Bills Digest. 74, 2019–20
PDF version [645KB]
Dr Hazel Ferguson
Social Policy Section
31
January 2020
Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Other provisions
Concluding comments
Date introduced: 4
December 2019
House: Senate
Portfolio: Employment,
Skills, Small and Family Business
Commencement: Schedule
1 contains the main amendments, and commences 1 July 2020. Schedules 2 and 3
commence the day after the Act receives Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at January 2020.
The main purpose of the National
Vocational Education and Training Regulator Amendment Bill 2019 (the Bill) is
to amend the National
Vocational Education and Training Regulator Act 2011 (the NVETR Act),
under which the national vocational education and training (VET) regulator, the
Australian Skills Quality Authority
(ASQA), operates. In part, the amendments give effect to the Australian
Government’s response to two recent reviews: All Eyes On Quality:
Review of the National Vocational Education and Training Regulator Act 2011 Report
(the Braithwaite Review) and Strengthening Skills:
Expert Review of Australia's Vocational Education and Training System
(the Joyce Review).[1]
Specifically, the Bill proposes changes to the NVETR Act in relation to
arrangements for:
- provider
registration
- course
accreditation
- cancellation
of VET qualifications and VET statements of attainment and
- a
number of administrative matters, including information disclosure, VET student
records, the National Register (the Register), and the appointment of Acting
Commissioners.
The Bill also includes a number of minor technical amendments,
including to the National
Vocational Education and Training Regulator (Transitional Provisions) Act 2011,
which are not discussed in this Bills Digest.
ASQA is the national regulator for Australia’s VET sector,
with responsibility for:
- registration
of training providers
- accreditation
of VET accredited courses and
- registration
of VET and English language course providers who wish to offer courses to
overseas students studying in Australia (CRICOS).[2]
ASQA was created in 2011 under the NVETR Act, to
give effect to a Council of Australian Governments (COAG) decision of December
2009.[3]
All states except Victoria and Western Australia have referred powers for VET
regulation to the Commonwealth, so providers based or offering training in
those states, or to overseas students, must register with ASQA.[4]
At January 2020, 3,683 registered training organisations (RTOs) were
listed on the Register as being registered with ASQA, representing the majority
of the 4,070 RTOs with current registration.[5]
The Standards for VET
Regulators 2015, made under section 189 of the NVETR Act, mandates a:
... risk-based approach to the regulation of RTOs that is
informed by assessments of RTO compliance with the Standards for RTOs on an
ongoing basis. This risk management approach enables VET Regulators to more
actively and regularly apply strategies to reduce the regulatory burden for
high-performing RTOs with a history of strong compliance and to increase
regulatory action for those RTOs considered as higher risk.[6]
In line with these requirements, in 2016 ASQA moved from a
process-based, to a student-centred, audit approach, with ‘a greater focus on
the student experience and the practices of RTOs’.[7]
This approach follows the key phases of student experience, from marketing and
recruitment, through enrolment, support and progression, training and assessment,
to completion.[8]
While this shift has been supported by key stakeholders, ASQA’s
role continues to attract considerable scrutiny.[9]
In part this is explained by the inherent challenges of being the regulator for
a sector of over 4,000 diverse providers. However, recurrent quality issues,
particularly linked to the misuse of the former VET FEE-HELP scheme by
unscrupulous providers, have raised questions about whether ASQA is equipped
for its role.[10]
Two key recent reviews of the Australian VET system have addressed this issue, as
detailed below.
The Braithwaite Review was commissioned in June 2017 to
specifically examine the NVETR Act and its associated legislative
framework.[11] All Eyes On Quality:
Review of the National Vocational Education and Training Regulator Act 2011 Report
was delivered in January 2018.[12]
Importantly, it found:
There was general agreement that ASQA had sufficient
legislative powers but that it needed to utilise a broader range of
interventions and compliance processes to encourage continuous quality
improvement to address shortcomings in training and assessment and student
outcomes.[13]
However, some significant problems were identified in the
relationship between ASQA and RTOs:
There were concerns about the compliance burden on RTOs, the
inconsistency of audits and auditors, the difficulty in making sense of ASQA’s
regulatory approach, and a disconnect from what RTOs considered important for
regulation of the sector. In short, ASQA’s regulatory task is made more
difficult and the sector’s anxieties are increased by a lack of supportive
regulatory conversations. A new path for restoring some balance in this regard
has been opened through a general appreciation of ASQA’s move to its new audit
model that recognises the need to prioritise the student experience and
outcomes.[14]
The Braithwaite Review put forward 23 recommendations, addressing
ASQA’s engagement with the sector, registration requirements, teaching quality,
collection and sharing of data, and protecting and informing students.[15]
The Australian Government response supported nine of these, and 11 in principle.[16]
The Joyce Review was commissioned on November 2018 to
examine Australia’s VET sector as a whole.[17]
Strengthening
Skills: Expert Review of Australia's Vocational Education and Training System
was delivered in March 2019.[18]
The Joyce Review draws on the Braithwaite Review and its own consultations, and
in relation to ASQA was:
... concerned about the quite surprising high levels of
disquiet in the provider community about the way ASQA currently conducts its
regulatory activity. There is always some tension to be expected between the
regulator and the regulated, but it is apparent the issues expressed in this
case go beyond that sort of healthy tension ...
Many providers worry whether ASQA will treat them fairly and
reasonably during the audit process. They have little understanding of the
approach ASQA will take when it comes time for their next audit.[19]
The Joyce Review recommendations were wide ranging, and
included:
- ASQA
be required to release publicly all concluded audit reports
- in
the longer term, ASQA expand its auditing role to ranking providers on the
quality of their offerings
- ASQA
be given new powers to better control the registration of RTO, as recommended
in the Braithwaite Review
- the
relevant Commonwealth department manage annual independent surveys of RTOs
about ASQA’s performance
- the
Skills Council mandate an agenda to reduce duplication and minimise reporting
burdens for RTOs by negotiating common audit standards between Commonwealth and
state and territory regulators.[20]
The Government’s response to the Joyce Review, announced
in the 2019–20 Budget, included ‘18.1 million to ensure ASQA is a modern and
effective regulator focused on fostering excellence across the sector’, in
response to the Braithwaite and Joyce reviews.[21]
At its first meeting on 20 September 2019, the Skills
Council agreed that ASQA ‘should improve its engagement with the VET sector and
expand its educative role’.[22]
The Australian Government later confirmed this would involve regulatory reforms
in response to the Braithwaite Review and the Joyce Review, but little
additional detail was provided.[23]
The Bill appears to give effect to the aspects of these announcements requiring
legislation.
However, importantly, it is not the only work currently
being undertaken on ASQA’s role. As the Braithwaite Review identifies:
Regulatory philosophy and culture contextualise legislative
provisions and give them meaning in practice. Different meanings will lead to
different enactments of the same legislative provision. Changing legislation
without addressing the culture driving its interpretation will not necessarily
produce the outcomes expected.[24]
In October 2019, a further review was announced, this time
focusing on ASQA’s ‘governance, policies and culture’ to ‘inform a 12 to 18
month program of improvements that will ensure regulation by ASQA is
transparent and effective’.[25]
At its 20 September 2019 meeting, the Skills Council also
agreed to progress work on another quality issue, unduly short courses (in
which the volume of learning provided by the RTO is insufficient for students
to meet the outcomes of the course).[26]
At its meeting of 4 December 2019, the Senate Selection of
Bills Committee deferred consideration of the Bill to its next meeting.[27]
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had not considered the Bill.[28]
At the time of writing, non-government
parties/independents have not commented on the details of the Bill.
At the time of writing, major interest groups have not
commented on the details of the Bill.
The Explanatory
Memorandum to the Bill states that it has no financial impact on the Commonwealth
or ASQA-registered RTOs.[29]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[30]
At the time of writing, the Parliamentary Joint Committee
on Human Rights had not considered the Bill.[31]
In order for an application for registration to be approved
by ASQA, a VET provider must demonstrate compliance with:
- the
VET Quality Framework, which comprises the:
- the Higher Education Support Act 2003, if the RTO is a VET provider under
that Act, and the VET Student Loans Act 2016, if the RTO is an
approved course provider under that Act[34]
- requirements
to notify ASQA of any material changes to the organisation or its operations[35]
- information
requests from ASQA, providing notice is given in writing and the information is
to be used for the purposes of the NVETR Act[36]
- any
other requests for cooperation from ASQA, to the extent that the request is
necessary for ASQA to perform its functions, or would facilitate ASQA’s
performance of its functions[37]
- any
general directions given by ASQA and published on its website, in relation to
how the VET Quality Framework and other conditions of registration are to be
complied with[38]
and
- any
other conditions imposed on the organisation’s registration, either at the time
of registration or later.[39]
Item 7 inserts proposed section 22A, with
the effect of adding an additional registration condition for applicants to
demonstrate commitment and capability to deliver quality VET. This requirement
is consistent with the VET Quality Framework currently in place, where, for
example, standard 5.1(c) of the Standards for
Registered Training Organisations (RTOs) 2015, made under subsection 185(1)
and subsection 186(1) of the NVETR Act, requires that:
Prior to enrolment or the commencement of training and
assessment, whichever comes first, the RTO provides, in print or through
referral to an electronic copy, current and accurate information that enables
the learner to make informed decisions about undertaking training with the RTO
and at a minimum includes ...
... the RTO’s obligations to the learner, including that the
RTO is responsible for the quality of the training and assessment in compliance
with these Standards, and for the issuance of the AQF certification
documentation.
However, there is currently no requirement in the primary
legislation that applicants demonstrate such a commitment.
Item 14 inserts additional requirements for
applicants to comply with information requests at proposed subsection 26(3).
Currently, as outlined above, an ASQA-registered RTO must comply with information
requests from ASQA providing notice is given in writing and the information is
to be used for the purposes of the NVETR Act. Under proposed subsection
26(3), ASQA-registered RTOs will also be required to produce any documents
ASQA requests, providing the same notice and use conditions are met. Proposed
subsection 26(4) specifies that the notice requiring access to documents
under proposed subsection 26(3) must specify the period within which,
and the manner in which, the documents are to be produced.
Item 15 inserts proposed sections 26A and 26B,
which specify further conditions for accessing documents under proposed
subsection 26(3):
- proposed
section 26A allows ASQA to inspect a document obtained under proposed subsection
26(3), and make and retain copies of, or take and retain extracts from, the
document and
- proposed
section 26B allows ASQA to take and retain possession of a document
obtained under proposed subsection 26(3) for as long as is necessary,
but:
- requires
ASQA to provide the person otherwise entitled to the document with a certified
copy as soon as practicable
- specifies
that the certified copy must be received in all courts and tribunals as
evidence as if it were the original and
- specifies
that until the certified copy is provided, ASQA must allow the person otherwise
entitled to its possession, or a person authorised by that person, to inspect
and make copies of, or take extracts from, the document.
Item 17 makes changes to the section 29 provisions
for ASQA to impose other conditions on an RTO, either at the time of
application, or later, by inserting the words ‘or remove’, with the effect that
ASQA can remove a condition―the provision currently only allows ASQA to
vary a condition.
Item 19 makes changes to the section 30 provisions
for ASQA to notify an RTO of a change in conditions of registration. Currently,
ASQA must notify the RTO in writing, within 30 days, of its decision to impose
or vary a condition, and the advice must include the decision, reasons for the
decision, and period for which the condition is imposed. Proposed subsection
30(2) allows that the period for which the condition is imposed may either
be specified in the notice, or ‘ascertained in accordance with the notice’. The
Explanatory Memorandum to the Bill provides the example of a period which
ceases when the RTO advises ASQA that a particular action has been taken.[40]
Proposed subsection 30(3) imposes the same notice requirements currently
in place for imposing or varying a condition, to the removal of a condition.
Subsection 17(3) allows ASQA to ensure an applicant’s
compliance with the application requirements by conducting an audit of any
matter relating to the application. Currently, a registration audit is
conducted if an application is complete and passes an initial risk assessment,
which examines if the provider is likely to meet the Fit and Proper Person
Requirements and Financial Viability Risk Assessment Requirements.[41]
As such, all successfully ASQA-registered RTOs would be subject to such an
audit. The audit begins with a desk analysis of application materials, and may
involve requests for additional information or a site visit if necessary, to
confirm the accuracy of application evidence and suitability of facilities and
resources for training and assessment.[42]
The outcomes of the audit are documented in a report, a copy of which is
provided to the applicant.[43]
Item 3 inserts proposed section 17A, which requires
ASQA to prepare a report if a registration audit is conducted. It also provides
that the report must be in a form (if any) approved by the Minister, comply
with the requirements of any audit rules made for the purposes of the
paragraph, and must not include personal information, unless the personal
information is the name of the applicant or an ASQA-registered RTO.
If an application is approved, the applicant is provided
with:
- written
notice of approval, including a certificate of registration
- information
about the qualifications and/or units of competency the provider is registered
to deliver
- details
about the commencement date and period of time the registration covers and
- any
conditions of registration.[44]
Item 84 inserts proposed Division 3B―Audit
Report rules. Proposed section 231B provides that the Minister may,
by legislative instrument, make audit report rules prescribing
matters required or permitted by the NVETR Act to be prescribed by the
rules.
Currently, under subsection 31(3), if an ASQA-registered
RTO has applied for a renewal of registration, its existing registration
continues until the outcome of the application is decided. Item 20 repeals
this subsection, and substitutes:
- proposed
subsection 31(3), which provides that if an RTOs registration is due to
expire before an application for renewal is decided, then the registration is
taken to continue until either ASQA’s decision to refuse renewal takes effect,
or the day after the application for renewal is approved
- proposed
subsection 31(3A), which provides that in the case of an application for
renewal being refused, ASQA must notify the organisation of the refusal, which
will take effect either at the start of the day the notice is given, or at a
later date if specified
- proposed
subsection 31(3B), which provides that in the case of an application for
renewal being approved, ASQA must determine how long the RTO’s new registration
period will be―the renewal commences the day after the previous
registration expired, or would have expired
- proposed
subsection 31(3C), which restricts the registration period to a maximum of
seven years.
Items 4, and 6 make consequential amendments to
section 20, which deals with applications. Subparagraph 20(1)(a)(i) currently states
that if an application is for a renewal of registration, then the commencement
date for an approved application will be the day the previous registration
expires. Item 4 repeals the subparagraph, and replaces it with a
reference to the provisions in proposed subsection 31(3B). Item 6
repeals the note to subsection 20(1), to reflect proposed subsection 31(3).
Subsection 35(1) of the NVETR Act allows ASQA to
conduct an audit at any time to check if an ASQA-registered RTO is compliant
with the VET Quality Framework.[45]
Item 21 inserts a heading, ‘compliance audits’ above the subsection.
Item 22 inserts a number of requirements relating
to such audits, at proposed subsections 35(1A) to 35(1D):
- ASQA
must prepare a report of a compliance audit
- the
report must be in a form (if any) approved by the Minister, and comply with the
requirements (if any) prescribed by the audit report rules made for the purpose
- the
report must not include personal information, unless the personal information
is the name of the RTO to which the report relates and
- ASQA
must comply with the requirements (if any) prescribed by the audit report rules
relating to the publication of the report.
It also inserts a heading ‘reviewing or examining an NVR
registered training organisation’s operations’ below the proposed subsections,
to clarify the different scope of the following subsection, 35(2), which allows
ASQA to examine any aspect of an RTO’s operations for the purposes of
addressing systematic issues in relation to the quality of the VET sector.
As outlined above, item 84 inserts proposed
Division 3B―Audit Report rules. Proposed section 231B provides
that the Minister may, by legislative instrument, make audit report rules
prescribing matters required or permitted by the NVETR Act to be
prescribed by the rules.
In addition to registering and quality assuring training providers,
ASQA has responsibility for assuring VET accredited courses,
which are a form of nationally recognised VET that operates as an alternative
to the more commonly used training packages.[46]
Training packages are ‘occupational skills standards
against which training delivery and assessment of competency can take place.’[47]
Organised around particular occupational groupings, such as health or aged
care, training packages are made up of units of competency. Each unit specifies
competencies students must demonstrate, including performance criteria, and
evidence, required knowledge, and assessment conditions.[48]
Under section 3 of the NVETR Act the authority to endorse training
packages sits with the Skills Council, and a process of detailed consultation
informs this endorsement process.[49]
As an alternative to training packages, VET
accredited courses can be developed where a skill need is not covered
by a training package, often in the case of a rapidly emerging need, or highly
specialised area.[50]
Copyright on accredited courses is held by the organisation that develops them.
Under section 44 of the NVETR Act, ASQA may grant
an application for the accreditation of a VET accredited course.[51]
The conditions for course accreditation by ASQA are not currently specified in
detail in the NVETR Act. Under section 44, ASQA may grant an application
for the accreditation of a course, with reference to whether the course meets
the Standards
for VET Accredited Courses 2012, and the AQF. Section 47 of the NVETR
Act further requires that a person comply with any conditions imposed on
the accreditation of a VET accredited course under subsection 48(1). Subsection
48(1) allows ASQA to impose conditions on the accreditation of a VET accredited
course, but does not specify further general conditions.
Item 28 repeals section 47, and inserts sections
specifying conditions for course accreditation, in similar terms to the requirements
for RTO registration:
- proposed
section 47 requires a person who has a VET course accredited to comply with
conditions set out in sections 47A, 47B, and 47C, as well as any conditions
imposed under subsection 48(1)
- proposed
section 47A requires the person to comply with the Standards for VET
Accredited Courses, currently the Standards
for VET Accredited Courses 2012
- proposed
section 47B requires the person to ensure the course meets the AQF and
- proposed
section 47C requires compliance with general directions given by ASQA,
providing such directions are given in writing and published on the ASQA
website.
Item 29 inserts ‘or remove’ into subsection 48(2), with
the effect that ASQA can remove a condition of course accreditation―the
provision currently only allows ASQA to vary a condition.
Item 31 amends section 49, which mandates a 30 day
notice period for ASQA to impose or vary a condition of accreditation on a VET
accredited course. Consistent with the amendments related to notice
periods for varying conditions associated with RTO registration, this change
allows the notice period to be specified in the notice (proposed paragraph
49(2)(a)) or ascertained in accordance with the notice (proposed
paragraph 49(2)(b)). Likewise, proposed subsection 31(3) is inserted
to deal with ASQA’s powers to remove a condition of course accreditation. The
subsection would require ASQA to notify the relevant person of its decision to
remove a condition on the course accreditation, within 30 days, and provide the
decision, and reason for the decision, in writing.
Like RTO registration, course accreditation is for a
limited time, and the relevant person must make an application for renewal
under section 44 of the NVETR Act if they wish to continue offering the
course after the accreditation expiry date. Under subsection 50(3),
accreditation for the course is taken to continue until the person’s
application is decided. Item 32 repeals the subsection, and replaces it with
provisions in similar terms to the requirements for RTO registration renewal at
item 20. That is:
- proposed
subsection 50(3) provides that if course accreditation is due to expire
before an application for renewal is decided, then the accreditation is taken
to continue until either ASQA’s decision to refuse takes effect, or the day
after the application for renewal is approved
- proposed
subsection 50(3A) provides that in the case of an application for renewal
being refused, ASQA must notify the relevant person of the refusal, which will
take effect either at the start of the day the notice is given, or at a later
date if specified
- proposed
subsection 50(3B) provides that in the case of an application for renewal
being approved, ASQA must determine how long the course’s new accreditation
period will be―the renewal commences the day after the previous accreditation
expired, or would have expired and
- proposed
subsection 50(3C) restricts the accreditation period to a maximum of five
years.
Nationally recognised VET study can be a full qualification,
made up of a series of units, as listed in the Australian Qualifications
Framework (AQF), such as a Certificate III or Diploma, but is frequently
taken as fewer units, including as ‘skill sets’ where a smaller number of
associated units or modules are grouped together for the purposes of achieving
capability in a specific area of practice.[52]
When a student completes, they are provided with a qualification, or if they
have completed some accredited units of study but not a full qualification, a
statement of attainment is provided.[53]
Currently, subsection 56(1) of the NVETR Act allows
ASQA to cancel a VET qualification or VET statement of attainment issued to a
person by an ASQA-registered RTO if ASQA is satisfied on reasonable grounds
that the qualification or statement of attainment is not valid―for
example paragraph 56(1)(c) allows cancellation if the qualification or
statement was outside the scope of the RTO’s registration (such as an RTO issuing
a Health qualification when they are only registered to provide training in the
field of Business Services). However, subsection 56(2) provides that ASQA may
only take action under subsection 56(1) if ASQA gives the organisation a
written direction requiring the organisation to cancel the VET qualification or
statement of attainment and notify the person concerned, in writing, of the
cancellation, within a specified period of time, and the organisation fails to
comply with the direction within the period specified in the direction. In the
alternative, under subsection 56(4), ASQA may take action under subsection
56(1) at any time if the organisation is no longer a RTO.
Item 34 inserts proposed subsection 56(3A),
which would allow ASQA to cancel the qualification or statement of attainment
if it believes on reasonable grounds that a direction to the organisation under
subsection 56(2) would not be complied with.
Item 35 inserts proposed subsection 56(5),
which avoids doubt by specifying that ASQA must not take action under
subsection 56(1) unless it is covered by subsections 56(2), 56(3A) or 56(4).
Item 36 adds a civil penalty provision at proposed
section 61A, which specifies that if an organisation is given a direction under
subsection 56(2) and fails to comply within the time specified in the
direction, they will be liable to a civil penalty of 100 penalty units
($21,000).[54]
Subsection 157(1) of the NVETR Act states that the
National VET Regulator’s functions are:
- to register an organisation as an NVR registered
training organisation;
- to accredit courses that may be offered and/or
provided by registered training organisations;
- to carry out compliance audits of NVR registered training
organisations;
- to promote, and encourage the continuous
improvement of, a registered training organisation’s capacity to provide a VET
course or part of a VET course;
- if requested to do so by the Minister, or on the
Regulator’s own initiative, to advise and make recommendations to the Minister
on matters relating to vocational education and training;
- if requested to do so, in writing, by the Education
Minister for a State or Territory, or on the Regulator’s own initiative, to
advise and make recommendations to the Education Minister for the State or
Territory on specific matters relating to vocational education and training in
the State or Territory;
- if requested to do so, in writing, by the Chair of
the Ministerial Council, or on the Regulator’s own initiative, to advise and
make recommendations to the Ministerial Council on general matters relating to
vocational education and training in all jurisdictions;
- to collect, analyse, interpret and disseminate
information about vocational education and training;
- to publish performance information, of a kind
prescribed by the regulations, relating to NVR registered training
organisations;
- to conduct training programs relating to the
regulation of registered training organisations and/or the accreditation of
courses;
- to enter into arrangements with occupational
licensing bodies, other industry bodies, or both, for the purpose of ensuring
compliance by NVR registered training organisations with this Act;
- to cooperate with a regulatory authority of another
country that has responsibility relating to the quality or regulation of
vocational education and training for all, or part, of the country;
- to develop relationships with its counterparts in
other countries;
- to develop key performance indicators, to be agreed
by the Minister, against which the Regulator’s performance can be assessed each
financial year;
- to develop service standards that the Regulator
must meet in performing its functions;
- any other function relating to vocational education
and training that is set out in a legislative instrument made by the Minister;
- such other functions as are conferred on the
Regulator by or under:
- this Act; or
- the Education Services for Overseas Students
Act 2000 or any other law of the Commonwealth;
- to do anything incidental to, or conducive to, the
performance of any of the above functions.
There are currently several sections in the NVETR Act that
mean the Australian Parliament is not able to amend the NVETR Act to
expand the scope of ASQA’s powers at the expense of state powers without state
agreement:
- subsection
5(4) allows a state to stop being a referring state
- section
10 allows a referring state to make a law declaring a matter to be excluded
(meaning the NVETR Act would not apply for the purposes of that matter)
- section
11 allows that if there is a conflict between state law and the NVETR Act,
the state law will prevail and
- subsection
157(3) provides that the Minister must not set out a function in a legislative
instrument under paragraph 157(1)(p) (discussed above, this gives ASQA the
ability to undertake ‘any other function relating to vocational education and
training that is set out in a legislative instrument made by the Minister’)
unless the Ministerial Council has agreed to the function. That is, the
Minister cannot make regulations giving ASQA additional functions without the
agreement of the Ministerial Council.
The NVETR Act gives the Minister the power under
subsection 160(1) to give ASQA direction, by legislative instrument, if they
consider the direction is necessary to protect the integrity of the VET sector.
Under subsection 160(2), the direction must not cover provider registration,
course accreditation, a particular ASQA-registered RTO, or a particular person
to whom a particular VET accredited course is accredited.[55]
That is, the Minister may provide general direction, but may not interfere with
ASQA’s decision-making regarding applications for provider registration or
course accreditation.
Item 49 revises the wording of subsection 160(1),
so that it reads: ‘The Minister may, by legislative instrument, give directions
to the National VET Regulator in relation to the performance of its functions
and the exercise of its powers.’ This omits the requirement that such
directions be ‘necessary to protect the integrity of the VET sector’. However,
as no change to subsection 160(2) is proposed, ASQA would still exercise
independent judgment regarding applications for provider registration or course
accreditation.
There are a number of information sharing provisions in Part
9 of the NVETR Act, under Division 2. Under subsection 205(1), ASQA may
disclose information, for the purpose of administering laws relating to
vocational education and training, to:
- the
Secretary
- a
Commonwealth authority
- a
state or territory authority
- a
person who holds any office or appointment under a law of the Commonwealth, a
state or territory
- another
VET Regulator
- the
National Centre for Vocational Education Research (NCVER) (or any successor of
that body).
Item 63 amends section 205 to omit ‘or any
successor of that body’ after the NCVER.
Item 64 adds a tuition assurance scheme
operator to the list of bodies ASQA may disclose information to.[56]
Item 65 adds proposed subsection 205(1A), which
provides that ASQA may disclose information under subsection 205(1) electronically.
Currently, under subsection 205(2), if personal
information is disclosed under subsection 205(1), this must be
disclosed to the individual the information relates to, unless the disclosure
is to the Secretary, a Commonwealth authority, a state or territory authority,
or another VET Regulator.[57]
Item 66 amends the paragraph references in this section with the effect
that only disclosure to a person who holds any office or appointment under a
law of the Commonwealth, a state or territory would need to be disclosed to the
individual. This means disclosure of personal information to the NCVER under
section 205(1) would no longer be notifiable, and disclosure to a tuition
assurance scheme operator would not be notifiable.
Section 205A deals with disclosure of VET
information.[58]
It allows ASQA to disclose VET information to a Commonwealth
authority or a state or territory authority, if ASQA is satisfied that the
disclosure is necessary to enable or assist the authority to perform or
exercise any of the authority’s functions or powers, or a Royal Commission. If VET
information disclosed to a Royal Commission is personal
information, ASQA must advise the person of the details of the disclosure
in writing. Item 67 adds proposed subsection 205A(1A), which provides
that ASQA may disclose information under subsection 205(1) electronically.
Subsection 209(1) allows ASQA to release information to
the public, if ASQA is satisfied that the release would reasonably inform a
person’s choice to enrol as a VET student with a RTO, would encourage
improvement in the quality of VET services, or would encourage compliance with
the VET Quality Framework. Under subsection 209(2), this information may be
released by ASQA authorising release by a Commonwealth authority, a state or
territory authority, or a person who holds any office or appointment under a
law of the Commonwealth, a state or territory. Item 69 amends the
subsection to add a tuition assurance scheme operator to the list
of bodies ASQA may authorise to release information.
Item 70 inserts proposed section 209, which
includes provisions for the department with responsibility for VET policy and
programs to release to the public information about VET provided by a RTO, and
experiences, for students and employers with an RTO. Proposed subsection
209A(2) provides that the Secretary may provide for this information to be
released by the NCVER. However, proposed subsection 209A(3) clarifies
that this section does not authorise the release of personal information,
unless the personal information is the name or a registered training
organisation. The NCVER currently provides a range of research products, including
the National
Student Outcomes Survey, an annual survey of students who completed VET
study in Australia during the previous year.[59]
Under subsection 211(1), if an RTO has its registration
cancelled, or ceases to operate, a person who was an executive officer or high
managerial agent of the RTO must provide ASQA with the RTO’s VET student
records, if they possess or control them. Subsection 211(2), the records must
be provided within 30 days of the registration being cancelled or, in cases
where a provider has effectively ceased to operate, when operations ceased
(even if their registration remains current at that time).
Item 72 inserts proposed subsection 211(2A),
which requires the person to provide a copy of the VET student records to ASQA
in electronic form in accordance with information technology requirements
specified in an instrument, if the instrument has been made.
Proposed subsection 211(2B) allows ASQA to make the
legislative instrument specifying information technology requirements for the
purposes of proposed subsection 211(2A). Proposed subsection 211(2D) provides
that the instrument will be disallowable, and proposed subsection 211(2E) provides
that it will be subject to sunsetting.
Proposed subsection 211(2C) allows ASQA to waive
compliance with the requirements of subsection 211(2A) in a particular case.
Currently, failure to provide the VET student records in
accordance with the required timeframes as set out in subsection 211(2), is
subject to a penalty of 150 penalty units,[60]
or in the alternative, a civil penalty of 300 penalty units.[61]
Item 73 proposes to add reference to subsection 211(2A) to these
provisions, so that failure to provide the records in the prescribed electronic
form is also subject to the penalty provisions.
Section 212 also allows ASQA to request, in writing, that
a person provide a copy of VET student records, if they believe that any other
person (not covered by subsection 211(1)) holds VET student records relating to
a RTO or former RTO. Item 74 adds provisions to section 212 in similar
terms to those added to section 211, with the effect that ASQA may specify, by
legislative instrument subject to disallowance and sunsetting, information
technology requirements for the purposes of providing VET student records, and
if such an instrument is in force the notice from ASQA may specify that these
requirements are to be followed by the person providing the records.[62]
No offence provisions are proposed for this section.
Currently, ASQA has a range of responsibilities for
maintaining the information about VET contained on the Register at
training.gov.au. These are set out in section 216. The Bill proposes a number
of amendments to these arrangements:
- item
75 repeals the current requirement for ASQA to ensure an ASQA-registered
RTO’s business name and business address is on the Register, replacing this with
requirements for the Register to contain the organisation’s name and business
name, physical address and postal address of the head office, physical address
of the RTO’s principal place of business, and physical address of the sites or
campuses from which the organisation delivers VET on a permanent basis[63]
- item
77 inserts requirements for ASQA to ensure that the Register includes
information about any application to renew course accreditation by an
ASQA-accredited RTO, and information about ASQA’s refusal to renew the
accreditation (including the date of the effect of the refusal to renew), if
either apply[64]
- item
78 inserts requirements in similar terms to those at item 77,
applied to VET accredited courses―that is, requirements for ASQA to
ensure that the Register includes information about any application to renew a
course’s accreditation, and information about ASQA’s refusal to renew
(including the date of the effect of the refusal to renew), if either apply.[65]
ASQA has three Commissioners: a Chief Commissioner, Deputy
Chief Commissioner, and Commissioner.[66]
Under section 162 of the NVETR Act, Commissioners are appointed by the Governor-General
by written instrument. Section 172 allows for the appointment of Acting Commissioners,
also appointed by the Governor-General. Items 2 to 4 of Schedule 2 amend
section 172 to give the Minister the power to appoint Acting Commissioners, in
place of the Governor-General. No changes are proposed to the appointment
arrangements for Commissioners.
The Bill proposes a range of changes to the NVETR Act
to give effect to the Government’s response to elements of the Braithwaite
Review and Joyce Review requiring legislation, as agreed by the COAG Skills
Council. Importantly, while for the most part these changes focus on tightening
requirements around provider registration and course accreditation, perhaps the
most important work on ASQA’s role is non-legislative.
As the Braithwaite Review
argued:
Specification and letting the measurable drive out what is
important is the weakness of overly technocratic regulation backed only by a
philosophy of legal formalism. The answer lies in ASQA developing its
regulatory culture to provide a better explanation of how its powers are used
to achieve the overarching principles that drive enhanced student outcomes, and
engaging in clearer regulatory conversations.[67]
The Skills Council’s agreement that ASQA will shift to
providing broad education and guidance to the VET sector, along with the review
focusing on ASQA’s governance, policies and culture, are therefore likely to be
integral to the possible effectiveness of the changes proposed in the Bill.[68]
[1]. V
Braithwaite, All
eyes on quality: review of the National Vocational Education and Training
Regulator Act 2011 report, report prepared for the Department of
Education and Training (DET), Canberra, 2018; S Joyce Strengthening
skills: expert review of Australia's vocational education and training system,
report prepared for the Department of the Prime Minister and Cabinet (PM&C),
Canberra, 2019.
[2]. Australian
Skills Quality Authority (ASQA), ‘Agency overview’, ASQA
website.
[3]. Council
of Australian Governments (COAG), Communiqué,
COAG Meeting, Brisbane, 7 December 2009, p. 1.
[4]. National Vocational
Education and Training Regulator Act 2011 (the NVETR Act),
Division 3; ASQA, ‘How
does an RTO in Western Australia or Victoria become registered with ASQA?’,
ASQA website. Providers only offering courses in Victoria or Western Australia,
and not intending to enrol overseas students, do not need to register with
ASQA. They can register with their relevant state regulator instead (the Victorian
Registration and Qualifications Authority and the Western
Australian Training
Accreditation Council).
[5]. Department
of Employment, Skills, Small and Family Business (DESSFB), ‘Organisation
/ RTO search’, training.gov.au website.
[6]. Standards for VET
Regulators 2015, Part 1. See also Standards for
Registered Training Organisations (RTOs) 2015.
[7]. ASQA,
‘ASQA’s
student-centred audit approach’, ASQA website, 31 May 2017.
[8]. Ibid.
[9]. Braithwaite,
All eyes on
quality, op. cit., p. 7.
[10]. More
detail about ASQA’s regulatory approach can be found in ASQA, Regulatory
risk framework, ASQA, April 2016; More detail about VET quality issues
can be found in H Ferguson, Higher
Education Support Amendment (VET FEE-HELP Student Protection) Bill 2018,
Bills digest, 39, 2018–19, Parliamentary Library, Canberra, 5 September 2018,
pp. 2–3.
[11]. Karen
Andrews (Assistant Minister for Vocational Education and Skills), Review
of national vocational education legislation, media release, 8 June
2017.
[12]. Braithwaite,
All eyes on
quality, op. cit.
[13]. Ibid.,
p. 48.
[14]. Ibid.,
p. 8.
[15]. Ibid.;
Australian Government, All
eyes on quality: Review of the National Vocational Education and Training
Regulator Act 2011 Australian Government response, June 2018. On the
issue of protecting and informing students, some action has already been taken
through the Education
Legislation Amendment (Tuition Protection and Other Measures) Act 2019,
which brought tuition assurance arrangements for domestic students using
student loans into line with those for overseas students.
[16]. Australian
Government, All
eyes on quality: Australian Government response, op. cit., p. 16.
[17]. S
Morrison (Prime Minister) and M Cash (Minister for Small and Family Business,
Skills and Vocational Education), Delivering
skilled workers for a stronger economy, media release, 28 November
2018.
[18]. Joyce
Strengthening
skills, op. cit.
[19]. Ibid.,
p. 39.
[20]. Ibid.,
pp. 38–43.
[21]. Australian
Government, Budget
measures: budget paper no. 2: 2019–20, pp. 69–70; DESSFB, ‘Delivering
skills for today and tomorrow’, DESSFB website, last modified 28 January
2020.
[22]. COAG
Skills Council, Communiqué,
COAG Skills Council Meeting, Melbourne, 20 September 2019, pp. 1–2.
[23]. M
Cash (Minister for Employment, Skills, Small and Family Business) and S Irons
(Assistant Minister for Vocational Education, Training and Apprenticeships), Ministers
announce changes to the Australian Skills Quality Authority, media
release, 27 September 2019.
[24]. Braithwaite,
All eyes on
quality, op. cit., p. 48.
[25]. M
Cash (Minister for Employment, Skills, Small and Family Business), National
vocational education regulator to focus on training excellence, media
release, 30 October 2019.
[26]. COAG,
Communiqué,
COAG Meeting, Brisbane, 7 December 2009, p. 1.
[27]. Senate
Standing Committee for Selection of Bills, Report,
10, 2019, The Senate, Canberra, 5 December 2019.
[28]. Senate
Standing Committee for the Scrutiny of Bills, Index
of Bills Considered by the Committee, 2019, The Senate, 5 December
2019.
[29]. Explanatory
Memorandum, National Vocational Education and Training Regulator Amendment
Bill 2019, p. 5.
[30]. The
Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory
Memorandum to the Bill.
[31]. Parliamentary
Joint Committee on Human Rights, Index
of Bills and instruments considered by the committee,
19 September 2019.
[32]. DET,
Australian Qualifications Framework (AQF)
website.
[33]. NVETR
Act, sections 17 and 22. VET Quality Framework is defined in
section 3 as the Standards for NVR Registered Training Organisations; the
Quality Standards; the Australian Qualifications Framework; the Fit and Proper
Person Requirements; the Financial Viability Risk Assessment Requirements; and
the Data Provision Requirements. See also ASQA, ‘VET
quality framework’, ASQA website.
[34]. NVETR
Act, section 24A.
[35]. NVETR
Act, section 25.
[36]. NVETR
Act, section 26.
[37]. NVETR
Act, section 27.
[38]. NVETR
Act, section 28.
[39]. NVETR
Act, section 29.
[40]. Explanatory
Memorandum, National Vocational Education and Training Regulator Amendment
Bill 2019, p. 22.
[41]. ASQA,
‘Application
assessment’, ASQA website.
[42]. Ibid.
[43]. Ibid.
[44]. NVETR
Act, sections 18 to 20.
[45]. The
NVETR Act, subsection 35(1).
[46]. Training
packages made up 84.5 per cent of enrolments in nationally recognised programs
in 2018. See National Centre for Vocational Education Research (NCVER), Total
VET students and courses 2018, Australian vocational education and
training statistics, NCVER, Adelaide, August 2019, p. 10.
[47]. DESSFB,
‘Training packages’,
DESSFB website, last modified 13 January 2020.
[48]. A
full list of training packages can be viewed on the National Register at
training.gov.au. See DESSFB, ‘Nationally
recognised training search’, training.gov.au.
[49]. This
process is complex and includes a number of government and non-government
bodies. More information is available from the Australian Industry and Skills Committee (AISC)
website. In summary, the AISC is responsible to the Skills Council for
approving training packages for implementation, with advice from Industry
Reference Committees (IRCs).
[50]. Australian
Skills Quality Authority (ASQA), ‘When
to consider course accreditation’, ASQA website. As with training packages,
a full list of accredited courses can be viewed on the National Register at
training.gov.au. See DESSFB, ‘Nationally
recognised training search’, training.gov.au website.
[51]. NVETR
Act, section 44.
[52]. NCVER,
Total
VET students and courses 2018, op. cit., p. 25.
[53]. Ibid.;
DET, ‘FAQs’, AQF website.
[54]. One
penalty unit is currently $210, as per section 4AA of the Crimes Act 1914.
[55]. NVETR
Act, subsection 160(2).
[56]. Tuition
assurance scheme operator is defined at item 1, which amends the
definitions at section 3 of the NVETR Act, as a person or body who
operates a scheme approved by ASQA for the purposes of requirements that are
set out in the Standards for NVR Registered Training Organisations, and relate
to the protection of fees for courses that an NVR registered training
organisation is unable to provide. In short, such services ensure VET students
can receive a refund or replacement course in the event their RTO does not
provide their course as planned.
[57]. Under
section 3, personal information has the same meaning as in
the Privacy
Act 1988.
[58]. VET
information is defined in section 3 as information that is held by
the National VET Regulator and relates to the performance of the Regulator’s
functions, including information and documents collected by the Regulator in
the course of the exercise of a power, or the performance of a function, under the
NVETR Act or the administration of the NVETR Act.
[59]. NCVER,
‘Student
outcomes’, NCVER website.
[60]. NVETR
Act. subsection 211(3).
[61]. NVETR
Act, subsection 211(4).
[62]. Proposed
subsections 212(3) to 212(6).
[63]. Proposed
paragraphs 216(1)(i), 216(1)(ia), and 216(1)(ib).
[64]. Proposed
paragraphs 216(1)(aa) and 216(1)(ab).
[65]. Proposed
paragraphs 216(1)(da) and 216(1)(db).
[66]. ASQA,
‘Commissioners’,
ASQA website.
[67]. Braithwaite,
All eyes on
quality, op. cit., p. 50.
[68]. Cash,
National
vocational education regulator to focus on training excellence, op.
cit.; COAG, Communiqué,
COAG Meeting, Brisbane, 7 December 2009, p. 1.
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