Commonwealth Numbered Regulations - Explanatory Statements
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NATIONAL VOCATIONAL EDUCATION AND TRAINING REGULATOR AMENDMENT (GOVERNANCE AND OTHER MATTERS) REGULATIONS 2020 (F2020L01505)
EXPLANATORY STATEMENT
Issued by the authority of Senator Michaelia Cash, Minister for Employment, Skills, Small and Family Business
National Vocational Education and Training Regulator Regulations 2011
National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Regulations 2020
AUTHORITY
Section 235 of the National Vocational Education and Training Regulator Act 2011 (the Act) empowers the Governor-General to make regulations prescribing matters:
* required or permitted by the Act to be prescribed; or
* necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
BACKGROUND
The Act establishes the National VET Regulator (the Regulator) and provides a legislative framework for the regulation of vocational education and training (VET). This legislative framework consists of the Act, the National Vocational Education and Training Regulator (Transitional Provisions) Act 2011, the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011, the National Vocational Education and Training Regulator (Charges) Act 2012 and associated subordinate legislation.
The National Vocational Education and Training Regulator Regulations 2011 (the Principal Regulations) contain provisions that prescribe:
* certain matters for certificates of registration of NVR Registered Training Organisations (NVR RTOs);
* certain conditions of registration of NVR RTOs;
* certain matters relating to infringement notices; and
* information to be entered on the National Register.
In late 2019 the Australian Government engaged experts to conduct a rapid review of the Australian Skills Quality Authority's (ASQA) regulatory practices, governance and culture. The first phase of the review recommended changes to ASQA's governance. The final report, Rapid Review of the Australian Skills Quality Authority's Regulatory Practices and Processes,[1] (ASQA Rapid Review) was published in April 2020. The ASQA Rapid Review concluded that while ASQA's overarching vision and purpose remain appropriate, some adjustments to its practices are needed to improve its engagement and communication with the sector, and ensure its regulatory approach is guided by regulatory necessity, risk and proportionality.
On 3 September 2020, the National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Act 2020 (the Amendment Act) was enacted. The Amendment Act includes amendments that strengthen the Regulator's governance arrangements in line with recommendations from the ASQA Rapid Review. Relevantly, the Amendment Act amendments replace the existing Chief Commissioner / Chief Executive Officer (CEO) and two Commissioners with a single independent statutory office holder, known as the National VET Regulator. These revised governance arrangements will commence on a time and day to be fixed by Proclamation (or if the provisions do not commence before 1 July 2021, they will commence on that day), at which time all references to 'Commissioner' in the Act will be repealed.
PURPOSE AND OPERATION
The National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Regulations 2020 (the Amendment Regulations) amend the Principal Regulations to repeal references to 'Commissioner’ and replace them with 'National VET Regulator' where relevant, so that the Principal Regulations are consistent with the Act.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation advised that a Regulation Impact Statement is not required (OBPR Reference ID: 25471).
COMMENCEMENT
The Amendment Regulations commence at the same time as Part 1 of Schedule 1 to the Amendment Act commences, to ensure that the Principal Regulations reflect the governance changes made by the Amendment Act from its commencement.
CONSULTATION
The Regulator and the states and territories have been consulted regarding the making of the Amendment Regulations. No concerns were raised regarding the measures.
Pursuant to clause 5.2 in the Intergovernmental Agreement for Regulatory Reform in Vocational Education and Training entered into between the Commonwealth and states and territories, the Commonwealth "will consult with States and Territories on proposals to make amendments to the National VET Regulator Legislation".
The Department of Education, Skills and Employment undertakes this consultation with the states and territories by consulting with the Skills Senior Officials' Network (SSON). SSON is comprised of senior officials from each state and territory government department responsible for VET.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Regulations 2020
The National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Regulations 2020 (the Amendment Regulations) are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Amendments
The Act establishes the National VET Regulator (the Regulator) and provides a legislative framework for the regulation of vocational education and training (VET). This legislative framework consists of the Act, the National Vocational Education and Training Regulator (Transitional Provisions) Act 2011, the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011, the National Vocational Education and Training Regulator (Charges) Act 2012 and associated subordinate legislation.
The National Vocational Education and Training Regulator Regulations 2011 (the Principal Regulations) contain provisions that prescribe:
* certain matters for certificates of registration of NVR Registered Training Organisations (NVR RTOs);
* certain conditions of registration of NVR RTOs;
* certain matters relating to infringement notices; and
* information to be entered on the National Register.
In late 2019 the Australian Government engaged experts to conduct a rapid review of the Australian Skills Quality Authority's (ASQA) regulatory practices, governance and culture. The first phase of the review recommended changes to ASQA's governance. The final report, Rapid Review of the Australian Skills Quality Authority's Regulatory Practices and Processes, (ASQA Rapid Review) was published in April 2020.[2]
On 3 September 2020, the National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Act 2020 (the Amendment Act) was enacted. The Amendment Act includes amendments that strengthen the Regulator's governance arrangements in line with recommendations from the ASQA Rapid Review. Relevantly, the Amendment Act amendments replace the existing Chief Commissioner / Chief Executive Officer (CEO) and two Commissioners with a single independent statutory office holder, known as the National VET Regulator.
The National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Regulations 2020 (the Amendment Regulations) amend the Principal Regulations to repeal references to 'Commissioner' and replace them with 'National VET Regulator' where relevant, so that the Principal Regulations are consistent with the Act.
Human rights implications
The Amendment Regulations engage the following human rights:
* the right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (read with Article 2) and Article 1 of the International Labour Organization's Human Resources Development Convention (ILO Convention No. 142); and
* the right to work in Article 6 of the ICESCR (read with Article 2) and Article 1 of the International Labour Organization's Employment Policy Convention (ILO Convention No. 122).
Right to education
The Amendment Regulations engage Article 1(1) of the ILO Convention No. 142, which provides that each member shall adapt and develop comprehensive and coordinated policies and programs of vocational guidance and vocational training closely linked with employment.
The Amendment Regulations engage Article 2(1) of the ICESCR, which provides that each state party to that covenant undertakes to take steps to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in that covenant by all appropriate means, including particularly the adoption of legislative measures. Relevantly:
* Article 13(1) provides that parties to the covenant recognise the right of everyone to education; agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms; and agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all the nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace; and
* Article 13(2)(b) provides that secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education.
Broadly, the measures in the Amendment Act and, accordingly, the Amendment Regulations are all designed to improve and enhance the Regulator's ability to regulate the VET sector, leading to improvements in students' educational outcomes. The measures in the Amendment Regulations therefore generally have a positive impact on the right to education and promote that right.
Right to work
The Amendment Regulations engage Article 1(1) of the ILO Convention No. 122, which provides that, with a view to stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment, each member shall declare and pursue, as a major goal, an active policy to promote full, productive and freely chosen employment.
The Amendment Regulations engage Article 2(1) of the ICESCR. Relevantly:
* Article 6(1) of the ICESCR provides that State Parties recognise the right to work;
* Article 6(2) of the ICESCR sets out the steps to be taken by State Parties to achieve full realisation of that right, including providing technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedom to the individual.
Broadly, the measures in the Amendment Act and, accordingly, the Amendment Regulations are all designed to improve and enhance the Regulator's ability to regulate the VET sector, leading to improvements in students' educational outcomes and ultimately in their preparedness to take up opportunities to work. The measures in the Amendment Regulations therefore generally have a positive impact on the right to work and promote that right.
Conclusion
The Amendment Regulations are compatible with human rights as they promote the right to work and the right to education under the ICESCR and ILO conventions listed above.
Minister for Minister for Employment, Skills, Small and Family Business, Senator Michaelia Cash