The National VET Regulator may grant an application for
20
registration.
21
(2) In deciding whether to grant an application, the National VET
22
Regulator must consider whether the applicant complies with:
23
(a) the VET Quality Framework; and
24
(b) the applicable conditions of registration set out in
25
Subdivision B of this Division.
26
(3) When considering the application, the National VET Regulator
27
may conduct an audit of any matter relating to the application.
28
Part 2 Registration
Division 1 Registering as an NVR registered training organisation
Section 18
24 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(4) The National VET Regulator may charge a registration assessment
1
fee for considering the application.
2
Period of registration
3
(5) If the National VET Regulator grants an application, the Regulator
4
must also determine the period for which the applicant is
5
registered. The period must not be more than 5 years.
6
Note:
For renewals of registration, see section 31.
7
Conditions of registration
8
(6) If the National VET Regulator considers it appropriate to do so, the
9
Regulator may impose one or more conditions under subsection
10
29(1) to which an organisation's registration is subject.
11
Note:
An NVR registered training organisation is also subject to statutory
12
conditions, see Subdivision B of this Division.
13
18 National VET Regulator to notify applicant of decision on
14
registration
15
The National VET Regulator must, within 30 days of its decision
16
to grant or reject an application for registration as an NVR
17
registered training organisation, notify the applicant, in writing, of:
18
(a) the decision; and
19
(b) if the Regulator rejects the application--the reasons for the
20
decision; and
21
(c) if the Regulator grants the application--the following:
22
(i) the applicant's scope of registration;
23
(ii) the period for which the organisation is registered;
24
(iii) any conditions imposed on the organisation's
25
registration under subsection 29(1);
26
(iv) the registration fee payable by the applicant and, if the
27
fee is to be payable in instalments, the amount of each
28
instalment and the date on which it is to be paid.
29
Note:
Subparagraphs (c)(i) to (iii)--in relation to each NVR registered
30
training organisation, these details are included on the National
31
Register, see section 216.
32
Registration Part 2
Registering as an NVR registered training organisation Division 1
Section 19
National Vocational Education and Training Regulator Bill 2010 No. , 2010 25
19 National VET Regulator to issue certificate of registration
1
(1) After registering an applicant as an NVR registered training
2
organisation, the National VET Regulator must give the applicant a
3
certificate of registration.
4
(2) A certificate of registration must state the matters prescribed by the
5
regulations.
6
(3) A certificate of registration is prima facie evidence of the matters
7
stated in it.
8
20 Commencement and duration of registration
9
(1) An applicant's registration:
10
(a)
commences:
11
(i) if it is a renewal of registration--on the day after the
12
day on which the NVR registered training
13
organisation's previous registration expired; or
14
(ii) in any other case--on the day specified in a written
15
notice given to the applicant; and
16
(b) subject to subsection (2), expires at the end of the period
17
determined by the National VET Regulator, unless the
18
applicant's registration is cancelled or withdrawn before that
19
time.
20
Note:
The period of an NVR registered training organisation's registration
21
may be shortened, see paragraph 36(2)(c).
22
(2) The National VET Regulator may, in exceptional circumstances,
23
extend an NVR registered training organisation's registration
24
without the organisation needing to apply to have its registration
25
renewed.
26
(3) If an NVR registered training organisation's registration is so
27
extended, a reference in this Act to the period of an NVR
28
registered training organisation's registration is to be read as a
29
reference to that period as so extended.
30
Part 2 Registration
Division 1 Registering as an NVR registered training organisation
Section 21
26 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Subdivision B--Conditions of registration
1
21 Complying with conditions
2
An NVR registered training organisation must:
3
(a) comply with the conditions set out in sections 22 to 28; and
4
(b) comply with any conditions imposed on the organisation's
5
registration under subsection 29(1).
6
Note:
Failure to comply with a condition of registration is a contravention of
7
a civil penalty provision, see section 111.
8
22 Condition--compliance with the VET Quality Framework
9
(1) An NVR registered training organisation must comply with the
10
Standards for NVR Registered Training Organisations.
11
(2) An NVR registered training organisation must comply with the
12
Australian Qualifications Framework.
13
(3) An NVR registered training organisation must comply with the
14
Data Provision Requirements.
15
23 Condition--satisfying Fit and Proper Person Requirements
16
An NVR registered training organisation must satisfy the Fit and
17
Proper Person Requirements.
18
24 Condition--satisfying the Financial Viability Risk Assessment
19
Requirements
20
An NVR registered training organisation must satisfy the Financial
21
Viability Risk Assessment Requirements.
22
25 Condition--notifying National VET Regulator of material
23
changes
24
(1) An NVR registered training organisation must notify the National
25
VET Regulator, in writing, if:
26
Registration Part 2
Registering as an NVR registered training organisation Division 1
Section 26
National Vocational Education and Training Regulator Bill 2010 No. , 2010 27
(a) an event occurs that would significantly affect the
1
organisation's ability to comply with the VET Quality
2
Framework; or
3
(b) the name or contact details of an executive officer or high
4
managerial agent of the organisation change; or
5
(c) there are other substantial changes to the operations of the
6
organisation.
7
(2) The notice must be given to the National VET Regulator as soon as
8
practicable after the NVR registered training organisation becomes
9
aware of a matter mentioned in subsection (1).
10
26 Condition--other information must be provided
11
(1) An NVR registered training organisation must give the National
12
VET Regulator such information as the Regulator requests, by
13
notice in writing, for the purposes of this Act.
14
(2) A notice must specify the period within which the information
15
requested is to be given.
16
27 Condition--cooperation
17
An NVR registered training organisation must cooperate with the
18
National VET Regulator, at least to the extent that:
19
(a) it is necessary for the Regulator to perform its functions; or
20
(b) it is necessary to facilitate the Regulator's performance of its
21
functions.
22
28 Condition--compliance with directions given by the National
23
VET Regulator
24
(1) An NVR registered training organisation must comply with any
25
general directions given by the National VET Regulator, in
26
writing, to organisations on the way in which the VET Quality
27
Framework or other conditions of this Subdivision are to be
28
complied with.
29
(2) The National VET Regulator must publish a general direction on
30
its website.
31
Part 2 Registration
Division 1 Registering as an NVR registered training organisation
Section 29
28 National Vocational Education and Training Regulator Bill 2010 No. , 2010
29 Other conditions
1
(1) The National VET Regulator may impose other conditions on an
2
NVR registered training organisation's registration. Such
3
conditions need not be imposed at the time of registration.
4
(2) The National VET Regulator may vary a condition imposed under
5
subsection (1).
6
30 National VET Regulator to notify NVR registered training
7
organisation of change in conditions of registration
8
The National VET Regulator must, within 30 days of its decision
9
to impose or vary a condition on an NVR registered training
10
organisation's registration, notify the organisation, in writing, of:
11
(a) the decision; and
12
(b) the reasons for the decision; and
13
(c) the period for which the condition is imposed.
14
Note:
Details of conditions imposed on an NVR registered training
15
organisation's registration are included on the National Register, see
16
section 216.
17
Subdivision C--Renewing registration
18
31 Renewal of registration
19
(1) The National VET Regulator may renew an NVR registered
20
training organisation's registration under section 17 if the
21
organisation makes an application for renewal:
22
(a) at least 90 days before the day the organisation's registration
23
expires; or
24
(b) within such shorter period as the Regulator allows.
25
(2) An application must be accompanied by the application fee
26
determined by the Minister, by legislative instrument, under
27
section 232.
28
(3) An NVR registered training organisation's registration is taken to
29
continue until the organisation's application is decided.
30
Registration Part 2
Registering as an NVR registered training organisation Division 1
Section 31
National Vocational Education and Training Regulator Bill 2010 No. , 2010 29
(4) An NVR registered training organisation may apply for renewal of
1
registration during a period when all or part of its scope of
2
registration is suspended.
3
4
Part 2 Registration
Division 2 Changing the scope of registration
Section 32
30 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 2--Changing the scope of registration
1
32 Application for change of scope of registration
2
(1) If an NVR registered training organisation wishes to offer all or
3
part of a VET course that is not within its scope of registration, the
4
organisation may apply to the National VET Regulator to change
5
its scope of registration to include the VET course or part of the
6
VET course.
7
(2) An application must be in a form approved by the National VET
8
Regulator and must be accompanied by:
9
(a) any information or documents that the Regulator requires;
10
and
11
(b) the application fee determined by the Minister, by legislative
12
instrument, under section 232.
13
33 Change of scope of registration
14
(1) The National VET Regulator may grant an application for a change
15
in the applicant's scope of registration.
16
(2) In deciding whether to grant an application, the National VET
17
Regulator must consider:
18
(a) the applicant's ability to provide the VET course, or part of
19
the VET course, in accordance with the VET Quality
20
Framework; and
21
(b) the other VET courses, or parts of VET courses, offered by
22
the applicant; and
23
(c) whether the applicant complies with:
24
(i) the VET Quality Framework; and
25
(ii) the other conditions of registration set out in
26
Subdivision B of Division 1 of this Part.
27
(3) If the National VET Regulator grants an application, the Regulator
28
must determine the day from which the VET course, or part of the
29
VET course, may be delivered by the applicant.
30
Registration Part 2
Changing the scope of registration Division 2
Section 34
National Vocational Education and Training Regulator Bill 2010 No. , 2010 31
34 National VET Regulator to notify applicant of decision on change
1
of scope of registration
2
The National VET Regulator must, within 30 days of its decision
3
to grant or reject an application for a change in scope of
4
registration, notify the applicant, in writing, of:
5
(a) the decision; and
6
(b) if the Regulator rejects the application--the reasons for the
7
decision; and
8
(c) if the Regulator grants the application--the following:
9
(i) the applicant's new scope of registration;
10
(ii) the day from which the new VET course, or part of the
11
new VET course, may be delivered by the applicant;
12
(iii) the period for which the organisation is registered;
13
(iv) any conditions imposed on the provider's registration
14
under subsection 29(1).
15
Note:
Paragraph (c)--in relation to each NVR registered training
16
organisation, these details are included on the National Register, see
17
section 216.
18
19
Part 2 Registration
Division 3 Ensuring compliance with the VET Quality Framework
Section 35
32 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 3--Ensuring compliance with the VET Quality
1
Framework
2
Subdivision A--Audits
3
35 Audits
4
(1) The National VET Regulator may, at any time, conduct a
5
compliance audit of an NVR registered training organisation's
6
operations to assess whether the organisation continues to comply
7
with the VET Quality Framework.
8
(2) The National VET Regulator may also review or examine any
9
aspect of an NVR registered training organisation's operations to
10
determine any systemic issues relating to the quality of vocational
11
education and training.
12
Subdivision B--Administrative sanctions
13
36 Sanctions
14
(1) This Subdivision applies if:
15
(a) after natural justice requirements have been satisfied, the
16
National VET Regulator is satisfied that it is appropriate to
17
impose one or more sanctions on an NVR registered training
18
organisation; or
19
(b) in exceptional circumstances, the National VET Regulator is
20
satisfied that it is appropriate to impose one or more
21
sanctions on an NVR registered training organisation without
22
satisfying natural justice requirements.
23
(2) The National VET Regulator may do one or more of the following:
24
(a) give a written direction to an NVR registered training
25
organisation requiring the organisation to rectify a breach of
26
a condition on the organisation's registration;
27
(b) give a written direction to an NVR registered training
28
organisation requiring the organisation to notify its VET
29
students, in writing, of a matter set out in the direction;
30
Registration Part 2
Ensuring compliance with the VET Quality Framework Division 3
Section 37
National Vocational Education and Training Regulator Bill 2010 No. , 2010 33
(c) shorten the period of an NVR registered training
1
organisation's registration;
2
(d) amend an NVR registered training organisation's scope of
3
registration;
4
(e) suspend all or part of an NVR registered training
5
organisation's scope of registration under section 38;
6
(f) cancel an NVR registered training organisation's registration
7
under section 39.
8
(3) In determining what action to take in relation to an NVR registered
9
training organisation, the National VET Regulator may have regard
10
to:
11
(a) the organisation's conduct, or circumstances existing, before
12
the Regulator had cause to consider imposing a sanction on
13
the organisation (including before the commencement of this
14
section); and
15
(b) if section 37 applies--the organisation's conduct, or
16
circumstances existing, since the Regulator gave the
17
organisation a written notice as mentioned in that section.
18
37 Natural justice requirements
19
(1) For the purpose of paragraph 36(1)(a), before making a decision to
20
do any of the things mentioned in subsection 36(2) in relation to an
21
NVR registered training organisation, the National VET Regulator
22
must give the organisation a written notice:
23
(a) stating that the Regulator intends to make a decision to do a
24
thing mentioned in that subsection and the reasons for the
25
proposed decision; and
26
(b) inviting the organisation to give the Regulator a written
27
response to the notice:
28
(i) if the Regulator considers that the circumstances require
29
urgent action--within a period specified in the notice,
30
which must be at least 24 hours; or
31
(ii) in any other case--within a period specified in the
32
notice, which must be at least 72 hours.
33
Part 2 Registration
Division 3 Ensuring compliance with the VET Quality Framework
Section 38
34 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(2) After considering any response received within that period, if the
1
National VET Regulator still considers that the decision should be
2
made, the Regulator:
3
(a) may make the decision; and
4
(b) must give the NVR registered training organisation
5
concerned written notice of the decision.
6
38 Suspension
7
(1) The National VET Regulator may, by notice in writing, suspend all
8
or part of an NVR registered training organisation's scope of
9
registration.
10
Note:
Details relating to an NVR registered training organisation whose
11
scope of registration is suspended are included on the National
12
Register, see section 216.
13
(2) During the period of suspension, the National VET Regulator may
14
require the NVR registered training organisation to do something,
15
not to do something, or both. This may include restrictions on:
16
(a) enrolling a student in a VET course or part of a VET course;
17
or
18
(b) allowing a VET student to begin a VET course or part of a
19
VET course; or
20
(c) publishing or broadcasting an advertisement relating to a
21
VET course or any part of a VET course; or
22
(d) causing to be published or broadcast an advertisement
23
relating to a VET course or any part of a VET course.
24
Note:
Failure to comply with the National VET Regulator's requirements is
25
an offence and a contravention of a civil penalty provision, see
26
sections 101 and 102 respectively.
27
39 Cancellation
28
(1) The National VET Regulator may, by notice in writing, cancel an
29
NVR registered training organisation's registration in any
30
circumstances that the Regulator considers it appropriate to do so,
31
including for failure to pay a registration fee.
32
Note:
Details relating to an NVR registered training organisation whose
33
registration is cancelled are included on the National Register, see
34
section 216.
35
Registration Part 2
Ensuring compliance with the VET Quality Framework Division 3
Section 40
National Vocational Education and Training Regulator Bill 2010 No. , 2010 35
(2) An organisation whose registration is cancelled under this Act
1
must return its certificate of registration to the National VET
2
Regulator within 10 days of the day the cancellation takes effect.
3
Note:
Failure to return a certificate of registration is a contravention of a
4
civil penalty provision, see section 112.
5
(3) An organisation whose registration is cancelled under this Act may
6
not apply for registration as an NVR registered training
7
organisation for 2 years, or such shorter period as the National
8
VET Regulator considers appropriate, after the day the cancellation
9
takes effect.
10
40 Other enforcement action
11
To avoid doubt, the National VET Regulator may take action, or
12
cause action to be taken, under Part 6 (which deals with
13
enforcement) in addition to, or instead of, doing anything it may do
14
under this Subdivision.
15
Part 2 Registration
Division 4 Requests for reassessment
Section 41
36 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 4--Requests for reassessment
1
41 Requests for reassessment
2
(1) This section applies if, under this Part, the National VET Regulator
3
has:
4
(a) deferred making a decision to change an NVR registered
5
training organisation's scope of registration; and
6
(b) identified issues that the organisation would need to address
7
before the Regulator would be satisfied that the organisation
8
has done whatever is required for the organisation's scope of
9
registration to be changed.
10
(2) This section also applies if, under this Part, the National VET
11
Regulator has identified issues that an NVR registered training
12
organisation would need to address before the Regulator would be
13
satisfied that the organisation has done whatever is required for:
14
(a) a condition imposed on the organisation's registration to be
15
varied or removed; or
16
(b) the organisation's scope of registration to be changed; or
17
(c) the organisation's suspension to be lifted.
18
(3) The NVR registered training organisation may request, in writing,
19
that the National VET Regulator reassess its position in relation to
20
the issues identified by the Regulator.
21
(4) A request must:
22
(a) describe the actions taken by the NVR registered training
23
organisation to address the issues identified by the National
24
VET Regulator; and
25
(b) be accompanied by the reassessment fee determined by the
26
Minister, by legislative instrument, under section 232.
27
28
Registration Part 2
Withdrawing registration Division 5
Section 42
National Vocational Education and Training Regulator Bill 2010 No. , 2010 37
Division 5--Withdrawing registration
1
42 Withdrawing registration
2
(1) An NVR registered training organisation may withdraw its
3
registration by giving written notice of withdrawal to the National
4
VET Regulator.
5
(2) If the National VET Regulator is satisfied, in all the circumstances,
6
that it is appropriate to allow an NVR registered training
7
organisation's registration to be withdrawn, the Regulator must
8
advise the organisation, by notice in writing, of the day from which
9
the withdrawal takes effect.
10
(3) An organisation whose registration is withdrawn under this Act
11
must return its certificate of registration to the National VET
12
Regulator within 10 days of the day the withdrawal takes effect.
13
Note:
Failure to return a certificate of registration is a contravention of a
14
civil penalty provision, see section 112.
15
16
Part 3 Accreditation of courses
Division 1 Applying for accreditation
Section 43
38 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Part 3--Accreditation of courses
1
Division 1--Applying for accreditation
2
43 Application for accreditation
3
(1) A person may apply to the National VET Regulator for the
4
accreditation of a course as a VET accredited course.
5
(2) An application must be in a form approved by the National VET
6
Regulator and must be accompanied by:
7
(a) any information or documents that the Regulator requires;
8
and
9
(b) the application fee determined by the Minister, by legislative
10
instrument, under section 232.
11
44 Accreditation of course
12
Grant of application for accreditation of course
13
(1) The National VET Regulator may grant an application for the
14
accreditation of a course.
15
(2) In deciding whether to grant an application, the National VET
16
Regulator must consider whether the course meets:
17
(a) the Standards for VET Accredited Courses; and
18
(b) the Australian Qualifications Framework.
19
Period of accreditation
20
(3) If the National VET Regulator grants an application, the Regulator
21
must also determine the period for which the course is accredited.
22
The period must not be more than 5 years.
23
Note:
For renewals of accreditation, see section 50.
24
Conditions of accreditation
25
(4) If the National VET Regulator considers it appropriate to do so, the
26
Regulator may impose one or more conditions under subsection
27
48(1) on the accreditation of a course.
28
Accreditation of courses Part 3
Applying for accreditation Division 1
Section 45
National Vocational Education and Training Regulator Bill 2010 No. , 2010 39
45 National VET Regulator to notify applicant of decision on
1
accreditation of course
2
The National VET Regulator must, within 30 days of its decision
3
to grant or reject an application for the accreditation of a course as
4
a VET accredited course, notify the applicant, in writing, of:
5
(a) the decision; and
6
(b) if the Regulator rejects the application--the reasons for the
7
decision; and
8
(c) if the Regulator grants the application--the following:
9
(i) the period for which the course is accredited;
10
(ii) any conditions imposed on the accreditation of the
11
course under subsection 48(1).
12
Note:
Paragraph (c)--in relation to each VET accredited course, these
13
details are included on the National Register, see section 216.
14
46 Commencement and duration of accreditation
15
(1) Accreditation of a course:
16
(a)
commences:
17
(i) if it is a renewal of the course's accreditation as a VET
18
accredited course--on the day after the day on which
19
the VET accredited course's previous accreditation
20
expired; or
21
(ii) in any other case--on the day specified in a written
22
notice given to the applicant; and
23
(b) subject to subsection (2), expires at the end of the period
24
determined by the National VET Regulator, unless the
25
accreditation of the VET accredited course is cancelled
26
before that time.
27
(2) The National VET Regulator may, in exceptional circumstances,
28
extend the period for which a VET accredited course is accredited
29
without the person in respect of whom the course is accredited
30
needing to apply for the accreditation of the course to be renewed.
31
(3) If the accreditation of a VET accredited course is so extended, a
32
reference in this Act to the period for which a course is accredited
33
is to be read as a reference to that period as so extended.
34
Part 3 Accreditation of courses
Division 2 Conditions of accreditation
Section 47
40 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 2--Conditions of accreditation
1
47 Complying with conditions
2
A person must comply with any conditions imposed on the
3
accreditation of a VET accredited course under subsection 48(1).
4
Note:
Failure to comply with a condition is a contravention of a civil penalty
5
provision, see section 130.
6
48 Conditions
7
(1) The National VET Regulator may impose conditions on the
8
accreditation of a VET accredited course. Such conditions need not
9
be imposed at the time of the course's accreditation.
10
(2) The National VET Regulator may vary a condition imposed under
11
subsection (1).
12
49 National VET Regulator to notify relevant person of change in
13
conditions of accreditation
14
The National VET Regulator must, within 30 days of its decision
15
to impose or vary a condition on the accreditation of a VET
16
accredited course, notify the person in respect of whom the course
17
is accredited, in writing, of:
18
(a) the decision; and
19
(b) the reasons for the decision; and
20
(c) the period for which the condition is imposed.
21
Note:
Details of conditions imposed on the accreditation of a VET
22
accredited course are included on the National Register, see
23
section 216.
24
25
Accreditation of courses Part 3
Renewing accreditation Division 3
Section 50
National Vocational Education and Training Regulator Bill 2010 No. , 2010 41
Division 3--Renewing accreditation
1
50 Renewal of accreditation
2
(1) The National VET Regulator may renew the accreditation of a
3
VET accredited course under section 44 if the person in respect of
4
whom the course is accredited makes an application for renewal:
5
(a) at least 90 days before the day accreditation of the course
6
expires; or
7
(b) within such shorter period as the Regulator allows.
8
(2) An application must be accompanied by the application fee
9
determined by the Minister, by legislative instrument, under
10
section 232.
11
(3) The accreditation of a VET accredited course is taken to continue
12
until the person's application is decided.
13
Part 3 Accreditation of courses
Division 4 Amending VET accredited courses
Section 51
42 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 4--Amending VET accredited courses
1
51 Amending VET accredited courses
2
(1) The National VET Regulator may, at any time while a VET
3
accredited course is accredited, amend the course if the Regulator
4
considers it necessary to do so.
5
(2) The National VET Regulator may take such action:
6
(a) on its own initiative; or
7
(b)
if:
8
(i) an application is made by the person in respect of whom
9
the VET accredited course is accredited; and
10
(ii) the Regulator is satisfied that it is appropriate to amend
11
the course.
12
(3) An application must be:
13
(a) in a form approved by the National VET Regulator; and
14
(b)
accompanied
by:
15
(i) any information or documents that the Regulator
16
requires; and
17
(ii) the application fee determined by the Minister, by
18
legislative instrument, under section 232.
19
20
Accreditation of courses Part 3
Cancelling accreditation Division 5
Section 52
National Vocational Education and Training Regulator Bill 2010 No. , 2010 43
Division 5--Cancelling accreditation
1
52 Cancelling accreditation
2
(1) The National VET Regulator may cancel the accreditation of a
3
VET accredited course.
4
(2) The National VET Regulator may take such action on its own
5
initiative if the Regulator is satisfied that:
6
(a) the VET accredited course does not meet:
7
(i) the Standards for VET Accredited Courses; or
8
(ii) the Australian Qualifications Framework; or
9
(b) the person in respect of whom the course is accredited no
10
longer has the capacity to satisfy the Standards for VET
11
Accredited Courses; or
12
(c) the person in respect of whom the course is accredited no
13
longer exists.
14
(3) The National VET Regulator may also take such action if:
15
(a) an application is made by the person in respect of whom the
16
VET accredited course is accredited; and
17
(b) the Regulator is satisfied that it is appropriate to cancel the
18
accreditation of the course.
19
(4) An application must be:
20
(a) in a form approved by the National VET Regulator; and
21
(b)
accompanied
by:
22
(i) any information or documents that the Regulator
23
requires; and
24
(ii) the application fee determined by the Minister, by
25
legislative instrument, under section 232.
26
53 National VET Regulator to notify relevant persons of proposed
27
cancellation
28
(1) If the National VET Regulator proposes to cancel the accreditation
29
of a VET accredited course, the Regulator must advise, in writing,
30
the following of the proposed cancellation:
31
Part 3 Accreditation of courses
Division 5 Cancelling accreditation
Section 54
44 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(a) each NVR registered training organisation that has the course
1
within its scope of registration;
2
(b) the VET Regulator of each non-referring State.
3
(2) Advice given under subsection (1) must state the day from which
4
the proposed cancellation is to take effect.
5
(3) Advice given under paragraph (1)(a) to an NVR registered training
6
organisation must also:
7
(a) advise the organisation how it is to treat VET students in the
8
VET accredited course; and
9
(b) if the proposed cancellation would affect any conditions
10
imposed on the organisation's registration under subsection
11
29(1)--state what conditions will be imposed on the
12
organisation's registration from the day the proposed
13
cancellation takes effect.
14
54 When cancellation takes effect
15
(1) Cancellation of the accreditation of a VET accredited course takes
16
effect on a day determined by the National VET Regulator.
17
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
18
Instruments Act 2003 do not apply to a determination (see sections 44
19
and 54 of that Act).
20
(2) However, the day determined by the National VET Regulator
21
must:
22
(a) be at least 30 days after advice is given to each affected
23
person, as required by section 53; and
24
(b) take into account the needs of all VET students affected by
25
the cancellation.
26
27
National VET Regulator's power to issue and cancel VET qualifications etc. Part 4
Issue of VET qualifications and VET statements of attainment Division 1
Section 55
National Vocational Education and Training Regulator Bill 2010 No. , 2010 45
Part 4--National VET Regulator's power to issue
1
and cancel VET qualifications etc.
2
Division 1--Issue of VET qualifications and VET
3
statements of attainment
4
55 National VET Regulator may issue VET qualifications and VET
5
statements of attainment
6
(1) The National VET Regulator may issue a VET qualification to a
7
person who is a current or former VET student if the Regulator is
8
satisfied, on reasonable grounds, that the person has successfully
9
completed the requirements of the qualification.
10
(2) The National VET Regulator may issue a VET statement of
11
attainment to a person in relation to units of competency or
12
modules of a VET course if the Regulator is satisfied, on
13
reasonable grounds, that the person has successfully completed the
14
requirements of the units of competency or modules of the VET
15
course.
16
(3) The National VET Regulator may only issue a VET qualification
17
or VET statement of attainment in relation to an NVR registered
18
training organisation in exceptional circumstances.
19
(4) The National VET Regulator may issue a VET qualification or
20
VET statement of attainment in relation to a former registered
21
training organisation at any time.
22
(5) To avoid doubt, subsection (3) may apply in relation to a time
23
when an organisation was not an NVR registered training
24
organisation.
25
26
Part 4 National VET Regulator's power to issue and cancel VET qualifications etc.
Division 2 Cancellation of VET qualifications and VET statements of attainment
Section 56
46 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 2--Cancellation of VET qualifications and VET
1
statements of attainment
2
Subdivision A--Cancellation
3
56 National VET Regulator may cancel VET qualifications and VET
4
statements of attainment
5
(1) The National VET Regulator may cancel a VET qualification or
6
VET statement of attainment issued to a person by an NVR
7
registered training organisation or former registered training
8
organisation if the Regulator is satisfied on reasonable grounds
9
that:
10
(a) the organisation did not provide, or arrange for another
11
person to provide, all or part of the assessment necessary for
12
the person to achieve the learning outcomes or competencies
13
required for:
14
(i) the qualification; or
15
(ii) the units of competency or modules specified in the
16
statement; or
17
(b) the qualification or statement was issued by the organisation:
18
(i) in error; or
19
(ii) because of a document or representation that was false
20
or misleading, or was obtained or made in any other
21
improper way; or
22
(c) it was outside the organisation's scope of registration to issue
23
the qualification or statement to the person; or
24
(d) it is appropriate, in all the circumstances, because of action
25
the Regulator has taken, or is taking, in relation to:
26
(i) the VET course, or part of the VET course, to which the
27
qualification relates; or
28
(ii) the organisation, in respect of the VET course, or part of
29
the VET course, to which the qualification relates; or
30
(iii) part of the VET course to which the statement relates; or
31
(iv) the organisation, in respect of part of the VET course to
32
which the statement relates.
33
National VET Regulator's power to issue and cancel VET qualifications etc. Part 4
Cancellation of VET qualifications and VET statements of attainment Division 2
Section 57
National Vocational Education and Training Regulator Bill 2010 No. , 2010 47
(2) However, the National VET Regulator may only take action under
1
subsection (1) in relation to an NVR registered training
2
organisation if:
3
(a) the Regulator gives the organisation a written direction
4
requiring the organisation to:
5
(i) cancel the VET qualification or VET statement of
6
attainment; and
7
(ii) notify the person concerned, in writing, of the
8
cancellation;
9
within a period specified in the direction; and
10
(b) the organisation fails to comply with the direction within the
11
period specified in the direction.
12
(3) To avoid doubt, if an NVR registered training organisation has
13
been given a written direction under paragraph (2)(a), the
14
organisation may cancel the relevant VET qualification or VET
15
statement of attainment even if the organisation's scope of
16
registration no longer allows the organisation to issue the
17
qualification or statement.
18
(4) The National VET Regulator may take action under subsection (1)
19
in relation to a former registered training organisation at any time.
20
57 National VET Regulator to notify person concerned of proposed
21
cancellation
22
(1) Before the National VET Regulator cancels a person's VET
23
qualification or VET statement of attainment, the Regulator must
24
give the person a written notice:
25
(a) stating that the Regulator intends to cancel the person's
26
qualification or statement and the reasons for the proposed
27
cancellation; and
28
(b) inviting the person to give the Regulator a written response to
29
the notice:
30
(i) if the Regulator considers that the circumstances require
31
urgent action--within a period specified in the notice,
32
which must be at least 24 hours; or
33
(ii) in any other case--within a period specified in the
34
notice, which must be at least 14 days.
35
Part 4 National VET Regulator's power to issue and cancel VET qualifications etc.
Division 2 Cancellation of VET qualifications and VET statements of attainment
Section 58
48 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(2) If the National VET Regulator is unable to give notice to a person
1
personally, the Regulator may give a notice mentioned in
2
subparagraph (1)(b)(ii) in any other way it considers appropriate,
3
including by:
4
(a) publishing the notice on its website; or
5
(b) publishing the notice in:
6
(i) a national daily newspaper that circulates throughout
7
Australia; and
8
(ii) a regional daily newspaper of the State or Territory in
9
which the person concerned is believed to reside.
10
Note:
See also section 28A of the Acts Interpretation Act 1901 (which deals
11
with service of documents).
12
(3) To avoid doubt, the National VET Regulator may not give a notice
13
mentioned in subparagraph (1)(b)(i) in a way mentioned in
14
subsection (2).
15
58 National VET Regulator's consideration of response
16
(1) After considering any response received within a period specified
17
in a notice, if the National VET Regulator still considers that the
18
VET qualification or VET statement of attainment should be
19
cancelled, the Regulator must cancel the qualification or statement.
20
(2) If the National VET Regulator cancels a VET qualification or VET
21
statement of attainment, the Regulator must:
22
(a) give the person concerned written notice of the decision; and
23
(b) require the person concerned to return the qualification or
24
statement to the Regulator:
25
(i) in the case of a notice mentioned in subparagraph
26
57(1)(b)(i)--within 7 days after the date of that notice;
27
or
28
(ii) in the case of a notice mentioned in subparagraph
29
57(1)(b)(ii)--within 30 days after the date of that notice
30
or within 30 days after the date the notice is published,
31
as the case requires.
32
National VET Regulator's power to issue and cancel VET qualifications etc. Part 4
Cancellation of VET qualifications and VET statements of attainment Division 2
Section 59
National Vocational Education and Training Regulator Bill 2010 No. , 2010 49
59 When cancellation takes effect
1
(1) Subject to subsection (2), the cancellation of a person's VET
2
qualification or VET statement of attainment takes effect:
3
(a) in the case of a notice mentioned in subparagraph
4
57(1)(b)(i)--7 days after the date of the notice; and
5
(b) in the case of a notice mentioned in subparagraph
6
57(1)(b)(ii)--30 days after the date of the notice or 30 days
7
after the date the notice is published, as the case requires.
8
(2)
If:
9
(a) a person has applied to the Administrative Appeals Tribunal
10
for review of the National VET Regulator's decision to
11
cancel the person's VET qualification or VET statement of
12
attainment within the relevant 30 day period, as mentioned in
13
subparagraph 58(2)(b)(ii); and
14
(b) the person notifies the Regulator, in writing, of that fact
15
within the relevant 30 day period; and
16
(c) the decision of the Tribunal affirms the National VET
17
Regulator's cancellation decision;
18
cancellation of the qualification or statement takes effect when the
19
appeal is finally determined or otherwise disposed of.
20
Subdivision B--Civil penalties
21
60 Civil penalty--failure to return VET qualification or VET
22
statement of attainment
23
(1) A person contravenes this subsection if:
24
(a) the person is given a notice as mentioned in subparagraph
25
57(1)(b)(i); and
26
(b) the person fails to return his or her VET qualification or VET
27
statement of attainment to the National VET Regulator
28
within 7 days after the date of the notice mentioned in that
29
subparagraph.
30
Civil penalty:
100 penalty units.
31
(2) A person contravenes this subsection if:
32
Part 4 National VET Regulator's power to issue and cancel VET qualifications etc.
Division 2 Cancellation of VET qualifications and VET statements of attainment
Section 61
50 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(a) the person is given a notice as mentioned in subparagraph
1
57(1)(b)(ii) (other than in a way mentioned in subsection
2
57(2)); and
3
(b) the person fails to return his or her VET qualification or VET
4
statement of attainment to the National VET Regulator
5
within 30 days after the date of the notice.
6
Civil penalty:
100 penalty units.
7
(3) A person contravenes this subsection if:
8
(a) the National VET Regulator gives a notice in a way
9
mentioned in subsection 57(2); and
10
(b) the person to whom the notice relates is aware of it; and
11
(c) the person fails to return the VET qualification or VET
12
statement of attainment to the Regulator within 30 days after
13
the date the notice is published.
14
Civil penalty:
100 penalty units.
15
(4) A person contravenes this subsection if:
16
(a) the cancellation of a person's VET qualification or VET
17
statement of attainment takes effect as mentioned in
18
subsection 59(2); and
19
(b) the person fails to return the qualification or statement to the
20
National VET Regulator within 7 days after the day that
21
cancellation takes effect.
22
Civil penalty:
100 penalty units.
23
Exception
24
(5) Subsections (2) and (3) do not apply if paragraphs 59(2)(a) and (b)
25
apply.
26
61 Civil penalty--use of cancelled VET qualification or VET
27
statement of attainment
28
A person contravenes this section if:
29
(a) the person purports to hold a VET qualification or VET
30
statement of attainment; and
31
National VET Regulator's power to issue and cancel VET qualifications etc. Part 4
Cancellation of VET qualifications and VET statements of attainment Division 2
Section 61
National Vocational Education and Training Regulator Bill 2010 No. , 2010 51
(b) the qualification or statement has been cancelled.
1
Civil penalty:
240 penalty units.
2
3
Part 5 Investigative powers
Division 1 Requiring people to give information and produce documents or things
Section 62
52 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Part 5--Investigative powers
1
Division 1--Requiring people to give information and
2
produce documents or things
3
Subdivision A--Requests by National VET Regulator
4
62 Request to person who is, or was, connected with a registered
5
training organisation
6
(1) For the purposes of this Act, the National VET Regulator may
7
request a person who is, or was, connected with an NVR registered
8
training organisation or former registered training organisation:
9
(a) to give the Regulator the information specified in the request;
10
or
11
(b) to produce to the Regulator the documents or things specified
12
in the request;
13
if the Regulator has reason to believe that the person is capable of
14
giving the information or producing the documents or things.
15
(2) The National VET Regulator may require that information to be
16
provided under paragraph (1)(a) is to be provided in writing.
17
(3) The National VET Regulator's request must:
18
(a) be served on the person; and
19
(b) be in writing and signed by the Chief Commissioner; and
20
(c) specify the period within which the person must comply with
21
the request.
22
(4) The period specified under paragraph (3)(c) must be at least 14
23
days after the notice is served on the person, or within such shorter
24
period (but not less than 24 hours) as the National VET Regulator
25
considers reasonably necessary.
26
(5)
The
person
must:
27
(a) give the information; or
28
(b) produce the documents or things;
29
within the time specified in the request, or within such further time
30
as the National VET Regulator allows.
31
Investigative powers Part 5
Requiring people to give information and produce documents or things Division 1
Section 63
National Vocational Education and Training Regulator Bill 2010 No. , 2010 53
Note:
Failure to comply with a request is an offence, see section 64.
1
63 National VET Regulator may retain documents and things
2
(1) If a document or thing is produced to the National VET Regulator
3
in accordance with a request under section 62, the Regulator:
4
(a) may take possession of, and may make copies of, the
5
document or thing, or take extracts from the document; and
6
(b) may retain possession of the document or thing for such
7
period as is necessary:
8
(i) for the purposes of this Act; or
9
(ii) for the purposes of an investigation to which the
10
document or thing relates; or
11
(iii) to enable evidence to be secured for the purposes of a
12
prosecution or civil penalty proceedings.
13
(2) While the National VET Regulator retains the document or thing,
14
the Regulator must allow a person who would otherwise be entitled
15
to inspect the document or view the thing to do so at the times that
16
the person would ordinarily be able to do so.
17
Subdivision B--Offence and related provisions
18
64 Failure to comply with National VET Regulator's request
19
A person commits an offence if:
20
(a) the person is given a request under section 62; and
21
(b) the person fails to comply with the request.
22
Penalty: 30 penalty units.
23
65 Self-incrimination etc.
24
(1) A person is not excused from:
25
(a) giving information; or
26
(b) producing a document or thing;
27
when requested to do so under section 62 on the ground that doing
28
so might tend to incriminate the person or expose the person to a
29
penalty.
30
Part 5 Investigative powers
Division 1 Requiring people to give information and produce documents or things
Section 65
54 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(2) However, in the case of an individual, none of the following:
1
(a) the information given;
2
(b) the document or thing produced;
3
(c) the giving of the information or the producing of the
4
document or thing;
5
(d) any information, document or thing obtained as a direct or
6
indirect consequence of giving the information or producing
7
the document or thing;
8
is admissible in evidence against the individual in:
9
(e) criminal proceedings, other than:
10
(i) proceedings for an offence against section 64; or
11
(ii) proceedings for an offence against section 137.1 or
12
137.2 of the Criminal Code (which deals with false or
13
misleading information or documents) that relates to
14
this Act; or
15
(iii) proceedings for an offence against section 149.1 of the
16
Criminal Code (which deals with obstruction of
17
Commonwealth public officials) that relates to this Act;
18
and
19
(f) civil proceedings for a contravention of a civil penalty
20
provision.
21
22
Investigative powers Part 5
Searches of premises Division 2
Section 66
National Vocational Education and Training Regulator Bill 2010 No. , 2010 55
Division 2--Searches of premises
1
Subdivision A--Exercising monitoring or enforcement powers
2
66 Authorised officer may enter premises by consent or under a
3
warrant
4
(1) For the purpose of finding out whether this Act has been, or is
5
being, complied with or assessing the correctness of information
6
provided under this Act, an authorised officer may:
7
(a) enter any premises; and
8
(b) exercise the monitoring powers set out in section 67.
9
(2) If an authorised officer has reasonable grounds for suspecting that
10
there may be evidential material on any premises, the authorised
11
officer may:
12
(a) enter the premises; and
13
(b) exercise the enforcement powers set out in section 68.
14
(3) However, an authorised officer is not authorised to enter the
15
premises under this section unless:
16
(a) the occupier of the premises has consented to the entry and
17
the authorised officer has shown his or her identity card if
18
required by the occupier; or
19
(b) the entry is made under a warrant.
20
Note:
If entry to the premises is with the occupier's consent, the authorised
21
officer must leave the premises if the consent ceases to have effect,
22
see section 72.
23
67 Monitoring powers of authorised officers
24
(1) The following are the monitoring powers that an authorised officer
25
may exercise in relation to premises under section 66:
26
(a) the power to search the premises and any thing on the
27
premises;
28
(b) the power to examine any activity conducted on the premises;
29
(c) the power to inspect, examine, take measurements of or
30
conduct tests on any thing on the premises;
31
Part 5 Investigative powers
Division 2 Searches of premises
Section 67
56 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(d) the power to make any still or moving image or any
1
recording of the premises or any thing on the premises;
2
(e) the power to inspect any document on the premises;
3
(f) the power to take extracts from, or make copies of, any such
4
document;
5
(g) the power to take onto the premises such equipment and
6
materials as the authorised officer requires for the purpose of
7
exercising powers in relation to the premises;
8
(h) the powers set out in subsections (2), (3) and (5).
9
Operating electronic equipment
10
(2)
The
monitoring powers include the power to operate electronic
11
equipment on the premises to see whether:
12
(a) the equipment; or
13
(b) a disk, tape or other storage device that:
14
(i) is on the premises; and
15
(ii) can be used with the equipment or is associated with it;
16
contains information that is relevant to determining whether there
17
has been compliance with this Act or to assessing the correctness
18
of information provided under this Act.
19
(3)
The
monitoring powers include the following powers in relation to
20
information described in subsection (2) found in the exercise of the
21
power under that subsection:
22
(a) the power to operate electronic equipment on the premises to
23
put the information in documentary form and remove the
24
documents so produced from the premises;
25
(b) the power to operate electronic equipment on the premises to
26
transfer the information to a disk, tape or other storage device
27
that:
28
(i) is brought to the premises for the exercise of the power;
29
or
30
(ii) is on the premises and the use of which for that purpose
31
has been agreed, in writing, by the occupier of the
32
premises;
33
and remove the disk, tape or other storage device from the
34
premises.
35
Investigative powers Part 5
Searches of premises Division 2
Section 67
National Vocational Education and Training Regulator Bill 2010 No. , 2010 57
(4) An authorised officer may operate electronic equipment as
1
mentioned in subsection (2) or (3) only if he or she believes on
2
reasonable grounds that the operation of the equipment can be
3
carried out without damage to the equipment.
4
Securing things if entry to premises is under a monitoring warrant
5
(5) If entry to the premises is under a monitoring warrant, the
6
monitoring powers include the power to secure a thing for a period
7
not exceeding 24 hours if:
8
(a) the thing is found during the exercise of monitoring powers
9
on the premises; and
10
(b) an authorised officer believes on reasonable grounds that the
11
thing affords evidence of:
12
(i) the commission of an offence against this Act or the
13
contravention of a civil penalty provision or both; or
14
(ii) an offence against the Crimes Act 1914 or the Criminal
15
Code that relates to this Act; and
16
(c) the authorised officer believes on reasonable grounds that:
17
(i) it is necessary to secure the thing in order to prevent it
18
from being concealed, lost or destroyed before a warrant
19
to seize the thing is obtained; and
20
(ii) the circumstances are serious and urgent.
21
(6) If an authorised officer believes on reasonable grounds that the
22
thing needs to be secured for more than 24 hours, he or she may
23
apply to a magistrate for an extension of that period.
24
(7) The authorised officer must give notice to the occupier of the
25
premises, or another person who apparently represents the
26
occupier, of his or her intention to apply for an extension. The
27
occupier or other person is entitled to be heard in relation to that
28
application.
29
(8) The provisions of this Division relating to the issue of monitoring
30
warrants apply, with such modifications as are necessary, to the
31
issue of an extension.
32
(9) The 24 hour period may be extended more than once.
33
Part 5 Investigative powers
Division 2 Searches of premises
Section 68
58 National Vocational Education and Training Regulator Bill 2010 No. , 2010
68 Enforcement powers of authorised officers
1
(1) The following are the enforcement powers that an authorised
2
officer may exercise in relation to premises under section 66:
3
(a) if entry to the premises is with the occupier's consent--the
4
power to search the premises and any thing on the premises
5
for the evidential material the authorised officer has
6
reasonable grounds for suspecting may be on the premises;
7
(b) if entry to the premises is under an enforcement warrant:
8
(i) the power to search the premises and any thing on the
9
premises for the kind of evidential material specified in
10
the warrant; and
11
(ii) the power to seize evidential material of that kind if the
12
authorised officer finds it on the premises;
13
(c) the power to inspect, examine, take measurements of,
14
conduct tests on or take samples of evidential material
15
referred to in paragraph (a) or (b);
16
(d) the power to make any still or moving image or any
17
recording of the premises or evidential material referred to in
18
paragraph (a) or (b);
19
(e) the power to take onto the premises such equipment and
20
materials as the authorised officer requires for the purpose of
21
exercising powers in relation to the premises;
22
(f) the powers set out in subsections (2), (3) and (6).
23
Powers relating to electronic equipment
24
(2)
The
enforcement powers include the power to operate electronic
25
equipment on the premises to see whether:
26
(a) the equipment; or
27
(b) a disk, tape or other storage device that:
28
(i) is on the premises; and
29
(ii) can be used with the equipment or is associated with it;
30
contains evidential material referred to in paragraph (1)(a) or (b).
31
(3)
The
enforcement powers include the following powers in relation
32
to evidential material described in subsection (2) found in the
33
exercise of the power under that subsection:
34
Investigative powers Part 5
Searches of premises Division 2
Section 68
National Vocational Education and Training Regulator Bill 2010 No. , 2010 59
(a) if entry to the premises is under an enforcement warrant--the
1
power to seize the equipment and the disk, tape or other
2
storage device referred to in that subsection;
3
(b) the power to operate electronic equipment on the premises to
4
put the evidential material in documentary form and remove
5
the documents so produced from the premises;
6
(c) the power to operate electronic equipment on the premises to
7
transfer the evidential material to a disk, tape or other storage
8
device that:
9
(i) is brought to the premises for the exercise of the power;
10
or
11
(ii) is on the premises and the use of which for that purpose
12
has been agreed, in writing, by the occupier of the
13
premises;
14
and remove the disk, tape or other storage device from the
15
premises.
16
(4) An authorised officer may operate electronic equipment as
17
mentioned in subsection (2) or (3) only if he or she believes on
18
reasonable grounds that the operation of the equipment can be
19
carried out without damage to the equipment.
20
(5) An authorised officer may seize equipment or a disk, tape or other
21
storage device as mentioned in paragraph (3)(a) only if:
22
(a) it is not practicable to put the evidential material in
23
documentary form as mentioned in paragraph (3)(b) or to
24
transfer the evidential material as mentioned in
25
paragraph (3)(c); or
26
(b) possession of the equipment or the disk, tape or other storage
27
device by the occupier could constitute an offence against a
28
law of the Commonwealth.
29
Seizing other evidential material
30
(6)
If:
31
(a) entry to the premises is under an enforcement warrant; and
32
(b) the authorised officer, in the course of searching for the kind
33
of evidential material specified in the warrant, finds a thing
34
Part 5 Investigative powers
Division 2 Searches of premises
Section 69
60 National Vocational Education and Training Regulator Bill 2010 No. , 2010
that the authorised officer believes on reasonable grounds to
1
be other evidential material; and
2
(c) the authorised officer believes on reasonable grounds that it
3
is necessary to seize the thing in order to prevent its
4
concealment, loss or destruction;
5
then the enforcement powers include seizing the thing.
6
69 Persons assisting authorised officers
7
Authorised officers may be assisted by other persons
8
(1) An authorised officer may, in entering premises under section 66
9
and in exercising monitoring powers or enforcement powers in
10
relation to the premises, be assisted by other persons if that
11
assistance is necessary and reasonable. A person giving such
12
assistance is a person assisting the authorised officer.
13
Powers of a person assisting the authorised officer
14
(2) A person assisting the authorised officer may:
15
(a) enter the premises; and
16
(b) exercise monitoring powers or enforcement powers in
17
relation to the premises, but only in accordance with a
18
direction given to the person by the authorised officer.
19
(3) A power exercised by a person assisting the authorised officer as
20
mentioned in subsection (2) is taken for all purposes to have been
21
exercised by the authorised officer.
22
(4) If a direction is given under paragraph (2)(b) in writing, the
23
direction is not a legislative instrument.
24
70 Use of force in executing a warrant
25
In executing a warrant, an authorised officer executing the warrant
26
and a person assisting the authorised officer may use such force
27
against things as is necessary and reasonable in the circumstances.
28
Investigative powers Part 5
Searches of premises Division 2
Section 71
National Vocational Education and Training Regulator Bill 2010 No. , 2010 61
71 Authorised officer may ask questions and seek production of
1
documents
2
(1) If an authorised officer is authorised to enter premises because the
3
occupier of the premises consented to the entry, the authorised
4
officer may ask the occupier to:
5
(a) answer any questions relating to:
6
(i) the operation of this Act; or
7
(ii) information provided under this Act; or
8
(iii) the reasons for the authorised officer entering the
9
premises;
10
that are put by the authorised officer; and
11
(b) produce any document relating to:
12
(i) the operation of this Act; or
13
(ii) information provided under this Act; or
14
(iii) the reasons for the authorised officer entering the
15
premises;
16
that is requested by the authorised officer.
17
(2) If an authorised officer is authorised to enter premises under a
18
warrant, the authorised officer may require any person on the
19
premises to:
20
(a) answer any questions relating to:
21
(i) the operation of this Act; or
22
(ii) information provided under this Act; or
23
(iii) the reasons for the authorised officer entering the
24
premises;
25
that are put by the authorised officer; and
26
(b) produce any document relating to:
27
(i) the operation of this Act; or
28
(ii) information provided under this Act; or
29
(iii) the reasons for the authorised officer entering the
30
premises;
31
that is requested by the authorised officer.
32
Part 5 Investigative powers
Division 2 Searches of premises
Section 72
62 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Offence
1
(3) A person commits an offence if:
2
(a) the person is subject to a requirement under subsection (2);
3
and
4
(b) the person fails to comply with the requirement.
5
Penalty for contravention of this subsection: 30 penalty units.
6
Subdivision B--Obligations and incidental powers of
7
authorised officers
8
72 Consent
9
(1) An authorised officer must, before obtaining the consent of an
10
occupier of premises for the purposes of paragraph 66(3)(a),
11
inform the occupier that the occupier may refuse consent.
12
(2) A consent has no effect unless the consent is voluntary.
13
(3) A consent may be expressed to be limited to entry during a
14
particular period. If so, the consent has effect for that period unless
15
the consent is withdrawn before the end of that period.
16
(4) A consent that is not limited as mentioned in subsection (3) has
17
effect until the consent is withdrawn.
18
(5) If an authorised officer entered premises because of the consent of
19
the occupier of the premises, the authorised officer, and any person
20
assisting the authorised officer, must leave the premises if the
21
consent ceases to have effect.
22
73 Announcement before entry under warrant
23
(1) An authorised officer must, before entering premises under a
24
warrant:
25
(a) announce that he or she is authorised to enter the premises;
26
and
27
(b) show his or her identity card to the occupier of the premises,
28
or to another person who apparently represents the occupier,
29
if the occupier or other person is present at the premises; and
30
Investigative powers Part 5
Searches of premises Division 2
Section 74
National Vocational Education and Training Regulator Bill 2010 No. , 2010 63
(c) give any person at the premises an opportunity to allow entry
1
to the premises.
2
(2) However, an authorised officer is not required to comply with
3
subsection (1) if he or she believes on reasonable grounds that
4
immediate entry to the premises is required to ensure that the
5
effective execution of the warrant is not frustrated.
6
(3)
If:
7
(a) an authorised officer does not comply with subsection (1)
8
because of subsection (2); and
9
(b) the occupier of the premises, or another person who
10
apparently represents the occupier, is present at the premises;
11
the authorised officer must, as soon as practicable after entering the
12
premises, show his or her identity card to the occupier or other
13
person.
14
74 Authorised officer to be in possession of warrant
15
Monitoring warrant
16
(1) If a monitoring warrant is being executed in relation to premises,
17
an authorised officer executing the warrant must be in possession
18
of the warrant or a copy of the warrant.
19
Enforcement warrant
20
(2) If an enforcement warrant is being executed in relation to premises,
21
an authorised officer executing the warrant must be in possession
22
of:
23
(a) the warrant issued by the magistrate under section 86 or a
24
copy of the warrant as so issued; or
25
(b) the form of warrant completed under subsection 87(6) or a
26
copy of the form as so completed.
27
75 Details of warrant etc. to be given to occupier
28
If:
29
(a) a warrant is being executed in relation to premises; and
30
Part 5 Investigative powers
Division 2 Searches of premises
Section 76
64 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(b) the occupier of the premises, or another person who
1
apparently represents the occupier, is present at the premises;
2
an authorised officer executing the warrant must, as soon as
3
practicable:
4
(c) do one of the following:
5
(i) if the warrant was issued under section 85 or 86--make
6
a copy of the warrant available to the occupier or other
7
person (which need not include the signature of the
8
magistrate who issued it);
9
(ii) if the warrant was signed under section 87--make a
10
copy of the form of warrant completed under subsection
11
87(6) available to the occupier or other person; and
12
(d) inform the occupier or other person of the rights and
13
responsibilities of the occupier or other person under this
14
Division.
15
76 Expert assistance to operate electronic equipment
16
(1) This section applies to premises to which a warrant relates.
17
Monitoring powers
18
(2) If entry to the premises is under a monitoring warrant and an
19
authorised officer believes on reasonable grounds that:
20
(a) there is on the premises information relevant to:
21
(i) determining whether there has been compliance with
22
this Act; or
23
(ii) assessing the correctness of information provided under
24
this Act;
25
that may be accessible by operating electronic equipment on
26
the premises; and
27
(b) expert assistance is required to operate the equipment; and
28
(c) if he or she does not take action under this subsection, the
29
information may be destroyed, altered or otherwise interfered
30
with;
31
he or she may do whatever is necessary to secure the equipment,
32
whether by locking it up, placing a guard or other means.
33
Investigative powers Part 5
Searches of premises Division 2
Section 76
National Vocational Education and Training Regulator Bill 2010 No. , 2010 65
Enforcement powers
1
(3) If entry to the premises is under an enforcement warrant and an
2
authorised officer believes on reasonable grounds that:
3
(a) there is on the premises evidential material of the kind
4
specified in the warrant that may be accessible by operating
5
electronic equipment on the premises; and
6
(b) expert assistance is required to operate the equipment; and
7
(c) if he or she does not take action under this subsection, the
8
evidential material may be destroyed, altered or otherwise
9
interfered with;
10
he or she may do whatever is necessary to secure the equipment,
11
whether by locking it up, placing a guard, or otherwise.
12
Notice to occupier
13
(4) The authorised officer must give notice to the occupier of the
14
premises, or another person who apparently represents the
15
occupier, of his or her intention to secure the equipment under
16
subsection (2) or (3) and of the fact that the equipment may be
17
secured for up to 24 hours.
18
Period equipment may be secured
19
(5) The equipment may be secured:
20
(a) until the 24 hour period ends; or
21
(b) until the equipment has been operated by the expert;
22
whichever happens first.
23
Extensions
24
(6) If an authorised officer believes on reasonable grounds that the
25
equipment needs to be secured for more than 24 hours, he or she
26
may apply to a magistrate for an extension of that period.
27
(7) The authorised officer must give notice to the occupier of the
28
premises, or another person who apparently represents the
29
occupier, of his or her intention to apply for an extension. The
30
occupier or other person is entitled to be heard in relation to that
31
application.
32
Part 5 Investigative powers
Division 2 Searches of premises
Section 77
66 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(8) The provisions of this Division relating to the issue of monitoring
1
warrants or enforcement warrants apply, with such modifications
2
as are necessary, to the issue of an extension.
3
(9) The 24 hour period may be extended more than once.
4
77 Compensation for damage to electronic equipment
5
(1) This section applies if:
6
(a) as a result of electronic equipment being operated as
7
mentioned in this Division:
8
(i) damage is caused to the equipment; or
9
(ii) the data recorded on the equipment is damaged; or
10
(iii) programs associated with the use of the equipment, or
11
with the use of the data, are damaged or corrupted; and
12
(b) the damage or corruption occurs because:
13
(i) insufficient care was exercised in selecting the person
14
who was to operate the equipment; or
15
(ii) insufficient care was exercised by the person operating
16
the equipment.
17
(2) The Commonwealth must pay the owner of the equipment, or the
18
user of the data or programs, such reasonable compensation for the
19
damage or corruption as the Commonwealth and the owner or user
20
agree on.
21
(3) However, if the owner or user and the Commonwealth fail to
22
agree, the owner or user may institute proceedings in the Federal
23
Court for such reasonable amount of compensation as the Federal
24
Court determines.
25
(4) In determining the amount of compensation payable, regard is to
26
be had to whether the occupier of the premises, or the occupier's
27
employees and agents, if they were available at the time, provided
28
any appropriate warning or guidance on the operation of the
29
equipment.
30
(5) In this section:
31
damage, in relation to data, includes damage by erasure of data or
32
addition of other data.
33
Investigative powers Part 5
Searches of premises Division 2
Section 78
National Vocational Education and Training Regulator Bill 2010 No. , 2010 67
Subdivision C--Occupier's rights and responsibilities
1
78 Occupier entitled to observe execution of warrant
2
(1)
If:
3
(a) a warrant is being executed in relation to premises; and
4
(b) the occupier of the premises, or another person who
5
apparently represents the occupier, is present at the premises;
6
the occupier or other person is entitled to observe the execution of
7
the warrant.
8
(2) The right to observe the execution of the warrant ceases if the
9
occupier or other person impedes that execution.
10
(3) This section does not prevent the execution of the warrant in 2 or
11
more areas of the premises at the same time.
12
79 Occupier to provide authorised officer with facilities and
13
assistance
14
(1) The occupier of premises to which a warrant relates, or another
15
person who apparently represents the occupier, must provide:
16
(a) an authorised officer executing the warrant; and
17
(b) any person assisting the authorised officer;
18
with all reasonable facilities and assistance for the effective
19
exercise of their powers.
20
(2) A person commits an offence if:
21
(a) the person is subject to subsection (1); and
22
(b) the person fails to comply with that subsection.
23
Penalty for contravention of this subsection: 30 penalty units.
24
Subdivision D--General provisions relating to seizure
25
80 Copies of seized things to be provided
26
(1) If an enforcement warrant is being executed and an authorised
27
officer seizes:
28
Part 5 Investigative powers
Division 2 Searches of premises
Section 81
68 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(a) a document, film, computer file or other thing that can be
1
readily copied; or
2
(b) a storage device, the information in which can be readily
3
copied;
4
the authorised officer must, if requested to do so by the occupier of
5
the premises, or another person who apparently represents the
6
occupier and who is present when the warrant is executed, give a
7
copy of the thing or the information to the occupier or other person
8
as soon as practicable after the seizure.
9
(2) However, subsection (1) does not apply if possession of the
10
document, film, computer file, thing or information by the occupier
11
or other person could constitute an offence against a law of the
12
Commonwealth.
13
81 Receipts for things seized
14
(1) If a thing is seized under this Division, an authorised officer must
15
provide a receipt for the thing.
16
(2) If 2 or more things are seized, they may be covered in the one
17
receipt.
18
82 Return of seized things
19
(1) Subject to any contrary order of a court, if an authorised officer
20
seizes a thing under this Division, an authorised officer must take
21
reasonable steps to return it if:
22
(a) the reason for its seizure no longer exists or it is decided that
23
it is not to be used in evidence; or
24
(b) the period of 60 days after its seizure ends;
25
whichever happens first, unless the thing is forfeited or forfeitable
26
to the Commonwealth or is the subject of a dispute as to
27
ownership.
28
(2) If, apart from this subsection, an authorised officer would be
29
required to take reasonable steps to return a thing under
30
subsection (1) because of paragraph (1)(b), the authorised officer is
31
not required to do so if:
32
Investigative powers Part 5
Searches of premises Division 2
Section 83
National Vocational Education and Training Regulator Bill 2010 No. , 2010 69
(a) proceedings in respect of which the thing may afford
1
evidence were instituted before the end of the 60 days and
2
have not been completed (including an appeal to a court in
3
relation to those proceedings); or
4
(b) the thing may continue to be retained because of an order
5
under section 83; or
6
(c) the Commonwealth, the National VET Regulator or an
7
authorised officer is otherwise authorised (by a law, or an
8
order of a court, of the Commonwealth or of a State or
9
Territory) to retain, destroy, dispose of or otherwise deal with
10
the thing.
11
(3) A thing that is required to be returned under this section must be
12
returned to the person from whom it was seized (or to the owner if
13
that person is not entitled to possess it).
14
83 Magistrate may permit a thing to be retained
15
(1) An authorised officer may apply to a magistrate for an order
16
permitting the retention of the thing for a further period if:
17
(a) before the end of 60 days after the seizure; or
18
(b) before the end of a period previously specified in an order of
19
a magistrate under this section;
20
proceedings in respect of which the thing may afford evidence
21
have not commenced.
22
(2) If the magistrate is satisfied that it is necessary for the thing to
23
continue to be retained:
24
(a) for the purposes of an investigation in respect of:
25
(i) an offence against this Act or an offence against the
26
Crimes Act 1914 or the Criminal Code that relates to
27
this Act; or
28
(ii) a contravention of a civil penalty provision; or
29
(iii) both an offence mentioned in subparagraph (i) and a
30
civil penalty provision; or
31
(b) to enable evidence of an offence mentioned in paragraph (a)
32
or a civil penalty provision to be secured for the purposes of
33
a prosecution, civil penalty proceedings or both;
34
Part 5 Investigative powers
Division 2 Searches of premises
Section 84
70 National Vocational Education and Training Regulator Bill 2010 No. , 2010
the magistrate may order that the thing may continue to be retained
1
for a period specified in the order (which must not exceed 3 years).
2
(3) Before making the application, the authorised officer must:
3
(a) take reasonable steps to discover who has an interest in the
4
retention of the thing; and
5
(b) if it is practicable to do so, notify each person whom the
6
authorised officer believes to have such an interest of the
7
proposed application.
8
84 Disposal of things
9
If:
10
(a) a thing is seized under this Division; and
11
(b) apart from this section, an authorised officer would be
12
required to take reasonable steps to return the thing to a
13
person; and
14
(c)
either:
15
(i) the authorised officer cannot, despite making reasonable
16
efforts, locate the person; or
17
(ii) the person has refused to take possession of the thing;
18
the National VET Regulator may dispose of the thing in such
19
manner as the Regulator considers appropriate.
20
Note:
If the operation of this section would result in an acquisition of
21
property otherwise than on just terms, see section 234.
22
Subdivision E--Warrants
23
85 Monitoring warrants
24
Application for warrant
25
(1) An authorised officer may apply to a magistrate for a warrant
26
under this section in relation to premises.
27
Issue of warrant
28
(2) The magistrate may issue the warrant if the magistrate is satisfied,
29
by information on oath or affirmation, that it is reasonably
30
Investigative powers Part 5
Searches of premises Division 2
Section 85
National Vocational Education and Training Regulator Bill 2010 No. , 2010 71
necessary that one or more authorised officers should have access
1
to the premises for the purpose of:
2
(a) determining whether this Act has been, or is being, complied
3
with; or
4
(b) assessing the correctness of information provided under this
5
Act.
6
(3) However, the magistrate must not issue the warrant unless the
7
authorised officer or some other person has given to the magistrate,
8
either orally or by affidavit, such further information (if any) as the
9
magistrate requires concerning the grounds on which the issue of
10
the warrant is being sought.
11
Content of warrant
12
(4)
The
warrant
must:
13
(a) describe the premises to which the warrant relates; and
14
(b) state that the warrant is issued under this section; and
15
(c) state that the warrant is issued for the purpose of:
16
(i) determining whether this Act has been, or is being,
17
complied with; or
18
(ii) assessing the correctness of information provided under
19
this Act; and
20
(d) authorise one or more authorised officers (whether or not
21
named in the warrant) from time to time while the warrant
22
remains in force:
23
(i) to enter the premises; and
24
(ii) to exercise the powers set out in Subdivisions A and B
25
of this Division in relation to the premises; and
26
(e) state whether the entry is authorised to be made at any time
27
of the day or during specified hours of the day; and
28
(f) specify the day (not more than 6 months after the issue of the
29
warrant) on which the warrant ceases to be in force.
30
Part 5 Investigative powers
Division 2 Searches of premises
Section 86
72 National Vocational Education and Training Regulator Bill 2010 No. , 2010
86 Issue of enforcement warrants
1
Application for warrant
2
(1) An authorised officer may apply to a magistrate for a warrant
3
under this section in relation to premises.
4
Issue of warrant
5
(2) The magistrate may issue the warrant if the magistrate is satisfied,
6
by information on oath or affirmation, that there are reasonable
7
grounds for suspecting that there is, or there may be within the next
8
72 hours, evidential material on the premises.
9
(3) However, the magistrate must not issue the warrant unless the
10
authorised officer or some other person has given to the magistrate,
11
either orally or by affidavit, such further information (if any) as the
12
magistrate requires concerning the grounds on which the issue of
13
the warrant is being sought.
14
Content of warrant
15
(4)
The
warrant
must:
16
(a) describe the premises to which the warrant relates; and
17
(b) state that the warrant is issued under this section; and
18
(c) specify the kind of evidential material that is to be searched
19
for under the warrant; and
20
(d) name one or more authorised officers; and
21
(e) authorise the authorised officer or authorised officers so
22
named:
23
(i) to enter the premises; and
24
(ii) to exercise the powers set out in Subdivisions A, B and
25
D of this Division in relation to the premises; and
26
(f) state whether the entry is authorised to be made at any time
27
of the day or during specified hours of the day; and
28
(g) specify the day (not more than one week after the issue of the
29
warrant) on which the warrant ceases to be in force.
30
Investigative powers Part 5
Searches of premises Division 2
Section 87
National Vocational Education and Training Regulator Bill 2010 No. , 2010 73
87 Enforcement warrants by telephone, fax etc.
1
Application for warrant
2
(1) An authorised officer may apply to a magistrate by telephone, fax
3
or other electronic means for a warrant under section 86 in relation
4
to premises:
5
(a) in an urgent case; or
6
(b) if the authorised officer believes, on reasonable grounds, that
7
the delay that would occur if an application were made in
8
person would frustrate the effective execution of the warrant.
9
Voice communication
10
(2) The magistrate may require communication by voice to the extent
11
that it is practicable in the circumstances.
12
Information
13
(3) Before applying for the warrant, the authorised officer must
14
prepare information (of the kind mentioned in subsection 86(2)) in
15
relation to the premises that sets out the grounds on which the
16
warrant is sought. If it is necessary to do so, the authorised officer
17
may apply for the warrant before the information is sworn or
18
affirmed.
19
Signing of warrant
20
(4) If the magistrate is satisfied:
21
(a) after considering the terms of the information; and
22
(b) after receiving such further information (if any) as the
23
magistrate requires concerning the grounds on which the
24
issue of the warrant is being sought;
25
that there are reasonable grounds for issuing the warrant, the
26
magistrate may complete and sign the same warrant that the
27
magistrate would issue under section 86 if the application had been
28
made under that section.
29
Part 5 Investigative powers
Division 2 Searches of premises
Section 87
74 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Informing authorised officer
1
(5) If the magistrate completes and signs the warrant, the magistrate
2
must inform the authorised officer, by telephone, fax or other
3
electronic means, of:
4
(a) the terms of the warrant; and
5
(b) the day on which, and the time at which, the warrant was
6
signed.
7
Form of warrant
8
(6) The authorised officer must then complete a form of warrant in the
9
same terms as the warrant completed and signed by the magistrate,
10
stating on the form:
11
(a) the name of the magistrate; and
12
(b) the day on which, and the time at which, the warrant was
13
signed.
14
Completed form of warrant to be given to magistrate
15
(7) The authorised officer must also, not later than the day after the
16
day on which the warrant ceased to be in force or the day of
17
execution of the warrant, whichever is earlier, send to the
18
magistrate:
19
(a) the form of warrant completed by the authorised officer; and
20
(b) the information referred to in subsection (3), which must
21
have been duly sworn or affirmed.
22
Attachment
23
(8) The magistrate must attach to the documents provided under
24
subsection (7) the warrant signed by the magistrate.
25
Authority of warrant
26
(9) A form of warrant duly completed under subsection (6) is authority
27
for the same powers as are authorised by the warrant signed by the
28
magistrate.
29
(10)
If:
30
Investigative powers Part 5
Searches of premises Division 2
Section 88
National Vocational Education and Training Regulator Bill 2010 No. , 2010 75
(a) it is material, in any proceedings, for a court to be satisfied
1
that an exercise of a power was authorised by this section;
2
and
3
(b) the warrant signed by the magistrate authorising the exercise
4
of the power is not produced in evidence;
5
the court must assume, unless the contrary is proved, that the
6
exercise of the power was not authorised by such a warrant.
7
88 Offence relating to warrants by telephone, fax etc.
8
An authorised officer commits an offence if:
9
(a) the authorised officer states in a document that purports to be
10
a form of warrant under section 87 the name of a magistrate,
11
unless that magistrate signed the warrant; or
12
(b) the authorised officer states on a form of warrant under that
13
section a matter that, to the authorised officer's knowledge,
14
departs in a material particular from the terms of the warrant
15
signed by the magistrate under that section; or
16
(c) the authorised officer purports to execute, or present to
17
another person, a document that purports to be a form of
18
warrant under that section that the authorised officer knows:
19
(i) has not been approved by a magistrate under that
20
section; or
21
(ii) departs in a material particular from the terms of a
22
warrant signed by a magistrate under that section; or
23
(d) the authorised officer gives to a magistrate a form of warrant
24
under that section that is not the form of warrant that the
25
authorised officer purported to execute.
26
Penalty: Imprisonment for 2 years.
27
Subdivision F--Appointment of authorised officers and issue of
28
identity cards
29
89 Appointment of authorised officers
30
(1) The Chief Commissioner may, in writing, appoint a member of the
31
staff of the Regulator as an authorised officer for the purposes of
32
this Act.
33
Part 5 Investigative powers
Division 2 Searches of premises
Section 90
76 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(2) The Chief Commissioner must not appoint a person as an
1
authorised officer unless the Chief Commissioner is satisfied that
2
the person has suitable qualifications and experience to properly
3
exercise the powers of an authorised officer.
4
(3) An authorised officer must, in exercising powers as an authorised
5
officer, comply with any directions of the Chief Commissioner.
6
(4) If a direction is given under subsection (3) in writing, the direction
7
is not a legislative instrument.
8
90 Identity cards
9
(1) The Chief Commissioner must issue an identity card to an
10
authorised officer.
11
Form of identity card
12
(2) The identity card must:
13
(a) be in the form approved by the Chief Commissioner; and
14
(b) contain a recent photograph of the authorised officer.
15
Offence
16
(3) A person commits an offence if:
17
(a) the person has been issued with an identity card; and
18
(b) the person ceases to be an authorised officer; and
19
(c) the person does not, as soon as practicable after so ceasing,
20
return the identity card to the Chief Commissioner.
21
Penalty: 1 penalty unit.
22
(4) An offence against subsection (3) is an offence of strict liability.
23
Note:
For strict liability, see section 6.1 of the Criminal Code.
24
Defence: card lost or destroyed
25
(5) Subsection (3) does not apply if the identity card was lost or
26
destroyed.
27
Note:
A defendant bears an evidential burden in relation to the matter in this
28
subsection, see subsection 13.3(3) of the Criminal Code.
29
Investigative powers Part 5
Searches of premises Division 2
Section 91
National Vocational Education and Training Regulator Bill 2010 No. , 2010 77
Authorised officer must carry card
1
(6) An authorised officer must carry his or her identity card at all times
2
when exercising powers as an authorised officer.
3
Subdivision G--Powers of magistrates
4
91 Federal Magistrates--consent to nomination
5
(1) A Federal Magistrate may, by writing, consent to be nominated by
6
the Minister under subsection (2).
7
(2) The Minister may, by writing, nominate a Federal Magistrate in
8
relation to whom a consent is in force under subsection (1) to be a
9
magistrate for the purposes of this Act.
10
(3) A nomination under subsection (2) is not a legislative instrument.
11
92 Magistrates--personal capacity
12
Powers conferred personally
13
(1) A power conferred on a magistrate by this Division is conferred on
14
the magistrate:
15
(a) in a personal capacity; and
16
(b) not as a court or a member of a court.
17
Powers need not be accepted
18
(2) The magistrate (other than a Federal Magistrate) need not accept
19
the power conferred.
20
Protection and immunity
21
(3) A magistrate exercising a power conferred by this Division has the
22
same protection and immunity as if he or she were exercising the
23
power:
24
(a) as the court of which the magistrate is a member; or
25
(b) as a member of the court of which the magistrate is a
26
member.
27
28
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 93
78 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Part 6--Enforcement
1
Division 1--Offences and civil penalty provisions
2
Subdivision A--Conduct by NVR registered training
3
organisations
4
93 Offence--providing all or part of VET course outside scope of
5
registration
6
An NVR registered training organisation commits an offence if:
7
(a) the organisation provides all or part of a VET course; and
8
(b) the VET course, or part of the VET course, is not within the
9
organisation's scope of registration.
10
Penalty: 120 penalty units.
11
94 Civil penalty--providing all or part of VET course outside scope
12
of registration
13
An NVR registered training organisation contravenes this section
14
if:
15
(a) the organisation provides all or part of a VET course; and
16
(b) the VET course, or part of the VET course, is not within the
17
organisation's scope of registration.
18
Civil penalty:
240 penalty units.
19
95 Offence--issuing VET qualification outside scope of registration
20
An NVR registered training organisation commits an offence if:
21
(a) the organisation purports to issue a VET qualification; and
22
(b) the qualification relates to a VET course that is not within the
23
organisation's scope of registration.
24
Penalty: 300 penalty units.
25
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 96
National Vocational Education and Training Regulator Bill 2010 No. , 2010 79
96 Civil penalty--issuing VET qualification outside scope of
1
registration
2
An NVR registered training organisation contravenes this section
3
if:
4
(a) the organisation purports to issue a VET qualification; and
5
(b) the qualification relates to a VET course that is not within the
6
organisation's scope of registration.
7
Civil penalty:
600 penalty units.
8
97 Offence--issuing VET statement of attainment outside scope of
9
registration
10
An NVR registered training organisation commits an offence if:
11
(a) the organisation purports to issue a VET statement of
12
attainment; and
13
(b) the statement relates to part of a VET course that is not
14
within the organisation's scope of registration.
15
Penalty: 300 penalty units.
16
98 Civil penalty--issuing VET statement of attainment outside scope
17
of registration
18
An NVR registered training organisation contravenes this section
19
if:
20
(a) the organisation purports to issue a VET statement of
21
attainment; and
22
(b) the statement relates to part of a VET course that is not
23
within the organisation's scope of registration.
24
Civil penalty:
600 penalty units.
25
99 Offence--advertising all or part of VET course outside scope of
26
registration
27
An NVR registered training organisation commits an offence if:
28
(a)
the
organisation:
29
(i) publishes or broadcasts an advertisement; or
30
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 100
80 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(ii) causes to be published or broadcast an advertisement;
1
and
2
(b) the advertisement makes a representation that the
3
organisation provides, or will provide, all or part of a VET
4
course; and
5
(c) the VET course, or part of the VET course, is not within the
6
organisation's scope of registration.
7
Penalty: 120 penalty units.
8
100 Civil penalty--advertising all or part of VET course outside
9
scope of registration
10
An NVR registered training organisation contravenes this section
11
if:
12
(a)
the
organisation:
13
(i) publishes or broadcasts an advertisement; or
14
(ii) causes to be published or broadcast an advertisement;
15
and
16
(b) the advertisement makes a representation that the
17
organisation provides, or will provide, all or part of a VET
18
course; and
19
(c) the VET course, or part of the VET course, is not within the
20
organisation's scope of registration.
21
Civil penalty:
240 penalty units.
22
101 Offence--certain conduct prohibited while scope of registration
23
suspended
24
(1) An NVR registered training organisation commits an offence if:
25
(a) all or part of the organisation's scope of registration is
26
suspended; and
27
(b) during the period of suspension, the National VET Regulator
28
requires the organisation to do something; and
29
(c) the organisation does not do that thing.
30
Penalty: 120 penalty units.
31
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 102
National Vocational Education and Training Regulator Bill 2010 No. , 2010 81
(2) An NVR registered training organisation commits an offence if:
1
(a) all or part of the organisation's scope of registration is
2
suspended; and
3
(b) during the period of suspension, the National VET Regulator
4
requires the organisation not to do something; and
5
(c) the organisation does that thing.
6
Penalty: 120 penalty units.
7
102 Civil penalty--certain conduct prohibited while scope of
8
registration suspended
9
(1) An NVR registered training organisation contravenes this
10
subsection if:
11
(a) all or part of the organisation's scope of registration is
12
suspended; and
13
(b) during the period of suspension, the National VET Regulator
14
requires the organisation to do something; and
15
(c) the organisation does not do that thing.
16
Civil penalty:
240 penalty units.
17
(2) An NVR registered training organisation contravenes this
18
subsection if:
19
(a) all or part of the organisation's scope of registration is
20
suspended; and
21
(b) during the period of suspension, the National VET Regulator
22
requires the organisation not to do something; and
23
(c) the organisation does that thing.
24
Civil penalty:
240 penalty units.
25
103 Offence--issuing VET qualification without providing adequate
26
assessment
27
(1) An NVR registered training organisation commits an offence if:
28
(a) the organisation issues a VET qualification; and
29
(b) the requirements of the qualification relate to assessment
30
provided, or purportedly provided, by the organisation; and
31
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 104
82 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(c) the organisation did not provide, or arrange for another
1
person to provide, the assessment necessary for a VET
2
student to satisfy the requirements of the qualification.
3
Penalty: 120 penalty units.
4
(2) An NVR registered training organisation commits an offence if:
5
(a) the organisation issues a VET qualification; and
6
(b) the requirements of the qualification relate to assessment
7
provided, or purportedly provided, by the organisation and
8
another registered training organisation; and
9
(c) in respect of the requirements of the qualification relating to
10
the organisation, the organisation did not provide, or arrange
11
for another person to provide, the assessment necessary for a
12
VET student to satisfy the requirements of the qualification.
13
Penalty: 120 penalty units.
14
104 Civil penalty--issuing VET qualification without providing
15
adequate assessment
16
(1) An NVR registered training organisation contravenes this
17
subsection if:
18
(a) the organisation issues a VET qualification; and
19
(b) the requirements of the qualification relate to assessment
20
provided, or purportedly provided, by the organisation; and
21
(c) the organisation did not provide, or arrange for another
22
person to provide, the assessment necessary for a VET
23
student to satisfy the requirements of the qualification.
24
Civil penalty:
240 penalty units.
25
(2) An NVR registered training organisation contravenes this
26
subsection if:
27
(a) the organisation issues a VET qualification; and
28
(b) the requirements of the qualification relate to assessment
29
provided, or purportedly provided, by the organisation and
30
another registered training organisation; and
31
(c) in respect of the requirements of the qualification relating to
32
the organisation, the organisation did not provide, or arrange
33
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 105
National Vocational Education and Training Regulator Bill 2010 No. , 2010 83
for another person to provide, the assessment necessary for a
1
VET student to satisfy the requirements of the qualification.
2
Civil penalty:
240 penalty units.
3
105 Offence--issuing VET statement of attainment without
4
providing adequate assessment
5
(1) An NVR registered training organisation commits an offence if:
6
(a) the organisation issues a VET statement of attainment; and
7
(b) the units of competency or modules specified in the statement
8
relate to assessment provided, or purportedly provided, by
9
the organisation; and
10
(c) the organisation did not provide, or arrange for another
11
person to provide, the assessment necessary for a VET
12
student to satisfy the requirements of those units of
13
competency or modules.
14
Penalty: 120 penalty units.
15
(2) An NVR registered training organisation commits an offence if:
16
(a) the organisation issues a VET statement of attainment; and
17
(b) the units of competency or modules specified in the statement
18
relate to assessment provided, or purportedly provided, by
19
the organisation and another registered training organisation;
20
and
21
(c) in respect of the units of competency or modules relating to
22
the organisation, the organisation did not provide, or arrange
23
for another person to provide, the assessment necessary for a
24
VET student to satisfy the requirements of those units of
25
competency or modules.
26
Penalty: 120 penalty units.
27
106 Civil penalty--issuing VET statement of attainment without
28
providing adequate assessment
29
(1) An NVR registered training organisation contravenes this
30
subsection if:
31
(a) the organisation issues a VET statement of attainment; and
32
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 107
84 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(b) the units of competency or modules specified in the statement
1
relate to assessment provided, or purportedly provided, by
2
the organisation; and
3
(c) the organisation did not provide, or arrange for another
4
person to provide, the assessment necessary for a VET
5
student to satisfy the requirements of those units of
6
competency or modules.
7
Civil penalty:
240 penalty units.
8
(2) An NVR registered training organisation contravenes this
9
subsection if:
10
(a) the organisation issues a VET statement of attainment; and
11
(b) the units of competency or modules specified in the statement
12
relate to assessment provided, or purportedly provided, by
13
the organisation and another registered training organisation;
14
and
15
(c) in respect of the units of competency or modules relating to
16
the organisation, the organisation did not provide, or arrange
17
for another person to provide, the assessment necessary for a
18
VET student to satisfy the requirements of those units of
19
competency or modules.
20
Civil penalty:
240 penalty units.
21
107 Offence--issuing VET qualification without ensuring adequate
22
assessment
23
An NVR registered training organisation commits an offence if:
24
(a) the organisation issues, or purports to issue, a VET
25
qualification to a VET student; and
26
(b) the organisation did not satisfy itself that the VET student
27
had successfully satisfied the requirements of the
28
qualification.
29
Penalty: 120 penalty units.
30
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 108
National Vocational Education and Training Regulator Bill 2010 No. , 2010 85
108 Civil penalty--issuing VET qualification without ensuring
1
adequate assessment
2
An NVR registered training organisation contravenes this section
3
if:
4
(a) the organisation issues, or purports to issue, a VET
5
qualification to a VET student; and
6
(b) the organisation did not satisfy itself that the VET student
7
had successfully satisfied the requirements of the
8
qualification.
9
Civil penalty:
240 penalty units.
10
109 Offence--issuing VET statement of attainment without ensuring
11
adequate assessment
12
An NVR registered training organisation commits an offence if:
13
(a) the organisation issues, or purports to issue, a VET statement
14
of attainment to a VET student; and
15
(b) the organisation did not satisfy itself that the VET student
16
had successfully satisfied the requirements of the units of
17
competency or modules specified in the statement.
18
Penalty: 120 penalty units.
19
110 Civil penalty--issuing VET statement of attainment without
20
ensuring adequate assessment
21
An NVR registered training organisation contravenes this section
22
if:
23
(a) the organisation issues, or purports to issue, a VET statement
24
of attainment to a VET student; and
25
(b) the organisation did not satisfy itself that the VET student
26
had successfully satisfied the requirements of the units of
27
competency or modules specified in the statement.
28
Civil penalty:
240 penalty units.
29
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 111
86 National Vocational Education and Training Regulator Bill 2010 No. , 2010
111 Civil penalty--breach of condition of registration
1
(1) An NVR registered training organisation contravenes this
2
subsection if:
3
(a) a condition of the organisation's registration, as mentioned in
4
section 21, is of a kind prescribed by the regulations for the
5
purposes of this paragraph; and
6
(b) the organisation does an act or omits to do an act; and
7
(c) the act or omission breaches the condition.
8
Civil penalty:
240 penalty units.
9
(2) An NVR registered training organisation contravenes this
10
subsection if:
11
(a) a condition of the organisation's registration, as mentioned in
12
section 21, is of a kind prescribed by the regulations for the
13
purposes of this paragraph; and
14
(b) the organisation does an act or omits to do an act; and
15
(c) the act or omission breaches the condition.
16
Civil penalty:
120 penalty units.
17
112 Civil penalty--failure to return certificate of registration
18
(1) A former registered training organisation contravenes this
19
subsection if:
20
(a) the organisation's registration has been cancelled under this
21
Act; and
22
(b) the organisation fails to return its certificate of registration to
23
the National VET Regulator within 10 days of the day the
24
cancellation takes effect.
25
Civil penalty:
120 penalty units.
26
(2) A former registered training organisation contravenes this
27
subsection if:
28
(a) the organisation's registration has been withdrawn under this
29
Act; and
30
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 113
National Vocational Education and Training Regulator Bill 2010 No. , 2010 87
(b) the organisation fails to return its certificate of registration to
1
the National VET Regulator within 10 days of the day the
2
withdrawal takes effect.
3
Civil penalty:
120 penalty units.
4
113 Geographical jurisdiction
5
Section 15.4 of the Criminal Code (extended geographical
6
jurisdiction--category D) applies to each offence against this
7
Subdivision.
8
Subdivision B--Conduct that is prohibited if not an NVR
9
registered training organisation
10
114 Offence--falsely claiming to be an NVR registered training
11
organisation
12
A person commits an offence if:
13
(a) the person holds himself, herself or itself out as an NVR
14
registered training organisation; and
15
(b) the person is not an NVR registered training organisation.
16
Penalty: 300 penalty units.
17
115 Civil penalty--falsely claiming to be an NVR registered training
18
organisation
19
A person contravenes this section if:
20
(a) the person holds himself, herself or itself out as an NVR
21
registered training organisation; and
22
(b) the person is not an NVR registered training organisation.
23
Civil penalty:
600 penalty units.
24
116 Offence--providing, or offering to provide, all or part of a VET
25
course without registration
26
(1) A person commits an offence if:
27
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 117
88 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(a) the person provides, or offers to provide, all or part of a VET
1
course in a referring State or a Territory; and
2
(b) the person is not an NVR registered training organisation.
3
Penalty: 300 penalty units.
4
(2) A person commits an offence if:
5
(a) the person is a registered provider (other than a secondary
6
school); and
7
(b) the person provides, or offers to provide, all or part of a VET
8
course in a non-referring State; and
9
(c) the person is not an NVR registered training organisation.
10
Penalty: 300 penalty units.
11
Note: Paragraph
(a)--registered provider is defined, see section 3.
12
117 Civil penalty--providing, or offering to provide, all or part of a
13
VET course without registration
14
(1) A person contravenes this subsection if:
15
(a) the person provides, or offers to provide, all or part of a VET
16
course in a referring State or a Territory; and
17
(b) the person is not an NVR registered training organisation.
18
Civil penalty:
600 penalty units.
19
(2) A person contravenes this subsection if:
20
(a) the person is a registered provider (other than a secondary
21
school); and
22
(b) the person provides, or offers to provide, all or part of a VET
23
course in a non-referring State; and
24
(c) the person is not an NVR registered training organisation.
25
Civil penalty:
600 penalty units.
26
Note: Paragraph
(a)--registered provider is defined, see section 3.
27
118 Offence--issuing VET qualification
28
A person commits an offence if:
29
(a) the person purports to issue a VET qualification; and
30
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 119
National Vocational Education and Training Regulator Bill 2010 No. , 2010 89
(b) the person is not a registered training organisation.
1
Penalty: 300 penalty units.
2
119 Civil penalty--issuing VET qualification
3
A person contravenes this section if:
4
(a) the person purports to issue a VET qualification; and
5
(b) the person is not a registered training organisation.
6
Civil penalty:
600 penalty units.
7
120 Offence--issuing VET statement of attainment
8
A person commits an offence if:
9
(a) the person purports to issue a VET statement of attainment;
10
and
11
(b) the person is not a registered training organisation.
12
Penalty: 300 penalty units.
13
121 Civil penalty--issuing VET statement of attainment
14
A person contravenes this section if:
15
(a) the person purports to issue a VET statement of attainment;
16
and
17
(b) the person is not a registered training organisation.
18
Civil penalty:
600 penalty units.
19
Subdivision C--Other prohibited conduct
20
122 Offence--making false or misleading representation in
21
advertisement
22
A person commits an offence if:
23
(a) the person makes a representation that relates to:
24
(i) all or part of a VET course; or
25
(ii) a course that is held out as being a VET course; or
26
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 123
90 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(iii) part of a course that is held out as being part of a VET
1
course; or
2
(iv) a VET qualification; or
3
(v) a qualification that is held out as being a VET
4
qualification; and
5
(b) the representation is made in connection with an
6
advertisement; and
7
(c) the representation is false or misleading in a material
8
particular.
9
Penalty: 60 penalty units.
10
123 Civil penalty--making false or misleading representation in
11
advertisement
12
A person contravenes this section if:
13
(a) the person makes a representation that relates to:
14
(i) all or part of a VET course; or
15
(ii) a course that is held out as being a VET course; or
16
(iii) part of a course that is held out as being part of a VET
17
course; or
18
(iv) a VET qualification; or
19
(v) a qualification that is held out as being a VET
20
qualification; and
21
(b) the representation is made in connection with an
22
advertisement; and
23
(c) the representation is false or misleading in a material
24
particular.
25
Civil penalty:
120 penalty units.
26
124 Offence--making false or misleading representation relating to
27
VET course or VET qualification
28
A person commits an offence if:
29
(a) the person makes a representation that relates to:
30
(i) all or part of a VET course; or
31
(ii) a course that is held out as being a VET course; or
32
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 125
National Vocational Education and Training Regulator Bill 2010 No. , 2010 91
(iii) part of a course that is held out as being part of a VET
1
course; or
2
(iv) a VET qualification; or
3
(v) a qualification that is held out as being a VET
4
qualification; and
5
(b) the representation is false or misleading in a material
6
particular.
7
Penalty: 60 penalty units.
8
125 Civil penalty--making false or misleading representation
9
relating to VET course or VET qualification
10
A person contravenes this section if:
11
(a) the person makes a representation that relates to:
12
(i) all or part of a VET course; or
13
(ii) a course that is held out as being a VET course; or
14
(iii) part of a course that is held out as being part of a VET
15
course; or
16
(iv) a VET qualification; or
17
(v) a qualification that is held out as being a VET
18
qualification; and
19
(b) the representation is false or misleading in a material
20
particular.
21
Civil penalty:
120 penalty units.
22
126 Offence--purporting to issue VET qualification
23
A person commits an offence if:
24
(a) the person purports to issue a qualification as a VET
25
qualification; and
26
(b) the qualification is not a VET qualification.
27
Penalty: 300 penalty units.
28
127 Civil penalty--purporting to issue VET qualification
29
A person contravenes this section if:
30
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 128
92 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(a) the person purports to issue a qualification as a VET
1
qualification; and
2
(b) the qualification is not a VET qualification.
3
Civil penalty:
600 penalty units.
4
128 Offence--purporting to issue VET statement of attainment
5
A person commits an offence if:
6
(a) the person purports to issue a statement as a VET statement
7
of attainment; and
8
(b) the statement is not a VET statement of attainment.
9
Penalty: 300 penalty units.
10
129 Civil penalty--purporting to issue VET statement of attainment
11
A person contravenes this section if:
12
(a) the person purports to issue a statement as a VET statement
13
of attainment; and
14
(b) the statement is not a VET statement of attainment.
15
Civil penalty:
600 penalty units.
16
130 Civil penalty--breach of condition of accreditation
17
A person contravenes this section if:
18
(a) a VET accredited course is accredited in respect of the
19
person; and
20
(b) a condition is imposed on the accreditation of the course; and
21
(c) the person does an act or omits to do an act; and
22
(d) the act or omission breaches the condition.
23
Civil penalty:
120 penalty units.
24
131 Civil penalty--using a bogus VET qualification or VET
25
statement of attainment
26
(1) A natural person contravenes this subsection if:
27
(a) the person obtains a qualification; and
28
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 132
National Vocational Education and Training Regulator Bill 2010 No. , 2010 93
(b) the person knows, or a reasonable person in the
1
circumstances could be expected to know, that the
2
qualification is not a VET qualification; and
3
(c) the person purports to hold the qualification as a VET
4
qualification.
5
Civil penalty:
240 penalty units.
6
(2) A natural person contravenes this subsection if:
7
(a) the person obtains a statement of attainment; and
8
(b) the person knows, or a reasonable person in the
9
circumstances could be expected to know, that the statement
10
is not a VET statement of attainment; and
11
(c) the person purports to hold the statement as a VET statement
12
of attainment.
13
Civil penalty:
240 penalty units.
14
132 Geographical jurisdiction
15
To the extent that an offence against this Subdivision applies in
16
relation to a VET qualification, section 15.4 of the Criminal Code
17
(extended geographical jurisdiction--category D) applies to the
18
offence.
19
Subdivision D--Executive officers
20
133 Liability of executive officer of registered training organisation
21
(1) An executive officer of a registered training organisation commits
22
an offence if:
23
(a) the organisation commits an offence; and
24
(b) the officer knew that the offence would be committed; and
25
(c) the officer was in a position to influence the conduct of the
26
organisation in relation to the commission of the offence; and
27
(d) the officer failed to take all reasonable steps to prevent the
28
commission of the offence.
29
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 134
94 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(2) The maximum penalty for an offence against subsection (1) is
1
one-fifth of the maximum penalty that could be imposed for the
2
offence committed by the registered training organisation.
3
(3) An executive officer of a registered training organisation
4
contravenes this subsection if:
5
(a) the organisation contravenes a civil penalty provision; and
6
(b) the officer knew that the contravention would occur; and
7
(c) the officer was in a position to influence the conduct of the
8
organisation in relation to the contravention; and
9
(d) the officer failed to take all reasonable steps to prevent the
10
contravention.
11
(4) The maximum civil penalty for a contravention of subsection (3) is
12
one-tenth of the maximum penalty that could be imposed for the
13
contravention of the civil penalty provision by the registered
14
training organisation.
15
134 Reasonable steps to prevent offence or contravention
16
(1) For the purposes of section 133, in determining whether an
17
executive officer of a registered training organisation failed to take
18
all reasonable steps to prevent the commission of an offence, or the
19
contravention of a civil penalty provision, by the organisation, a
20
court is to have regard to:
21
(a) what action (if any) the officer took towards ensuring that the
22
organisation's employees, agents and contractors had a
23
reasonable knowledge and understanding of the requirements
24
to comply with this Act and the regulations, in so far as those
25
requirements affected the employees, agents or contractors
26
concerned; and
27
(b) what action (if any) the officer took when he or she became
28
aware that the organisation was committing an offence
29
against, or otherwise contravening, this Act or the
30
regulations.
31
(2) This section does not limit the generality of section 133.
32
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 135
National Vocational Education and Training Regulator Bill 2010 No. , 2010 95
Subdivision E--Partnerships
1
135 Liability of partners in partnerships
2
(1) An offence against Subdivision A, B or C of this Division that
3
would otherwise be committed by a partnership is taken to have
4
been committed by each partner in the partnership, at the time the
5
offence is committed, who:
6
(a) did the relevant act or made the relevant omission; or
7
(b) aided, abetted, counselled or procured the relevant act or
8
omission; or
9
(c) was in any way knowingly concerned in, or party to, the
10
relevant act or omission (whether directly or indirectly or
11
whether by any act or omission of the partner).
12
(2) A civil penalty provision in Subdivision A, B or C of this Division
13
that would otherwise be contravened by a partnership is taken to
14
have been contravened by each partner in the partnership, at the
15
time of the conduct constituting the contravention, who:
16
(a) engaged in the conduct; or
17
(b) aided, abetted, counselled or procured the conduct; or
18
(c) was in any way knowingly concerned in, or party to, the
19
conduct (whether directly or indirectly or whether by any act
20
or omission of the partner).
21
(3) If a partner in a partnership commits an offence, the penalty that
22
may be imposed on the partner must not exceed an amount equal to
23
the maximum penalty that could be imposed on an individual for
24
committing the same offence.
25
(4) If a partner in a partnership contravenes a civil penalty provision,
26
the civil penalty that may be imposed on the partner must not
27
exceed an amount equal to the maximum penalty that could be
28
imposed on an individual for the same contravention.
29
(5) For the purposes of subsections (1) and (2), to establish that a
30
partnership engaged in particular conduct, it is sufficient to show
31
that the conduct was engaged in by a partner:
32
(a) in the ordinary course of the business of the partnership; or
33
Part 6 Enforcement
Division 1 Offences and civil penalty provisions
Section 136
96 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(b) within the scope of the actual or apparent authority of the
1
partner.
2
(6) For the purposes of subsection (1), to establish that a partnership
3
had a particular state of mind when it engaged in particular
4
conduct, it is sufficient to show that a relevant partner had the
5
relevant state of mind.
6
Note:
For other provisions relating to partnerships, see Division 2 of Part 12.
7
Subdivision F--Unincorporated associations
8
136 Liability of members of unincorporated associations
9
(1) An offence against Subdivision A, B or C of this Division that
10
would otherwise be committed by an unincorporated association is
11
taken to have been committed by each member of the association's
12
committee of management, at the time the offence is committed,
13
who:
14
(a) did the relevant act or made the relevant omission; or
15
(b) aided, abetted, counselled or procured the relevant act or
16
omission; or
17
(c) was in any way knowingly concerned in, or party to, the
18
relevant act or omission (whether directly or indirectly or
19
whether by any act or omission of the member).
20
(2) A civil penalty provision of Subdivision A, B or C of this Division
21
that would otherwise be contravened by an unincorporated
22
association is taken to have been contravened by each member of
23
the association's committee of management, at the time of the
24
conduct constituting the contravention, who:
25
(a) engaged in the conduct; or
26
(b) aided, abetted, counselled or procured the conduct; or
27
(c) was in any way knowingly concerned in, or party to, the
28
conduct (whether directly or indirectly or whether by any act
29
or omission of the member).
30
(3) If a member of an unincorporated association's committee of
31
management commits an offence, the penalty that may be imposed
32
on the member must not exceed an amount equal to the maximum
33
Enforcement Part 6
Offences and civil penalty provisions Division 1
Section 136
National Vocational Education and Training Regulator Bill 2010 No. , 2010 97
penalty that could be imposed on an individual for committing the
1
same offence.
2
(4) If a member of an unincorporated association's committee of
3
management contravenes a civil penalty provision, the civil penalty
4
that may be imposed on the member must not exceed an amount
5
equal to the maximum penalty that could be imposed on an
6
individual for the same contravention.
7
(5) For the purposes of subsection (1), to establish that an
8
unincorporated association had a particular state of mind when it
9
engaged in particular conduct, it is sufficient to show that a
10
relevant member of the association's committee of management
11
had the relevant state of mind.
12
Note:
For other provisions relating to unincorporated associations, see
13
Division 3 of Part 12.
14
Part 6 Enforcement
Division 2 Civil penalty proceedings
Section 137
98 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 2--Civil penalty proceedings
1
Subdivision A--Obtaining an order for a civil penalty
2
137 Federal Court or Federal Magistrates Court may impose
3
pecuniary penalty
4
Application for order
5
(1) Within 6 years of a person (the wrongdoer) contravening a civil
6
penalty provision, the National VET Regulator may apply on
7
behalf of the Commonwealth to the Federal Court or the Federal
8
Magistrates Court for an order that the wrongdoer pay the
9
Commonwealth a pecuniary penalty.
10
Court may order wrongdoer to pay pecuniary penalty
11
(2) If the Federal Court or the Federal Magistrates Court is satisfied
12
that the wrongdoer has contravened the civil penalty provision, the
13
court may order the wrongdoer to pay to the Commonwealth for
14
each contravention the pecuniary penalty that the court determines
15
is appropriate (but not more than the amount specified for the
16
provision).
17
Determining amount of pecuniary penalty
18
(3) In determining the pecuniary penalty, the Federal Court or the
19
Federal Magistrates Court must have regard to all relevant matters,
20
including:
21
(a) the nature and extent of the contravention; and
22
(b) the nature and extent of any loss or damage suffered as a
23
result of the contravention; and
24
(c) the circumstances in which the contravention took place; and
25
(d) whether the person has previously been found to have
26
engaged in any similar conduct by the court in proceedings
27
under this Act.
28
Enforcement Part 6
Civil penalty proceedings Division 2
Section 138
National Vocational Education and Training Regulator Bill 2010 No. , 2010 99
Civil evidence and procedure rules apply
1
(4) The Federal Court or the Federal Magistrates Court must apply the
2
rules of evidence and procedure for civil matters when hearing and
3
determining an application for an order under this section.
4
Note:
The standard of proof in civil proceedings is the balance of
5
probabilities, see section 140 of the Evidence Act 1995.
6
Conduct contravening 2 or more provisions
7
(5) If conduct contravenes 2 or more civil penalty provisions,
8
proceedings may be instituted under this Act against a person for
9
the contravention of any one or more of those provisions.
10
However, the person is not liable to more than one pecuniary
11
penalty for the same conduct.
12
138 Involvement in contravening civil penalty provision
13
(1) A person must not:
14
(a) aid, abet, counsel or procure a contravention of a civil
15
penalty provision; or
16
(b) induce (by threats, promises or otherwise) a contravention of
17
a civil penalty provision; or
18
(c) conspire to contravene a civil penalty provision.
19
(2) This Act applies to a person who contravenes subsection (1) in
20
relation to a civil penalty provision as if the person had
21
contravened the provision.
22
139 Recovery of a pecuniary penalty
23
If the Federal Court or the Federal Magistrates Court orders a
24
person to pay a pecuniary penalty, the Commonwealth may enforce
25
the order as if it were a judgment of the court.
26
140 Gathering information for application for pecuniary penalty
27
(1) This section applies if it appears to the National VET Regulator
28
that a person (the wrongdoer) may have contravened a civil
29
penalty provision.
30
Part 6 Enforcement
Division 2 Civil penalty proceedings
Section 141
100 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(2) If the National VET Regulator, on reasonable grounds, suspects
1
that a person other than the wrongdoer can give information
2
relevant to an application for a pecuniary penalty order relating to
3
the contravention, whether or not such an application has been
4
made, the Regulator may, by writing given to the person, require
5
the person to give all reasonable assistance in connection with such
6
an application.
7
(3) Subsection (2) does not apply in relation to a duly qualified lawyer
8
who is acting, or has acted, for the wrongdoer.
9
(4) If a person fails to give assistance as required under subsection (2),
10
the Federal Court or the Federal Magistrates Court may, on the
11
application of the National VET Regulator, order the person to
12
comply with the requirement.
13
(5) A person commits an offence if:
14
(a) under subsection (2), the National VET Regulator requires
15
the person to give all reasonable assistance in connection
16
with an application for a pecuniary penalty order for a
17
contravention of a civil penalty provision; and
18
(b) the person fails to give the assistance.
19
Penalty: 30 penalty units.
20
(6) A requirement made under subsection (2) is not a legislative
21
instrument.
22
141 Continuing and multiple contraventions of civil penalty
23
provisions
24
(1) If, under this Act, an act or thing is required to be done within a
25
particular period or before a particular time, then, unless the
26
contrary intention appears, the obligation to do that act or thing
27
continues, even if the period has expired or the time has passed,
28
until the act or thing is done.
29
(2) If a refusal or failure to comply with a requirement described in
30
subsection (1) contravenes a civil penalty provision, a person
31
contravenes the provision on each day during which the person
32
refuses or fails to comply with that requirement, including the day
33
Enforcement Part 6
Civil penalty proceedings Division 2
Section 142
National Vocational Education and Training Regulator Bill 2010 No. , 2010 101
the Federal Court or the Federal Magistrates Court orders the
1
person to pay a pecuniary penalty for any of the contraventions or
2
any later day.
3
(3) Proceedings against a person for any number of orders to pay
4
pecuniary penalties for contraventions of a civil penalty provision
5
that are founded on the same facts, or form, or are part of, a series
6
of contraventions of the same or a similar character, may be joined.
7
(4) The Federal Court or the Federal Magistrates Court may make a
8
single order to pay a pecuniary penalty for all the contraventions
9
described in subsection (3), but the penalty must not exceed the
10
sum of the maximum penalties that could be ordered if a separate
11
penalty were ordered for each of the contraventions.
12
(5) Subsection (1) does not affect the application of section 4K of the
13
Crimes Act 1914 in relation to any law of the Commonwealth.
14
Subdivision B--Civil penalty proceedings and criminal
15
proceedings
16
142 Civil proceedings after criminal proceedings
17
The Federal Court or the Federal Magistrates Court must not order
18
a person to pay a pecuniary penalty for contravening a civil penalty
19
provision if the person has been convicted of an offence against
20
this Act constituted by conduct substantially the same as the
21
conduct constituting the contravention.
22
143 Criminal proceedings during civil proceedings
23
(1) Proceedings for an order for a person to pay a pecuniary penalty
24
for contravening a civil penalty provision are stayed if:
25
(a) criminal proceedings are started, or have already been
26
started, against the person for an offence against this Act; and
27
(b) the offence is constituted by conduct substantially the same
28
as the conduct alleged to constitute the contravention.
29
(2) The proceedings for the order may be resumed if the person is not
30
convicted of the offence. Otherwise, the proceedings for the order
31
are dismissed when the criminal proceedings (including any
32
Part 6 Enforcement
Division 2 Civil penalty proceedings
Section 144
102 National Vocational Education and Training Regulator Bill 2010 No. , 2010
appeals) for the offence against this Act end with the conviction of
1
the person of the offence.
2
144 Criminal proceedings after civil proceedings
3
Criminal proceedings may not be started against a person for
4
conduct substantially the same as conduct contravening a civil
5
penalty provision if the person has been ordered to pay a pecuniary
6
penalty under this Act for the contravention.
7
145 Evidence given in proceedings for civil penalty not admissible in
8
criminal proceedings
9
Evidence of information given or evidence of production of
10
documents by an individual is not admissible in criminal
11
proceedings against the individual for an offence if:
12
(a) the individual previously gave the information or produced
13
the documents in proceedings against the individual for a
14
pecuniary penalty order for a contravention of a civil penalty
15
provision whether or not the order was made; and
16
(b) the conduct alleged to constitute the offence is substantially
17
the same as the conduct that was claimed to constitute the
18
contravention.
19
However, this does not apply to a criminal proceeding in respect of
20
the falsity of the evidence given by the individual in the
21
proceedings for the pecuniary penalty order.
22
23
Enforcement Part 6
Enforceable undertakings Division 3
Section 146
National Vocational Education and Training Regulator Bill 2010 No. , 2010 103
Division 3--Enforceable undertakings
1
146 Acceptance of undertakings
2
(1) The National VET Regulator may accept a written undertaking
3
given by a person if the Regulator considers that the person has
4
committed an offence against this Act or contravened a civil
5
penalty provision.
6
(2) The person may withdraw or vary the undertaking at any time, but
7
only with the consent of the National VET Regulator.
8
(3) The National VET Regulator may, by written notice given to the
9
person, cancel the undertaking.
10
(4) The National VET Regulator may publish the undertaking on the
11
National Register.
12
147 Enforcement of undertakings
13
(1) If the National VET Regulator considers that a person who gave an
14
undertaking under section 146 has breached any of its terms, the
15
Regulator may apply to:
16
(a) the Federal Court; or
17
(b) the Federal Magistrates Court;
18
for an order under subsection (2).
19
(2) If a court mentioned in subsection (1) is satisfied that the person
20
has breached a term of the undertaking, the court may make one or
21
more of the following orders:
22
(a) an order directing the person to comply with that term of the
23
undertaking;
24
(b) an order directing the person to pay to the Commonwealth an
25
amount up to the amount of any financial benefit that the
26
person has obtained directly or indirectly and that is
27
reasonably attributable to the breach;
28
(c) any order that the court considers appropriate directing the
29
person to compensate any other person who has suffered loss
30
or damage as a result of the breach;
31
(d) any other order that the court considers appropriate.
32
Part 6 Enforcement
Division 4 Infringement notices
Section 148
104 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 4--Infringement notices
1
148 Infringement notices in respect of offences
2
(1) The regulations may provide for a person who is alleged to have
3
committed an offence against this Act to pay a penalty to the
4
Commonwealth as an alternative to prosecution.
5
(2) The penalty must not exceed one-fifth of the maximum penalty
6
prescribed for that offence.
7
149 Infringement notices in respect of civil penalty provisions
8
(1) The regulations may provide for a person who is alleged to have
9
contravened a civil penalty provision to pay to the Commonwealth,
10
as an alternative to civil penalty proceedings against the person, a
11
specified penalty.
12
(2) The penalty must not exceed one-tenth of the maximum penalty
13
prescribed for contravening that provision.
14
15
Enforcement Part 6
Injunctions Division 5
Section 150
National Vocational Education and Training Regulator Bill 2010 No. , 2010 105
Division 5--Injunctions
1
150 Injunctions
2
Restraining injunctions
3
(1) If a person has engaged, is engaging or is proposing to engage, in
4
any conduct that would be in contravention of this Act, the Federal
5
Court or the Federal Magistrates Court may, on the application of
6
the National VET Regulator, grant an injunction:
7
(a) restraining the person from engaging in the conduct; and
8
(b) if, in the court's opinion, it is desirable to do so--requiring
9
the person to do something.
10
Performance injunctions
11
(2)
If:
12
(a) a person has refused or failed, or is refusing or failing, or is
13
proposing to refuse or fail, to do an act or thing; and
14
(b) the refusal or failure was, is or would be in contravention of
15
this Act;
16
the Federal Court or the Federal Magistrates Court may, on the
17
application of the National VET Regulator, grant an injunction
18
requiring the person to do that act or thing.
19
151 Interim injunctions
20
If an application is made to the Federal Court or the Federal
21
Magistrates Court for an injunction under section 150, the court
22
may, before considering the application, grant an interim injunction
23
restraining a person from engaging in conduct of a kind mentioned
24
in that section.
25
152 Discharge etc. of injunctions
26
The Federal Court or the Federal Magistrates Court may discharge
27
or vary an injunction granted under this Division.
28
Part 6 Enforcement
Division 5 Injunctions
Section 153
106 National Vocational Education and Training Regulator Bill 2010 No. , 2010
153 Certain limits on granting injunctions not to apply
1
Restraining injunctions
2
(1) The power of the Federal Court or the Federal Magistrates Court
3
under this Division to grant an injunction restraining a person from
4
engaging in conduct of a particular kind may be exercised:
5
(a) if the court is satisfied that the person has engaged in conduct
6
of that kind--whether or not it appears to the court that the
7
person intends to engage again, or to continue to engage, in
8
conduct of that kind; or
9
(b) if it appears to the court that, if an injunction is not granted, it
10
is likely that the person will engage in conduct of that kind--
11
whether or not the person has previously engaged in conduct
12
of that kind and whether or not there is an imminent danger
13
of substantial damage to any other person if the
14
first-mentioned person engages in conduct of that kind.
15
Performance injunctions
16
(2) The power of the Federal Court or the Federal Magistrates Court to
17
grant an injunction requiring a person do an act or thing may be
18
exercised:
19
(a) if the court is satisfied that the person has refused or failed to
20
do that act or thing--whether or not it appears to the court
21
that the person intends to refuse or fail again, or to continue
22
to refuse or fail, to do that act or thing; or
23
(b) if it appears to the court that, if an injunction is not granted, it
24
is likely that the person will refuse or fail to do that act or
25
thing--whether or not the person has previously refused or
26
failed to do that act or thing and whether or not there is an
27
imminent danger of substantial damage to any other person if
28
the first-mentioned person refuses or fails to do that act or
29
thing.
30
154 Other powers of the Federal Court or Federal Magistrates
31
Court unaffected
32
The powers conferred on the Federal Court or the Federal
33
Magistrates Court under this Division are in addition to, and not
34
Enforcement Part 6
Injunctions Division 5
Section 154
National Vocational Education and Training Regulator Bill 2010 No. , 2010 107
instead of, any other powers of the court, whether conferred by this
1
Act or otherwise.
2
3
Part 7 National Vocational Education and Training Regulator
Division 1 Establishment, functions and powers of Regulator
Section 155
108 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Part 7--National Vocational Education and
1
Training Regulator
2
Division 1--Establishment, functions and powers of
3
Regulator
4
155 Establishment
5
(1) The National Vocational Education and Training Regulator
6
(National VET Regulator) is established by this section.
7
(2) The National VET Regulator may also be known by a name
8
specified in the regulations.
9
(3) Each State and Territory Education Minister must be consulted if
10
the National VET Regulator is to be abolished.
11
156 Constitution
12
The National VET Regulator consists of:
13
(a) a Chief Commissioner; and
14
(b)
2
Commissioners.
15
Note:
The National VET Regulator does not have a legal identity separate
16
from the Commonwealth.
17
157 Functions of the National VET Regulator
18
(1) The National VET Regulator has the following functions:
19
(a) to register an organisation as an NVR registered training
20
organisation;
21
(b) to accredit courses that may be offered and/or provided by
22
registered training organisations;
23
(c) to carry out compliance audits of NVR registered training
24
organisations;
25
(d) to promote, and encourage the continuous improvement of, a
26
registered training organisation's capacity to provide a VET
27
course or part of a VET course;
28
National Vocational Education and Training Regulator Part 7
Establishment, functions and powers of Regulator Division 1
Section 157
National Vocational Education and Training Regulator Bill 2010 No. , 2010 109
(e) if requested to do so by the Minister, or on the Regulator's
1
own initiative, to advise and make recommendations to the
2
Minister on matters relating to vocational education and
3
training;
4
(f) if requested to do so, in writing, by the Education Minister
5
for a State or Territory, or on the Regulator's own initiative,
6
to advise and make recommendations to the Education
7
Minister for the State or Territory on specific matters relating
8
to vocational education and training in the State or Territory;
9
(g) if requested to do so, in writing, by the Chair of the
10
Ministerial Council, or on the Regulator's own initiative, to
11
advise and make recommendations to the Ministerial Council
12
on general matters relating to vocational education and
13
training in all jurisdictions;
14
(h) to collect, analyse, interpret and disseminate information
15
about vocational education and training;
16
(i) to publish performance information, of a kind prescribed by
17
the regulations, relating to NVR registered training
18
organisations;
19
(j) to conduct training programs relating to the regulation of
20
registered training organisations and/or the accreditation of
21
courses;
22
(k) to enter into arrangements with occupational licensing
23
bodies, other industry bodies, or both, for the purpose of
24
ensuring compliance by NVR registered training
25
organisations with this Act;
26
(l) to cooperate with a regulatory authority of another country
27
that has responsibility relating to the quality or regulation of
28
vocational education and training for all, or part, of the
29
country;
30
(m) to develop relationships with its counterparts in other
31
countries;
32
(n) to develop key performance indicators, to be agreed by the
33
Minister, against which the Regulator's performance can be
34
assessed each financial year;
35
(o) to develop service standards that the Regulator must meet in
36
performing its functions;
37
Part 7 National Vocational Education and Training Regulator
Division 1 Establishment, functions and powers of Regulator
Section 157
110 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(p) any other function relating to vocational education and
1
training that is set out in a legislative instrument made by the
2
Minister;
3
(q) such other functions as are conferred on the Regulator by or
4
under:
5
(i) this Act; or
6
(ii)
the
Education Services for Overseas Students Act 2000
7
or any other law of the Commonwealth;
8
(r) to do anything incidental to, or conducive to, the performance
9
of any of the above functions.
10
(2) When preparing advice for the purpose of paragraphs (1)(f) and
11
(g), the National VET Regulator may consult with VET Regulators
12
in non-referring States.
13
(3) The Minister must not set out a function in a legislative instrument
14
under paragraph (1)(p) unless the Ministerial Council has agreed to
15
the function.
16
Note 1:
For how the Ministerial Council gives agreement, see section 191.
17
Note 2:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
18
Instruments Act 2003 do not apply to a legislative instrument that sets
19
out a function (see sections 44 and 54 of that Act).
20
(4) In performing the National VET Regulator's functions, the
21
Regulator must apply the Risk Assessment Framework.
22
(5) In performing the National VET Regulator's functions, the
23
Regulator must have regard to any reports or information it
24
receives about matters relating to this Act.
25
(6) A failure to comply with the requirements of subsection (4) or (5)
26
in relation to the performance of a function of the National VET
27
Regulator does not affect the validity of the performance of the
28
function.
29
(7) The National VET Regulator has the power to do all things that are
30
necessary or convenient to be done for or in connection with the
31
performance of its functions.
32
Note:
Other functions may be conferred on the National VET Regulator by
33
State law, see Division 2 of Part 8.
34
National Vocational Education and Training Regulator Part 7
Establishment, functions and powers of Regulator Division 1
Section 158
National Vocational Education and Training Regulator Bill 2010 No. , 2010 111
158 Financial Viability Risk Assessment Requirements
1
(1) The National VET Regulator must, by legislative instrument, make
2
requirements relating to the financial viability of NVR registered
3
training organisations.
4
(2) The requirements are to be known as the Financial Viability Risk
5
Assessment Requirements.
6
159 Independence of the National VET Regulator
7
Subject to section 160, the National VET Regulator is not subject
8
to direction from anyone in relation to the performance of its
9
functions or the exercise of its powers.
10
160 Minister may give directions to the National VET Regulator
11
(1) The Minister may, by legislative instrument, give a direction to the
12
National VET Regulator if the Minister considers that the direction
13
is necessary to protect the integrity of the VET sector.
14
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
15
Instruments Act 2003 do not apply to the direction (see sections 44
16
and 54 of that Act).
17
(2) However, the Minister must not give a direction about, or in
18
relation to:
19
(a) the registration of a particular person or body as an NVR
20
registered training organisation; or
21
(b) the accreditation of a particular course as a VET accredited
22
course; or
23
(c) a particular NVR registered training organisation; or
24
(d) a person in respect of whom a particular VET accredited
25
course is accredited.
26
(3) The National VET Regulator must comply with a direction given
27
under subsection (1).
28
Part 7 National Vocational Education and Training Regulator
Division 1 Establishment, functions and powers of Regulator
Section 161
112 National Vocational Education and Training Regulator Bill 2010 No. , 2010
161 National VET Regulator has privileges and immunities of the
1
Crown
2
The National VET Regulator has the privileges and immunities of
3
the Crown.
4
5
National Vocational Education and Training Regulator Part 7
Appointment of Commissioners Division 2
Section 162
National Vocational Education and Training Regulator Bill 2010 No. , 2010 113
Division 2--Appointment of Commissioners
1
162 Appointment
2
(1) A Commissioner is to be appointed by the Governor-General by
3
written instrument, on a full-time basis.
4
Note:
A Commissioner is eligible for reappointment, see the Acts
5
Interpretation Act 1901.
6
(2) A person may only be appointed as a Commissioner if the Minister
7
is satisfied that the person has appropriate qualifications,
8
knowledge or experience.
9
(3) However, a person who is, or has been at any time in the 2 years
10
before an appointment is made, an executive officer of a registered
11
training organisation is not eligible for appointment as a
12
Commissioner.
13
(4) The Governor-General must appoint a Commissioner to be the
14
Chief Commissioner.
15
(5) The Governor-General may appoint another Commissioner to be
16
the Deputy Chief Commissioner.
17
163 Term of appointment
18
A Commissioner holds office for the period specified in the
19
instrument of appointment. The period must not exceed 5 years.
20
164 Remuneration and allowances
21
(1) A Commissioner is to be paid the remuneration that is determined
22
by the Remuneration Tribunal. If no determination of that
23
remuneration by the Tribunal is in operation, the Commissioner is
24
to be paid the remuneration that is determined by the Minister.
25
(2) A Commissioner is to be paid the allowances that are prescribed by
26
the regulations.
27
(3) This section has effect subject to the Remuneration Tribunal Act
28
1973.
29
Part 7 National Vocational Education and Training Regulator
Division 2 Appointment of Commissioners
Section 165
114 National Vocational Education and Training Regulator Bill 2010 No. , 2010
165 Leave of absence
1
(1) A Commissioner has the recreation leave entitlements that are
2
determined by the Remuneration Tribunal.
3
(2) The Minister may grant a Commissioner leave of absence, other
4
than recreation leave, on the terms and conditions as to
5
remuneration or otherwise that the Minister determines.
6
166 Outside employment
7
A Commissioner must not engage in paid employment outside the
8
duties of his or her office without the Minister's approval.
9
167 Disclosure of interests to the Minister
10
(1) A Commissioner must give written notice to the Minister of all
11
interests, pecuniary or otherwise, that the Commissioner has or
12
acquires and that conflict or could conflict with the proper
13
performance of the National VET Regulator's functions.
14
(2) The notice must be given to the Minister as soon as practicable
15
after the Commissioner becomes aware of the potential for conflict
16
of interest.
17
168 Other terms and conditions
18
A Commissioner holds office on the terms and conditions (if any)
19
in relation to matters not covered by this Act that are determined,
20
in writing, by the Minister.
21
169 Resignation
22
(1) A Commissioner may resign his or her appointment by giving the
23
Governor-General a written resignation.
24
(2) If the Chief Commissioner resigns, he or she also resigns his or her
25
position as the Chief Executive Officer.
26
Note:
Subsection (2) does not prevent a person who is both the Chief
27
Commissioner and Chief Executive Officer from being reappointed
28
only as a Commissioner.
29
National Vocational Education and Training Regulator Part 7
Appointment of Commissioners Division 2
Section 170
National Vocational Education and Training Regulator Bill 2010 No. , 2010 115
(3) The resignation takes effect on the day it is received by the
1
Governor-General or, if a later day is specified in the resignation,
2
on that later day.
3
170 Termination of appointment
4
(1) The Governor-General may terminate the appointment of a
5
Commissioner:
6
(a) for misbehaviour or physical or mental incapacity; or
7
(b) if the Commissioner:
8
(i) becomes bankrupt; or
9
(ii) applies to take the benefit of any law for the relief of
10
bankrupt or insolvent debtors; or
11
(iii) compounds with his or her creditors; or
12
(iv) makes an assignment of his or her remuneration for the
13
benefit of his or her creditors; or
14
(c) if the Commissioner is absent, except on leave of absence,
15
for 14 consecutive days or for 28 days in any 12 months; or
16
(d) if the Commissioner engages, except with the Minister's
17
approval, in paid employment outside the duties of his or her
18
office (see section 166); or
19
(e) if the Commissioner fails, without reasonable excuse, to
20
comply with section 167 or subsection 175(1).
21
(2) The Minister must terminate the appointment of a Commissioner if
22
the Commissioner becomes an executive officer of a registered
23
training organisation.
24
171 Acting Chief Commissioner
25
(1) If a Deputy Chief Commissioner is appointed, the Deputy Chief
26
Commissioner is to act as the Chief Commissioner:
27
(a) during a vacancy in the office of the Chief Commissioner
28
(whether or not an appointment has previously been made to
29
the office); or
30
(b) during any period, or during all periods, when the Chief
31
Commissioner:
32
(i) is absent from duty or from Australia; or
33
Part 7 National Vocational Education and Training Regulator
Division 2 Appointment of Commissioners
Section 172
116 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(ii) is, for any reason, unable to perform the duties of the
1
office.
2
(2) Anything done by or in relation to the Deputy Chief Commissioner
3
when purporting to act under this section is not invalid merely
4
because the occasion to act had not arisen or had ceased.
5
Note: See
the
Acts Interpretation Act 1901.
6
172 Acting Commissioners
7
(1) If a Deputy Chief Commissioner is appointed, the
8
Governor-General may, by written instrument, appoint a person to
9
act as the Deputy Chief Commissioner:
10
(a) during a vacancy in the office of the Deputy Chief
11
Commissioner; or
12
(b) during any period, or during all periods, when the Deputy
13
Chief Commissioner:
14
(i) is absent from duty or from Australia; or
15
(ii) is, for any reason, unable to perform the duties of the
16
office.
17
(2) The Governor-General may, by written instrument, appoint a
18
person to act as a Commissioner (other than the Chief
19
Commissioner or Deputy Chief Commissioner):
20
(a) during a vacancy in the office of the Commissioner (whether
21
or not an appointment has previously been made to the
22
office); or
23
(b) during any period, or during all periods, when the
24
Commissioner:
25
(i) is absent from duty or from Australia; or
26
(ii) is, for any reason, unable to perform the duties of the
27
office.
28
(3) Anything done by or in relation to a person purporting to act under
29
an appointment is not invalid merely because:
30
(a) the occasion for the appointment had not arisen; or
31
(b) there was a defect or irregularity in connection with the
32
appointment; or
33
(c) the appointment had ceased to have effect; or
34
National Vocational Education and Training Regulator Part 7
Appointment of Commissioners Division 2
Section 172
National Vocational Education and Training Regulator Bill 2010 No. , 2010 117
(d) the occasion to act had not arisen or had ceased.
1
Note: See
the
Acts Interpretation Act 1901.
2
3
Part 7 National Vocational Education and Training Regulator
Division 3 National VET Regulator procedures
Section 173
118 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 3--National VET Regulator procedures
1
Subdivision A--Meetings
2
173 Times and places of meetings
3
(1) The Chief Commissioner must ensure that such meetings as are
4
necessary for the efficient performance of the National VET
5
Regulator's functions are held.
6
(2) Meetings are to be held at such times and places as the Chief
7
Commissioner decides.
8
(3) The Chief Commissioner must convene a meeting if requested, in
9
writing, by the other 2 Commissioners.
10
174 Conduct of meetings
11
Presiding at meetings
12
(1) The Chief Commissioner presides at all meetings at which he or
13
she is present.
14
(2) If the Chief Commissioner is not present at a meeting, a person
15
appointed by the Chief Commissioner must be present and preside.
16
Quorum
17
(3) At a meeting of the National VET Regulator, a quorum is
18
constituted by 2 Commissioners.
19
Rules of procedure
20
(4) The National VET Regulator may, subject to this Division,
21
regulate proceedings at its meetings as it considers appropriate.
22
Note:
Section 33B of the Acts Interpretation Act 1901 provides for
23
participation in meetings by telephone etc.
24
National Vocational Education and Training Regulator Part 7
National VET Regulator procedures Division 3
Section 175
National Vocational Education and Training Regulator Bill 2010 No. , 2010 119
Voting
1
(5) The person presiding at a meeting of the National VET Regulator
2
has a deliberative vote but, if the votes are equal, does not have a
3
casting vote.
4
Minutes
5
(6) The National VET Regulator must ensure that minutes of its
6
meetings are kept.
7
175 Disclosure of interests
8
(1) If a Commissioner has an interest, pecuniary or otherwise, in a
9
matter being considered, or about to be considered, at a meeting,
10
the Commissioner must disclose the nature of that interest to the
11
other Commissioners.
12
(2) The disclosure must be made as soon as possible after the relevant
13
facts have come to the Commissioner's knowledge.
14
(3) The disclosure must be recorded in the minutes of the meeting.
15
(4) Unless the National VET Regulator otherwise determines, the
16
Commissioner:
17
(a) must not be present during the Regulator's deliberation on
18
the matter; and
19
(b) must not take part in the Regulator's decision on the matter.
20
(5) For the purposes of making a determination under subsection (4),
21
the Commissioner:
22
(a) must not be present during any of the National VET
23
Regulator's deliberations for the purpose of making the
24
determination; and
25
(b) must not take part in making the determination.
26
(6) A determination under subsection (4) must be recorded in the
27
minutes of the meeting.
28
Part 7 National Vocational Education and Training Regulator
Division 3 National VET Regulator procedures
Section 176
120 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Subdivision B--Decisions without meetings
1
176 Decisions without meetings
2
(1) A decision is taken to have been made at a meeting of the National
3
VET Regulator if:
4
(a) without meeting, a majority of Commissioners indicate
5
agreement with the proposed decision in accordance with the
6
method determined by the Regulator under subsection (2);
7
and
8
(b) all Commissioners were informed of the proposed decision,
9
or reasonable efforts were made to inform all Commissioners
10
of the proposed decision.
11
(2) Subsection (1) applies only if the National VET Regulator:
12
(a) has determined that it applies; and
13
(b) has determined the method by which Commissioners are to
14
indicate agreement with proposed decisions.
15
177 Record of decisions
16
The National VET Regulator must keep a record of decisions made
17
in accordance with section 176.
18
19
National Vocational Education and Training Regulator Part 7
Ensuring compliance with the Standards for VET Regulators Division 4
Section 178
National Vocational Education and Training Regulator Bill 2010 No. , 2010 121
Division 4--Ensuring compliance with the Standards for
1
VET Regulators
2
178 National VET Regulator to cooperate with assessments
3
The National VET Regulator must cooperate with the Ministerial
4
Council when the Council assesses whether the Regulator
5
continues to comply with the Standards for VET Regulators.
6
7
Part 7 National Vocational Education and Training Regulator
Division 5 Chief Executive Officer
Section 179
122 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 5--Chief Executive Officer
1
179 Chief Executive Officer
2
(1) There is to be a Chief Executive Officer of the National VET
3
Regulator.
4
(2) The Chief Commissioner is the Chief Executive Officer.
5
180 Functions and powers of the Chief Executive Officer
6
(1) The Chief Executive Officer is responsible for the management
7
and administration of the National VET Regulator.
8
(2) All acts and things done in the name of, or on behalf of, the
9
National VET Regulator by the Chief Executive Officer are taken
10
to have been done by the Regulator.
11
181 Minister may give directions to Chief Executive Officer
12
(1) The Minister may, by legislative instrument, give written directions
13
to the Chief Executive Officer about the performance of his or her
14
functions.
15
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
16
Instruments Act 2003 do not apply to the direction (see sections 44
17
and 54 of that Act).
18
(2) The Chief Executive Officer must comply with a direction under
19
subsection (1).
20
(3) Subsection (2) does not apply to the extent that the direction relates
21
to the Chief Executive Officer's performance of functions or
22
exercise of powers under the Public Service Act 1999 in relation to
23
the National VET Regulator.
24
25
National Vocational Education and Training Regulator Part 7
Staff and consultants Division 6
Section 182
National Vocational Education and Training Regulator Bill 2010 No. , 2010 123
Division 6--Staff and consultants
1
182 Staff
2
(1) The staff of the National VET Regulator are to be persons engaged
3
under the Public Service Act 1999.
4
(2) For the purposes of the Public Service Act 1999:
5
(a) the Chief Executive Officer and the staff of the National VET
6
Regulator together constitute a Statutory Agency; and
7
(b) the Chief Executive Officer is the Head of that Statutory
8
Agency.
9
183 Staff to be made available to the National VET Regulator
10
(1) The National VET Regulator is to be assisted by:
11
(a) officers and employees of Agencies (within the meaning of
12
the Public Service Act 1999), and of authorities of the
13
Commonwealth, whose services are made available to the
14
Regulator in connection with the performance of its functions
15
or the exercise of its powers; and
16
(b) persons whose services are made available under
17
arrangements made under subsection (2).
18
(2) The Chief Executive Officer may arrange with the appropriate
19
State or Territory authority or officer of a State or Territory
20
authority to make officers or employees available to the National
21
VET Regulator to perform services in connection with the
22
performance of the Regulator's functions or the exercise of its
23
powers.
24
(3) An arrangement under subsection (2) may provide for the
25
Commonwealth to reimburse a State or Territory with respect to
26
the services of a person or persons to whom the arrangement
27
relates.
28
(4) When performing services for the National VET Regulator under
29
this section, a person is subject to the directions of the Chief
30
Executive Officer.
31
Part 7 National Vocational Education and Training Regulator
Division 6 Staff and consultants
Section 184
124 National Vocational Education and Training Regulator Bill 2010 No. , 2010
184 Consultants
1
(1) To assist the National VET Regulator in the performance of its
2
functions, the Chief Executive Officer may, on behalf of the
3
Commonwealth, engage persons having suitable qualifications and
4
experience as consultants.
5
(2) Consultants are to be engaged on the terms and conditions that the
6
Chief Executive Officer determines in writing.
7
8
Commonwealth-State arrangements Part 8
Role of Ministerial Council Division 1
Section 185
National Vocational Education and Training Regulator Bill 2010 No. , 2010 125
Part 8--Commonwealth-State arrangements
1
Division 1--Role of Ministerial Council
2
Subdivision A--NVR registered training organisations
3
185 Standards for NVR Registered Training Organisations
4
(1) The Minister may, by legislative instrument, make standards for
5
NVR registered training organisations, as agreed by the Ministerial
6
Council.
7
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
8
Instruments Act 2003 do not apply to a legislative instrument that
9
makes the standards (see sections 44 and 54 of that Act).
10
(2) The agreed standards are to be known as the Standards for NVR
11
Registered Training Organisations.
12
186 Fit and Proper Person Requirements
13
(1) The Minister may, by legislative instrument, make requirements
14
for assessing whether a person is a fit and proper person, as agreed
15
by the Ministerial Council.
16
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
17
Instruments Act 2003 do not apply to a legislative instrument that
18
makes the requirements (see sections 44 and 54 of that Act).
19
(2) The agreed requirements are to be known as the Fit and Proper
20
Person Requirements.
21
187 Data Provision Requirements
22
(1) The Minister may, by legislative instrument, make requirements
23
for data provision, as agreed by the Ministerial Council.
24
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
25
Instruments Act 2003 do not apply to a legislative instrument that
26
makes the requirements (see sections 44 and 54 of that Act).
27
(2) The agreed requirements are to be known as the Data Provision
28
Requirements.
29
Part 8 Commonwealth-State arrangements
Division 1 Role of Ministerial Council
Section 188
126 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Subdivision B--VET accredited courses
1
188 Standards for VET Accredited Courses
2
(1) The Minister may, by legislative instrument, make standards for
3
VET accredited courses, as agreed by the Ministerial Council.
4
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
5
Instruments Act 2003 do not apply to a legislative instrument that
6
makes the standards (see sections 44 and 54 of that Act).
7
(2) The agreed standards are to be known as the Standards for VET
8
Accredited Courses.
9
Subdivision C--VET Regulators
10
189 Standards for VET Regulators
11
(1) The Minister may, by legislative instrument, make standards for
12
VET Regulators, as agreed by the Ministerial Council.
13
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
14
Instruments Act 2003 do not apply to a legislative instrument that
15
makes the standards (see sections 44 and 54 of that Act).
16
(2) The agreed standards are to be known as the Standards for VET
17
Regulators.
18
190 Risk Assessment Framework
19
(1) The Minister may, by writing, make guidelines for the National
20
VET Regulator to use when assessing risk, as agreed by the
21
Ministerial Council.
22
(2) The agreed guidelines are to be known as the Risk Assessment
23
Framework.
24
(3) The guidelines made under subsection (1) are not a legislative
25
instrument.
26
Commonwealth-State arrangements Part 8
Role of Ministerial Council Division 1
Section 191
National Vocational Education and Training Regulator Bill 2010 No. , 2010 127
Subdivision D--Miscellaneous
1
191 How the Ministerial Council gives agreement
2
The Ministerial Council is to give its agreement, for the purposes
3
of a provision of this Act, by resolution of the Council passed in
4
accordance with the procedures determined by the Council.
5
6
Part 8 Commonwealth-State arrangements
Division 2 Conferral of functions and powers by State law
Section 192
128 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 2--Conferral of functions and powers by State
1
law
2
Subdivision A--Conferral of functions and powers
3
192 Commonwealth consent to conferral of functions etc. on the
4
National VET Regulator by corresponding State laws
5
(1) A corresponding State law may confer functions or powers, or
6
impose duties, on the National VET Regulator.
7
(2) Subsection (1) does not authorise the conferral of a function or
8
power, or the imposition of a duty, by a corresponding State law to
9
the extent to which:
10
(a) the conferral or imposition, or the authorisation, would
11
contravene any constitutional doctrines restricting the duties
12
that may be imposed on the National VET Regulator; or
13
(b) the authorisation would otherwise exceed the legislative
14
power of the Commonwealth.
15
(3) Subsection (1) does not extend to a function, power or duty of a
16
kind specified in regulations made for the purposes of this
17
subsection.
18
(4) This Act is not intended to exclude or limit the operation of a
19
corresponding State law that confers any functions or powers, or
20
imposes any duties, on the National VET Regulator to the extent to
21
which that law:
22
(a) is consistent with subsections (1) to (3); and
23
(b) is capable of operating concurrently with this Act.
24
193 Meaning of imposes a duty
25
For the purposes of this Act, a corresponding State law imposes a
26
duty on the National VET Regulator if:
27
(a) the corresponding State law confers a function or power on
28
the Regulator; and
29
Commonwealth-State arrangements Part 8
Conferral of functions and powers by State law Division 2
Section 194
National Vocational Education and Training Regulator Bill 2010 No. , 2010 129
(b) the circumstances in which the function or power is conferred
1
give rise to an obligation on the Regulator to perform the
2
function or to exercise the power.
3
194 When duty imposed
4
Application
5
(1) This section applies if a corresponding State law purports to
6
impose a duty on the National VET Regulator.
7
State legislative power sufficient to support duty
8
(2) The duty is taken not to be imposed by this Act (or any other law
9
of the Commonwealth) to the extent to which:
10
(a) imposing the duty is within the legislative powers of the State
11
concerned; and
12
(b) imposing the duty by the corresponding State law is
13
consistent with the constitutional doctrines restricting the
14
duties that may be imposed on the National VET Regulator.
15
Note:
If this subsection applies, the duty will be taken to be imposed by
16
force of the corresponding State law (the Commonwealth having
17
consented under section 192 to the imposition of the duty by the
18
corresponding State law).
19
Commonwealth legislative power sufficient to support duty but
20
State legislative powers are not
21
(3) If, to ensure the validity of the purported imposition of the duty, it
22
is necessary that the duty be imposed by a law of the
23
Commonwealth (rather than by force of the corresponding State
24
law), the duty is taken to be imposed by this Act to the extent
25
necessary to ensure that validity.
26
(4) If, because of subsection (3), this Act is taken to impose the duty, it
27
is the intention of the Parliament to rely on all powers available to
28
it under the Constitution to support the imposition of the duty by
29
this Act.
30
(5) The duty is taken to be imposed by this Act in accordance with
31
subsection (3) only to the extent to which imposing the duty:
32
Part 8 Commonwealth-State arrangements
Division 2 Conferral of functions and powers by State law
Section 195
130 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(a) is within the legislative powers of the Commonwealth; and
1
(b) is consistent with the constitutional doctrines restricting the
2
duties that may be imposed on the National VET Regulator.
3
(6) To avoid doubt, neither this Act nor any other law of the
4
Commonwealth imposes a duty on the National VET Regulator to
5
the extent to which imposing such a duty would:
6
(a) contravene any constitutional doctrine restricting the duties
7
that may be imposed on the Regulator; or
8
(b) otherwise exceed the legislative power of the
9
Commonwealth.
10
(7) Subsections (1) to (6) do not limit section 192.
11
195 Duty imposed by corresponding State law applying
12
Commonwealth law
13
(1)
This
section:
14
(a) applies only for the purposes of the application of the
15
provisions of this Act or another law of the Commonwealth
16
(with or without modification) as a law of a State by a
17
provision of a corresponding State law; and
18
(b) does not apply for those purposes if the corresponding State
19
law otherwise provides.
20
(2) If the corresponding State law purports to impose a duty on the
21
National VET Regulator to do a particular thing, the duty is taken
22
to be imposed by the corresponding State law to the extent to
23
which imposing the duty:
24
(a) is within the legislative powers of the State; and
25
(b) is consistent with the constitutional doctrines restricting the
26
duties that may be imposed on the Regulator.
27
(3) To avoid doubt, the corresponding State law does not impose the
28
duty on the National VET Regulator to the extent to which
29
imposing the duty would:
30
(a) contravene any constitutional doctrine restricting the duties
31
that may be imposed on the Regulator; or
32
(b) otherwise exceed the legislative powers of the State.
33
Commonwealth-State arrangements Part 8
Conferral of functions and powers by State law Division 2
Section 196
National Vocational Education and Training Regulator Bill 2010 No. , 2010 131
(4) If imposing on the National VET Regulator the duty to do that
1
thing would:
2
(a) contravene any constitutional doctrine restricting the duties
3
that may be imposed on the Regulator; or
4
(b) otherwise exceed the legislative powers of both the State and
5
the Commonwealth;
6
the corresponding State law is taken instead to confer on the
7
Regulator a power to do that thing at the discretion of the
8
Regulator.
9
Subdivision B--Jurisdiction of federal courts
10
196 Conferral of jurisdiction on federal courts
11
If:
12
(a) a provision of a corresponding State law purports to apply a
13
provision of a law of the Commonwealth (the applied
14
provision) as a law of the State; and
15
(b) the applied provision purports to confer jurisdiction in
16
relation to a matter on a federal court;
17
the jurisdiction in relation to that matter is taken to be conferred on
18
the court by this section.
19
Subdivision C--Administrative decisions
20
197 Review of certain decisions under State laws
21
(1) Application may be made to the Administrative Appeals Tribunal
22
for review of a reviewable State decision.
23
(2) A decision made by the National VET Regulator in the
24
performance of a function, or the exercise of a power, conferred by
25
a corresponding State law is a reviewable State decision if:
26
(a) the law under which the decision was made provides for
27
review by the Administrative Appeals Tribunal; and
28
(b) the decision is declared by the regulations to be a reviewable
29
decision for the purposes of this section.
30
Part 8 Commonwealth-State arrangements
Division 2 Conferral of functions and powers by State law
Section 198
132 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(3) For the purposes of subsection (1), the Administrative Appeals
1
Tribunal Act 1975 has effect as if a corresponding State law were
2
an enactment.
3
Subdivision D--Application to the Australian Capital Territory
4
and the Northern Territory
5
198 Application to the Australian Capital Territory and the
6
Northern Territory
7
This Division applies to the Australian Capital Territory and the
8
Northern Territory in the same way as it applies to a State.
9
10
Administrative law matters Part 9
Review of decisions Division 1
Section 199
National Vocational Education and Training Regulator Bill 2010 No. , 2010 133
Part 9--Administrative law matters
1
Division 1--Review of decisions
2
199 Reviewable decisions
3
For the purposes of this Act, each of the following decisions of the
4
National VET Regulator is a reviewable decision:
5
6
Reviewable decisions
A decision to grant an application for registration (including renewal of registration)
as an NVR registered training organisation.
A decision determining the period for which an NVR registered training organisation
is registered.
A decision to impose a condition on an NVR registered training organisation's
registration.
A decision to reject an application for registration (including renewal of registration)
as an NVR registered training organisation.
A decision to vary a condition on an NVR registered training organisation's
registration.
A decision not to determine a shorter period for making an application for renewal of
registration as an NVR registered training organisation.
A decision to change, or refuse to change, an NVR registered training organisation's
scope of registration.
A decision to suspend all or part of an NVR registered training organisation's scope
of registration.
A decision to shorten the period of an NVR registered training organisation's
registration.
A decision to defer making a decision to change an NVR registered training
organisation's scope of registration until the organisation addresses issues identified
by the National VET Regulator.
A decision not to allow an NVR registered training organisation's registration to be
withdrawn.
A decision to cancel an NVR registered training organisation's registration.
A decision to grant an application for accreditation of a course (including renewal of
accreditation) as a VET accredited course.
A decision to impose conditions on the accreditation of a VET accredited course.
Part 9 Administrative law matters
Division 1 Review of decisions
Section 200
134 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Reviewable decisions
A decision to vary a condition on the accreditation of a VET accredited course.
A decision to reject an application for accreditation of a course (including renewal of
accreditation) as a VET accredited course.
A decision to amend a VET accredited course.
A decision to cancel the accreditation of a VET accredited course.
A decision to give a written direction to an NVR registered training organisation
under paragraph 36(2)(a) or (b).
A decision to issue, or not issue, a VET qualification.
A decision to issue, or not issue, a VET statement of attainment.
A decision to cancel, or not cancel, a VET qualification.
A decision to cancel, or not cancel, a VET statement of attainment.
A decision to enter details on the register under subsection 216(4).
200 Applications for reconsideration of decisions
1
(1) This section applies to a reviewable decision if the decision is
2
made by a person or body to whom a function or power is
3
delegated under section 224 or 225.
4
(2) A person affected by a reviewable decision who is dissatisfied with
5
the decision may apply to the National VET Regulator for the
6
Regulator to reconsider the decision.
7
(3) The application must:
8
(a) be in a form approved in writing by the National VET
9
Regulator; and
10
(b) set out the reasons for the application; and
11
(c) be accompanied by the fee (if any) determined by the
12
Minister, by legislative instrument, under section 232.
13
(4) The application must be made within:
14
(a) 30 days after the applicant is informed of the decision; or
15
(b) if, either before or after the end of that period of 30 days, the
16
National VET Regulator extends the period within which the
17
application may be made--the extended period.
18
Administrative law matters Part 9
Review of decisions Division 1
Section 201
National Vocational Education and Training Regulator Bill 2010 No. , 2010 135
(5) An approved form of an application may provide for verification
1
by statutory declaration of statements in applications.
2
201 Reconsideration by the National VET Regulator
3
(1) Upon receiving such an application, the National VET Regulator
4
must:
5
(a) reconsider the decision; and
6
(b) affirm, vary or revoke the decision.
7
(2) The person who reconsiders the decision must be:
8
(a) if a member of the staff of the Regulator made the decision
9
under review--a Commissioner or a member of the staff of
10
the Regulator who:
11
(i) was not involved in making the decision; and
12
(ii) occupies a position that is senior to that occupied by any
13
person involved in making the decision; or
14
(b) in any other case--a Commissioner or a member of the staff
15
of the Regulator who was not involved in making the
16
decision.
17
(3) The National VET Regulator's decision on reconsideration of a
18
decision has effect as if it had been made under the provision under
19
which the original decision was made.
20
(4) The National VET Regulator must give to the applicant a written
21
notice stating its decision on the reconsideration. The notice must
22
explain that the applicant may apply to the Administrative Appeals
23
Tribunal for review of the Regulator's decision on the
24
reconsideration.
25
(5) Within 30 days after making its decision on the reconsideration,
26
the National VET Regulator must give the applicant a written
27
statement of its reasons for its decision.
28
202 Deadline for reconsideration
29
(1) The National VET Regulator must make its decision on
30
reconsideration of a decision within 90 days after receiving an
31
application for reconsideration.
32
Part 9 Administrative law matters
Division 1 Review of decisions
Section 203
136 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(2) The National VET Regulator is taken, for the purposes of this Part,
1
to have made a decision affirming the original decision if it has not
2
informed the applicant of its decision on the reconsideration before
3
the end of the period of 90 days.
4
203 Review by the Administrative Appeals Tribunal
5
(1) Applications may be made to the Administrative Appeals Tribunal
6
for review of a reviewable decision if the National VET Regulator
7
has affirmed or varied the decision under section 201.
8
(2) Applications may be made to the Administrative Appeals Tribunal
9
for review of a reviewable decision if the decision was made by a
10
person other than a member of the staff of the Regulator.
11
12
Administrative law matters Part 9
Information management Division 2
Section 204
National Vocational Education and Training Regulator Bill 2010 No. , 2010 137
Division 2--Information management
1
Subdivision A--Unauthorised disclosure
2
204 Unauthorised disclosure of VET information
3
A person commits an offence if:
4
(a) the person discloses VET information or produces a
5
document; and
6
(b) the person has the VET information or document because he
7
or she is, or was, any of the following (an entrusted person):
8
(i)
a
Commissioner;
9
(ii) the Chief Executive Officer;
10
(iii) a member of the staff of the Regulator;
11
(iv) a consultant engaged under section 184; and
12
(c) none of the following circumstances apply to the disclosure
13
or production:
14
(i) it is made for the purposes of this Act or otherwise in
15
connection with the performance of the person's duties
16
as an entrusted person;
17
(ii) it is required or authorised by or under a law of the
18
Commonwealth or a State or Territory.
19
Penalty: Imprisonment for 2 years.
20
Subdivision B--Information sharing
21
205 Disclosure of information by National VET Regulator
22
(1) For the purpose of administering laws relating to vocational
23
education and training, the National VET Regulator may disclose
24
information to:
25
(a) the Secretary; or
26
(b) a Commonwealth authority; or
27
(c) a State or Territory authority; or
28
(d) a person who holds any office or appointment under a law of
29
the Commonwealth, a State or Territory; or
30
(e) another VET Regulator; or
31
Part 9 Administrative law matters
Division 2 Information management
Section 206
138 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(f) the National Centre for Vocational Education Research (or
1
any successor of that body).
2
(2) If the National VET Regulator discloses personal information
3
under subsection (1) (other than to a person or body mentioned in
4
paragraph (1)(a), (b), (c) or (e)), the Regulator must advise the
5
person about whom the information is disclosed, by notice in
6
writing, of:
7
(a) the disclosure; and
8
(b) the details of the personal information disclosed.
9
206 Advising State/Territory Education Ministers about concerns or
10
proposed cancellation of registration
11
(1) The National VET Regulator may advise the Education Minister
12
for a State or Territory if:
13
(a) the Regulator has serious concerns about a registered training
14
organisation that provides all or part of a VET course in the
15
State or Territory concerned; or
16
(b) the Regulator proposes to cancel the registration of an NVR
17
registered training organisation that provides all or part of a
18
VET course in the State or Territory concerned; or
19
(c) an NVR registered training organisation has given written
20
notice to the Regulator seeking to have its registration
21
withdrawn.
22
(2) If the National VET Regulator advises the Education Minister for a
23
State or Territory under subsection (1), the Regulator may also
24
advise:
25
(a) a person who holds any office or appointment under a law of
26
the Commonwealth, or under a law of the State or Territory
27
concerned; or
28
(b) employees of the Commonwealth of the prescribed kind; or
29
(c) employees, of the prescribed kind, of the State or Territory
30
concerned.
31
Administrative law matters Part 9
Information management Division 2
Section 207
National Vocational Education and Training Regulator Bill 2010 No. , 2010 139
207 Disclosure of information to occupational licensing bodies etc.
1
(1) If the National VET Regulator considers it appropriate to do so, the
2
Regulator may disclose information to an occupational licensing
3
body or other industry body (other than one covered by paragraph
4
205(1)(c)) that deals with, or has an interest in, matters relating to
5
vocational education and training.
6
(2) If the National VET Regulator discloses personal information
7
under subsection (1), the Regulator must advise the person about
8
whom the information is disclosed, by notice in writing, of:
9
(a) the disclosure; and
10
(b) the details of the personal information disclosed.
11
208 Disclosure of information in accordance with international
12
cooperative arrangements
13
The National VET Regulator may disclose information relating to
14
the assessment or regulation of registered training organisations to
15
a regulatory authority of another country if:
16
(a) Australia has cooperative arrangements with the country that
17
relate to the assessment or regulation of training
18
organisations; and
19
(b) the disclosure of the information is consistent with those
20
arrangements.
21
209 Release of information to the public
22
(1)
The National VET Regulator
may release information to the
23
public if the Regulator is satisfied that the release of the
24
information:
25
(a) would reasonably inform a person's choice to enrol as a VET
26
student with a registered training organisation; or
27
(b) would encourage improvement in the quality of vocational
28
education and training services provided; or
29
(c) would encourage compliance with the Australian
30
Qualifications Framework.
31
(2) The National VET Regulator may provide for the release of
32
information under subsection (1) by authorising a person or body
33
Part 9 Administrative law matters
Division 2 Information management
Section 210
140 National Vocational Education and Training Regulator Bill 2010 No. , 2010
mentioned in paragraph 205(1)(b), (c) or (d) to release the
1
information.
2
210 Disclosure of information to the National VET Regulator
3
(1) The National VET Regulator may, by notice in writing, request:
4
(a) a Commonwealth authority; or
5
(b) a State or Territory authority; or
6
(c) a person who holds any office or appointment under a law of
7
the Commonwealth, a State or Territory; or
8
(d) another VET Regulator; or
9
(e) an occupational licensing body or other industry body (other
10
than one covered by paragraph (b)) that deals with, or has an
11
interest in, matters relating to vocational education and
12
training;
13
to disclose to the National VET Regulator information specified in
14
the request.
15
(2) For the purposes of:
16
(a) paragraph 1(d) of Information Privacy Principle 11 in
17
section 14 of the Privacy Act 1988; and
18
(b) paragraph 2.1(g) of National Privacy Principle 2 in
19
Schedule 3 to the Privacy Act 1988; and
20
(c) a provision of a law of a State or Territory that provides that
21
information that is personal may be disclosed if the
22
disclosure is authorised by law;
23
the disclosure of personal information by a person in response to a
24
request under this section is taken to be a disclosure that is
25
authorised by law.
26
(3) A person or body mentioned in paragraph (1)(b), (c) or (d) must
27
disclose information requested under this section even if, despite
28
subsection (2), disclosure would otherwise be prevented by a law
29
of a State or Territory.
30
Administrative law matters Part 9
Information management Division 2
Section 211
National Vocational Education and Training Regulator Bill 2010 No. , 2010 141
Subdivision C--VET student records
1
211 VET student records to be provided to National VET
2
Regulator--executive officers etc.
3
(1) A person who possesses or controls VET student records relating
4
to a training organisation or former registered training organisation
5
must provide a copy of those records to the National VET
6
Regulator if:
7
(a) the person is, or was, an executive officer or high managerial
8
agent of the organisation; and
9
(b)
either:
10
(i) the organisation's registration has been cancelled and
11
arrangements have not been made for the transfer of
12
some or all of the records under section 213; or
13
(ii) the organisation has effectively ceased to operate (even
14
though the organisation remains an NVR registered
15
training organisation).
16
(2) A person must provide a copy of VET student records to the
17
National VET Regulator within:
18
(a) if an organisation's registration has been cancelled--30 days
19
of the day from which cancellation takes effect; and
20
(b) if an organisation has effectively ceased to operate--30 days
21
of the day from which operations effectively ceased.
22
(3) A person commits an offence if the person fails to comply with
23
subsection (2).
24
Penalty: 150 penalty units.
25
(4) A person contravenes this subsection if the person fails to comply
26
with subsection (2).
27
Civil penalty:
300 penalty units.
28
Part 9 Administrative law matters
Division 2 Information management
Section 212
142 National Vocational Education and Training Regulator Bill 2010 No. , 2010
212 National VET Regulator may request VET student records to be
1
provided to Regulator
2
(1) This section applies if the National VET Regulator considers that a
3
person (other than someone mentioned in subsection 211(1)) may
4
hold VET student records relating to a training organisation or
5
former registered training organisation.
6
(2) The National VET Regulator may request, by notice in writing,
7
that the person provide a copy of those records to the Regulator
8
within a period specified in the notice.
9
213 Transfer of VET student records to another registered training
10
organisation
11
(1) If a VET student transfers from one registered training organisation
12
(the first registered training organisation) to an NVR registered
13
training organisation (the second registered training
14
organisation):
15
(a) the VET student may request the first registered training
16
organisation to transfer the VET student records relating to
17
the VET student to the second registered training
18
organisation; or
19
(b) the second registered training organisation may request, in
20
writing, the first registered training organisation to transfer
21
the VET student records relating to the VET student because
22
he or she has enrolled at the organisation.
23
(2) The second registered training organisation must advise, by notice
24
in writing, the National VET Regulator of the transfer of any VET
25
student records.
26
214 National VET Regulator's management of VET student records
27
(1) The National VET Regulator may provide a VET student record to
28
a registered training organisation if:
29
(a) the person to whom the record relates enrols at the
30
organisation and requests, in writing, the Regulator to
31
transfer it to the organisation; or
32
Administrative law matters Part 9
Information management Division 2
Section 214
National Vocational Education and Training Regulator Bill 2010 No. , 2010 143
(b) the organisation requests, in writing, the Regulator to transfer
1
it to the organisation because the person to whom the record
2
relates has enrolled at the organisation.
3
(2) If the National VET Regulator considers it appropriate to do so, the
4
Regulator may provide a VET student record to a registered
5
training organisation on its own initiative.
6
(3) If the National VET Regulator discloses personal information
7
under subsection (2), the Regulator must advise the person to
8
whom the VET student record relates, by notice in writing, of:
9
(a) the disclosure; and
10
(b) the details of the personal information disclosed.
11
12
Part 10 Reporting requirements
Section 215
144 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Part 10--Reporting requirements
1
2
215 Annual report
3
Annual report to be given to Minister
4
(1) The National VET Regulator must, as soon as practicable after
5
30 June in each financial year, prepare and give to the Minister, for
6
presentation to the Parliament, a report (an annual report) relating
7
to the performance of the Regulator's functions during the year.
8
Note:
See also section 34C of the Acts Interpretation Act 1901, which
9
contains provisions about annual reports.
10
(2) For the purposes of subsection (1), the period beginning on the day
11
this section commences and ending on 30 June 2012 is taken to be
12
a financial year.
13
Contents of annual report
14
(3) The National VET Regulator must include the following in the
15
annual report relating to a financial year:
16
(a) an assessment of the extent to which the Regulator's
17
operations during the year have contributed:
18
(i) to the objectives set out in the strategic plan applicable
19
for the year; and
20
(ii) to the objectives set out in the annual operational plan
21
for the year;
22
(b) particulars of variations (if any) of the strategic plan and the
23
annual operational plan taking effect during the year;
24
(c) an evaluation of the Regulator's performance during the year
25
against the key performance indicators agreed by the
26
Minister;
27
(d) an evaluation of the Regulator's overall performance during
28
the year against the other performance indicators set out in
29
the annual operational plan for the year;
30
(e) a statement about the Regulator's compliance, during the
31
year, with the Standards for VET Regulators;
32
Reporting requirements Part 10
Section 216
National Vocational Education and Training Regulator Bill 2010 No. , 2010 145
(f) a report on whether the service standards have been met by
1
the Regulator during the year, including reasons in any case
2
where the service standards have not been met;
3
(g) details of the number of directions given to the Regulator by
4
the Minister during the year;
5
(h) details of the number and types of matters relating to
6
vocational education and training which the Commonwealth,
7
State and Territory Education Ministers referred to the
8
Regulator during the year;
9
(i) details of the number and types of matters relating to
10
vocational education and training which the Ministerial
11
Council referred to the Regulator during the year;
12
(j) a general description of the Regulator's response to the
13
matters mentioned in paragraphs (h) and (i);
14
(k) the financial statements required by section 49 of the
15
Financial Management and Accountability Act 1997;
16
(l) an audit report on those statements under section 57 of the
17
Financial Management and Accountability Act 1997.
18
(4) The Minister must give a copy of the report to the relevant Minister
19
for each of the parties to the Ministerial Council (other than the
20
Commonwealth) at the same time as the report is presented to the
21
Parliament.
22
216 National Register
23
(1) The National VET Regulator must ensure that the following are
24
included on the National Register:
25
(a) the following details for each NVR registered training
26
organisation:
27
(i) the organisation's business name and business address;
28
(ii) the names of the organisation's executive officers and
29
high managerial agents;
30
(iii) the organisation's scope of registration;
31
(iv) the period for which the organisation is registered;
32
(v) any conditions imposed on the organisation's
33
registration under subsection 29(1);
34
Part 10 Reporting requirements
Section 216
146 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(vi) any VET qualifications or VET statements of attainment
1
issued by the organisation that have been cancelled;
2
(b) if all or part of an NVR registered training organisation's
3
scope of registration has been suspended--the following:
4
(i) the period and extent of the suspension;
5
(ii) the reason for the suspension;
6
(iii) the names of the organisation's executive officers and
7
high managerial agents;
8
(c) if an NVR registered training organisation's registration has
9
been cancelled--the following:
10
(i) the day from which cancellation takes effect;
11
(ii) the reason for the cancellation;
12
(iii) if applicable, the VET qualifications or VET statements
13
of attainment that have been cancelled;
14
(iv) the names of the organisation's executive officers and
15
high managerial agents;
16
(d) the following details for each VET accredited course:
17
(i) the person in respect of whom the course is accredited;
18
(ii) the person's name and address, or business name and
19
business address, as applicable;
20
(iii) the period for which the course is accredited;
21
(iv) any conditions imposed on the accreditation of the
22
course under subsection 48(1);
23
(e) if a VET accredited course is cancelled--the following:
24
(i) the person in respect of whom the course is accredited;
25
(ii) the person's name and address, or business name and
26
business address, as applicable;
27
(iii) the day from which cancellation takes effect;
28
(iv) the reason for the cancellation.
29
(2) The National VET Regulator may ensure that details are removed
30
from the National Register.
31
Example: The National VET Regulator may ensure that details about an NVR
32
registered training organisation whose registration has been withdrawn
33
are removed from the National Register.
34
(3) The regulations may set out matters that the National VET
35
Regulator must ensure are entered on the National Register.
36
Reporting requirements Part 10
Section 216
National Vocational Education and Training Regulator Bill 2010 No. , 2010 147
(4) Subsection (3) does not prevent the National VET Regulator from
1
ensuring that other matters are entered on the National Register.
2
(5) The National Register is to be made available for inspection on the
3
internet.
4
5
Part 11 Strategic and annual operational plans
Division 1 Strategic plans
Section 217
148 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Part 11--Strategic and annual operational plans
1
Division 1--Strategic plans
2
217 Development of strategic plan
3
(1) The National VET Regulator must develop, and prepare in written
4
form, a strategic plan, for a 3-year period, that:
5
(a) defines the principal objectives of the Regulator in
6
performing its functions during that 3-year period; and
7
(b) gives a broad outline of the strategies to be pursued by the
8
Regulator to achieve those objectives.
9
(2) A strategic plan is to relate to:
10
(a) for the first strategic plan--the 3-year period beginning on
11
1 July 2011; and
12
(b) for later strategic plans--a period beginning on the 1 July
13
immediately following the end of the 3-year period to which
14
the previous plan related.
15
(3) A strategic plan prepared under subsection (1) is not a legislative
16
instrument.
17
218 Approval of strategic plan
18
(1) The National VET Regulator must give a copy of a strategic plan
19
to the Minister for approval on or before:
20
(a) for the first strategic plan--the end of 2 months after the day
21
this section commences; and
22
(b) for later strategic plans--either:
23
(i) 31 January in the last year of the 3-year period to which
24
the previous plan related; or
25
(ii) a later day, but not later than 31 March, in the last year
26
of the 3-year period to which the previous plan related,
27
as allowed by the Minister.
28
(2) However, the National VET Regulator is not required to give a
29
copy of a strategic plan to the Minister for approval in a calendar
30
year if:
31
Strategic and annual operational plans Part 11
Strategic plans Division 1
Section 219
National Vocational Education and Training Regulator Bill 2010 No. , 2010 149
(a) the first year to which the plan would relate is a year to which
1
a previous strategic plan is in force; and
2
(b) the Minister determines, at the request of the Regulator, that
3
this subsection applies for the calendar year.
4
(3) A strategic plan comes into force on:
5
(a) the day on which it is approved by the Minister; or
6
(b) the first day of the period to which it relates;
7
whichever is later.
8
219 Variation of strategic plans
9
(1) The National VET Regulator may, at any time, review a strategic
10
plan, whether or not it has come into force, and consider whether a
11
variation to the plan is necessary.
12
Note:
See also section 221.
13
(2) The National VET Regulator may, with the approval of the
14
Minister, vary a strategic plan.
15
(3) The Minister may, at any time, request the National VET Regulator
16
to vary a strategic plan, whether or not it has come into force.
17
(4) If the Minister requests a variation of a strategic plan, the National
18
VET Regulator must, with the approval of the Minister, vary the
19
plan accordingly.
20
(5) If a variation of a strategic plan is approved by the Minister after
21
the plan has come into force, the plan as so varied continues in
22
force on and after the day the variation is so approved.
23
(6) Despite subsection (2), the National VET Regulator may vary a
24
strategic plan without the approval of the Minister if the variation
25
is of a minor nature. The plan as so varied continues in force on
26
and after the day the variation is made.
27
(7) If the National VET Regulator makes a variation of a minor nature,
28
the Regulator must inform the Minister of the variation as soon as
29
practicable after making it.
30
31
Part 11 Strategic and annual operational plans
Division 2 Annual operational plans
Section 220
150 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 2--Annual operational plans
1
220 Development of annual operational plan
2
(1) The National VET Regulator must give the Minister an annual
3
operational plan relating to the 12 month period:
4
(a) beginning on the day this section commences and ending on
5
30 June 2012--before the end of 2 months after the day this
6
section commences; and
7
(b) beginning on 1 July in a later calendar year--before 30 April
8
in that calendar year.
9
(2) An annual operational plan must:
10
(a) set out particulars of the action that the National VET
11
Regulator intends to take during the period to which the plan
12
relates in order to give effect to, or further, the goals set out
13
in the strategic plan applicable to the period; and
14
(b) include such performance indicators as the Regulator
15
considers appropriate against which the Regulator's
16
performance can be assessed during the period to which the
17
plan relates.
18
(3) An annual operational plan comes into force at the beginning of the
19
period to which the plan relates.
20
(4) For the purposes of this section, the period beginning on the day
21
this section commences and ending on 30 June 2012 is taken to be
22
a 12 month period.
23
(5) An annual operational plan is not a legislative instrument.
24
221 Variation of annual operational plan
25
When submitting to the Minister proposals for variation of a
26
strategic plan, the National VET Regulator must also
27
consequentially vary a relevant annual operational plan as required.
28
29
Strategic and annual operational plans Part 11
Compliance with plans Division 3
Section 222
National Vocational Education and Training Regulator Bill 2010 No. , 2010 151
Division 3--Compliance with plans
1
222 Compliance with plans
2
When performing functions and exercising powers, the National
3
VET Regulator and the Chief Executive Officer must take into
4
account the strategic plan and annual operational plan that is in
5
force.
6
7
Part 12 Miscellaneous
Division 1 Delegations
Section 223
152 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Part 12--Miscellaneous
1
Division 1--Delegations
2
223 Delegation by the Minister
3
The Minister may, by writing, delegate all or any of the Minister's
4
powers under this Act (other than under section 91 or 160) to:
5
(a) the Chief Commissioner; or
6
(b)
the
Secretary.
7
224 Delegation by the National VET Regulator--government
8
authorities etc.
9
(1) The National VET Regulator may, by writing, delegate all or any
10
of the Regulator's functions and powers to:
11
(a) a member of the staff of the Regulator; or
12
(b) a consultant engaged under section 184; or
13
(c) a Commonwealth authority; or
14
(d) a person who holds any office or appointment under a law of
15
the Commonwealth.
16
(2) The National VET Regulator may, by writing, delegate all or any
17
of the Regulator's functions and powers to:
18
(a) a State or Territory authority; or
19
(b) a person who holds any office or appointment under a law of
20
a State or Territory;
21
if the State or Territory concerned agrees to the delegation.
22
(3) A delegate under subsection (1) or (2) must comply with any
23
written directions of the National VET Regulator.
24
Sub-delegations
25
(4) A delegate under subsection (1) or (2) must not sub-delegate any or
26
all of the functions or powers delegated without the National VET
27
Regulator's written consent.
28
Miscellaneous Part 12
Delegations Division 1
Section 225
National Vocational Education and Training Regulator Bill 2010 No. , 2010 153
(5) A sub-delegate must comply with any written directions of the
1
delegate.
2
(6) If the delegate is subject to a direction in relation to the
3
performance of the function or the exercise of the power
4
sub-delegated under subsection (4), the delegate must give a
5
corresponding direction to the sub-delegate.
6
(7) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901
7
apply to a sub-delegation in the same way as they apply to a
8
delegation.
9
225 Delegation by the National VET Regulator--occupational
10
licensing bodies and other industry bodies
11
(1) The National VET Regulator may, by writing, delegate all or any
12
of the Regulator's functions and powers to an occupational
13
licensing body or other industry body (other than one covered by
14
section 224) that deals with, or has an interest in, matters relating
15
to vocational education and training.
16
(2) A delegate under subsection (1) must comply with any written
17
directions of the National VET Regulator.
18
226 Delegation by the National VET Regulator--NVR registered
19
training organisations
20
(1) The National VET Regulator may, by writing, delegate to an NVR
21
registered training organisation the Regulator's function of:
22
(a) amending the organisation's scope of registration; or
23
(b) accrediting a course; or
24
(c)
both:
25
(i) amending the organisation's scope of registration; and
26
(ii) accrediting a course.
27
(2) If the National VET Regulator delegates a function under
28
subsection (1) to an NVR registered training organisation, the
29
organisation must notify the Regulator, in writing, if it performs
30
the function.
31
Part 12 Miscellaneous
Division 1 Delegations
Section 226
154 National Vocational Education and Training Regulator Bill 2010 No. , 2010
(3) An NVR registered training organisation must notify the National
1
VET Regulator within 30 days of the function being performed.
2
Miscellaneous Part 12
Provisions affecting partnerships Division 2
Section 227
National Vocational Education and Training Regulator Bill 2010 No. , 2010 155
Division 2--Provisions affecting partnerships
1
227 Partnerships--rights and obligations
2
(1) This Act applies to a partnership as if it were a person, but with the
3
changes set out in this section and sections 135, 228 and 229.
4
(2) Any right that would otherwise be exercisable by the partnership is
5
exercisable by each partner instead.
6
(3) Any obligation that would otherwise be imposed on the
7
partnership:
8
(a) is imposed on each partner instead; but
9
(b) may be discharged by any of the partners.
10
(4) Subject to section 135, the partners are jointly and severally liable
11
to pay an amount that is payable, or becomes payable, in relation to
12
this Act.
13
228 Continuity of partnerships
14
For the purposes of the application of this Act to a partnership, a
15
change in the composition of the partnership does not affect the
16
continuity of the partnership.
17
229 Partnership ceases to exist
18
(1) If a partnership ceases to exist, the persons who were partners
19
immediately before the cessation must continue to satisfy any
20
applicable obligations imposed by this Act.
21
(2) Section 227 applies as if:
22
(a) references to a partnership were to a partnership that ceases
23
to exist; and
24
(b) references to partners of the partnership were to the persons
25
who were partners immediately before the cessation.
26
(3) For the purpose of this section, a partnership ceases to exist if the
27
dissolution of the partnership does not result in the creation of
28
another partnership.
29
Part 12 Miscellaneous
Division 3 Provisions affecting unincorporated associations
Section 230
156 National Vocational Education and Training Regulator Bill 2010 No. , 2010
Division 3--Provisions affecting unincorporated
1
associations
2
230 Unincorporated associations--rights and obligations
3
(1) This Act applies to an unincorporated association as if it were a
4
person, but with the changes set out in this section and sections 136
5
and 231.
6
(2) A right that would otherwise be exercisable by the unincorporated
7
association is exercisable by each member of the association's
8
committee of management instead.
9
(3) An obligation that would otherwise be imposed on the
10
unincorporated association:
11
(a) is imposed on each member of the association's committee of
12
management instead; but
13
(b) may be discharged by any of those members.
14
(4) Subject to section 136, the members are jointly and severally liable
15
to pay an amount that is payable, or becomes payable, in relation to
16
this Act.
17
231 Unincorporated association ceases to exist
18
(1) If an unincorporated association ceases to exist, the persons who
19
were members of the association's committee of management
20
immediately before the cessation must continue to satisfy any
21
applicable obligations imposed by this Act.
22
(2) Section 230 applies as if:
23
(a) references to an unincorporated association were to an
24
unincorporated association that ceases to exist; and
25
(b) references to members of the association's committee of
26
management were to the persons who were members
27
immediately before the cessation.
28
(3) To avoid doubt, for the purpose of this section, an unincorporated
29
association ceases to exist if the dissolution of the association does
30
not result in the creation of another association.
31
Miscellaneous Part 12
Miscellaneous Division 4
Section 232
National Vocational Education and Training Regulator Bill 2010 No. , 2010 157
Division 4--Miscellaneous
1
232 Fees
2
(1) The Minister may, by legislative instrument, determine the
3
amounts of fees the National VET Regulator may charge for goods
4
or services it provides in performing its functions (other than the
5
service mentioned in subsection 35(2)).
6
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
7
Instruments Act 2003 do not apply to a legislative instrument that
8
determines fees (see sections 44 and 54 of that Act).
9
(2) Before making a determination, the Minister must get the
10
Ministerial Council's agreement to the amount of a fee that:
11
(a) relates to goods or services in respect of registration as an
12
NVR registered training organisation; or
13
(b) relates to goods or services provided to NVR registered
14
training organisations; or
15
(c) relates to goods or services in respect of:
16
(i) the accreditation of a course as a VET accredited
17
course; or
18
(ii) VET accredited courses.
19
(3) Before making a determination, the Minister must consult the
20
National VET Regulator about the amount of a fee that relates to
21
goods or services not mentioned in subsection (2).
22
(4) The Minister may, in the determination made under subsection (1),
23
determine the way in which a fee is to be worked out.
24
(5) The Minister may, in the determination made under subsection (1),
25
determine other matters relating to the payment of fees, including:
26
(a) the circumstances in which fees may be paid in instalments;
27
and
28
(b) the circumstances in which fees may be set off against
29
another amount payable; and
30
(c) the circumstances in which fees may be waived.
31
(6) The fees determined under subsection (1) must not be such as to
32
amount to taxation.
33
Part 12 Miscellaneous
Division 4 Miscellaneous
Section 233
158 National Vocational Education and Training Regulator Bill 2010 No. , 2010
233 Protection from civil actions
1
(1) This section applies to:
2
(a) the National VET Regulator; and
3
(b) a Commissioner; and
4
(c) a member of the staff of the Regulator; and
5
(d) a consultant engaged by the Regulator.
6
(2) A person mentioned in subsection (1) is not liable to an action or
7
other proceeding for damages for or in relation to an act done or
8
omitted to be done in good faith:
9
(a) in the performance or purported performance of any of the
10
National VET Regulator's functions; or
11
(b) in the exercise or purported exercise of any of the
12
Regulator's powers.
13
234 Compensation for acquisition of property
14
(1) If the operation of this Act would result in an acquisition of
15
property from a person otherwise than on just terms, the
16
Commonwealth is liable to pay a reasonable amount of
17
compensation to the person.
18
(2) If the Commonwealth and the person do not agree on the amount
19
of the compensation, the person may institute proceedings in a
20
court of competent jurisdiction for the recovery from the
21
Commonwealth of such reasonable amount of compensation as the
22
court determines.
23
235 Regulations
24
(1) The Governor-General may make regulations prescribing matters:
25
(a) required or permitted by this Act to be prescribed; or
26
(b) necessary or convenient to be prescribed for carrying out or
27
giving effect to this Act.
28
(2) Without limiting subsection (1), the regulations may prescribe
29
scales of expenses to be allowed to persons required to give
30
information, documents or things under Division 1 of Part 5.
31