The Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, Senator the Honourable Chris Evans)

Schedule 1 - Consequential Amendments

Amendments to the Education Services for Overseas Students Act 2000

Item 1

Item 1 amends the definition of 'approved provider' in section 5 of the ESOS Act by replacing the reference to 'the designated authority with 'the relevant designated authority'. This reflects a number of other amendments made by this Bill to the ESOS Act, which mean that there may be more than one designated authority for a State.

Item 2

Item 2 repeals the definition of authorised employee in section 5 of the ESOS Act and replaces it with a new definition. Under the new definition, authorised employee means:

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a person who is an authorised officer within the meaning of the main Bill (clause 89 of the main Bill refers), if the Secretary delegates a power to the NVR which the NVR considers requires powers to be exercised under Part 7 of the ESOS Act; or

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a person who is authorised in writing by the Secretary to exercise powers under Part 7 of the ESOS Act and who is an employee of the Department at APS 5 level or higher.

These changes will ensure that officers of the NVR will be able to act as authorised officers under the ESOS Act where they are given this power under the main Bill.

Item 3

Item 3 repeals the definition of designated authority in section 5 of the ESOS Act and replaces it with a new definition of that term which allows for more than one designated authority for a State in relation to a provider.

Paragraph (a) has the effect that to the extent the provider is a registered NVR training organisation, the designated authority for the State in relation to the provider will be the National VET Regulator. This means that the NVR will automatically become the designated authority for all VET courses (as defined in the main Bill) which are to be registered under the ESOS Act where the RTO is registered with the NVR.

Paragraph (b) has the effect that to the extent that the provider is providing English Language Intensive Course(s) for Overseas Students, Foundation program(s) or both, the designated authority for a State in relation to the provider will be as determined by the Minister. Paragraph (c) has the effect that in any other case the designated authority for a State in relation to the provider will be person responsible for approving providers to provide course to overseas students under the law of the State.

One example of where there may be more than one designated authority for a State in relation to a provider is where the provider is a NVR registered training organisation providing VET courses in a State and the provider is also providing English Language Intensive Courses for Overseas Students in the State. The provider in this case will have the National VET Regulator as its designated authority to the extent it is NVR registered training organisation providing VET courses, and the entity determined by the Minister (which may or may not be the National VET Regulator) under paragraph (b) as the designated authority for the State for in relation to the provider to the extent the provider is providing the English Language Intensive Courses for Overseas Students in the State.

Item 4

Item 4 inserts a definition of ELICOS Standards, which will have the meaning given by section 176B. See further item 29 of the bill referred to below.

Item 5

Item 5 inserts a definition of Foundation Program Standards, which will have the meaning given by section 176C. See further item 29 of the bill referred to below.

Item 6

Item 6 inserts a definition of 'National VET Regulator' in the ESOS Act. That term is to have the same meaning as in the main Bill, i.e. the body established by clause 155 of the main Bill.

Item 7

Item 7 adds two subparagraphs at the end of paragraph 9(2)(c) of the ESOS Act. (Section 9 of the ESOS Act deals with the registration of approved providers.)

The two new subparagraphs relate to ELICOS Standards and Foundation Program Standards. With the inclusion of the new subparagraphs, section 9 will have the effect that approved providers will need to comply with the ELICOS Standards and Foundation Standards, if applicable, among other requirements, to be registered to provide a specified course to overseas students for a State.

Item 7 will take effect immediately after the commencement of section 3 of the main Bill, unless Schedule 1 to the ESOS Amendment Act commences before that time, in which case item 7 will not commence at all.

Item 8

Item 8 adds equivalent provisions to those added by item 7. Item 8 will not commence if item 7 takes effect, i.e. item 8 will not commence if section 3 of the main Bill commences before Schedule 1 to the ESOS Amendment Act commences.

Item 9

Item 9 adds to section 9A of the ESOS Act equivalent provisions to those added by item 7, except that the new provisions relate to re-registration of existing providers, to which section 9A relates.

Item 10

Item 10 inserts the words 'for a course' after 'is registered' in subsection 10(5) of the ESOS Act, to reflect that approved providers are registered to provide a course.

Item 11

Item 11 substitutes a new paragraph 14(1)(b) in the ESOS Act in which the reference to 'the designated authority that recommended the approved provider for registration' is replaced with a reference to 'the relevant designated authority'. This is to reflect that there may be more than one designated authority for a State.

Item 12

Item 12 substitutes a new subsection 14(2) of the ESOS Act which provides that the Secretary must give the information referred to in subsection 14(1) to the relevant designated authority. This is to reflect that there may be more than one designated authority for a State.

Item 13

Item 13 amends subsection 14(3) of the ESOS Act so that it refers to 'the relevant designated authority' and not 'the designated authority', to reflect that there may be more than one designated authority for a State.

Item 14

Item 14 repeals paragraph 14A(1)(a) of the ESOS Act and replaces it with new paragraphs 14A(1)(a) and (aa) to reflect that there may be more than one designated authority for a State.

Item 15

Item 15 repeals paragraph 14A(2)(a) of the ESOS Act and replaces it with new paragraphs 14A(2)(a) and (aa) to reflect that there may be more than one designated authority for a State.

Item 16

Item 16 amends subsection 14A(4) of the ESOS Act so that it refers to 'the relevant designated authority' and not 'the designated authority', to reflect that there may be more than one designated authority for a State.

Item 17

Item 17 substitutes a new paragraph 14B(1)(b) which refers to the relevant designated authority, instead of the designated authority, to reflect that there may be more than one designated authority for a State.

Note that section 14B is to be inserted in the ESOS Act by the ESOS Amendment Bill. Subsection 14B(1) will provide that the Secretary may impose a condition on a provider's registration the Secretary thinks necessary in view of a risk assessment by the Secretary or the designated authority. Item 17 commences immediately after the commencement of the ESOS Amendment Bill, if that bill is passed.

Item 18

Item 18 substitutes a new paragraph 27(1B)(b) in the ESOS Act which provides that one of the things which the Minister must have regard to when deciding whether to give the notice referred to in subsection 27(1A) is any advice of the relevant designated authority. This is to reflect that there may be more than one designated authority for a State.

Item 19

Item 19 substitutes a new subsection 43(1) in the ESOS Act. The new subsection extends the operation of section 43 so that it has operation where the Secretary has information from other than a designated authority suggesting that a registered provider for a State may have breached the national code, the ELICOS standards and/or the Foundation program standards. This amendment takes into account that providers will be required to meet ELICOS standards and Foundation program standards where relevant and that there may be more than one designated authority for a State in relation to a provider.

Item 20

Item 20 amends subsection 43(2) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider. Where there is more than one designated authority for a State in relation to a provider there may be one or more 'relevant designated authority' for the purposes of subsection 43(2).

For example, if there were two designated authorities for a State in relation to a registered provider and the Secretary had information suggesting a possible breach of the national code by a provider, both designated authorities may be a 'relevant designated authority' which the Secretary must notify for the purposes of subsection 43(2).

In another example, there could be two designated authorities for a State in relation to a provider where the provider was both approved to provide schools courses by a designated authority responsible for approving providers in accordance with the law of the State and also approved to provide ELICOS courses in the State by another designated authority determined by the Minister in accordance with paragraph (b) of the definition of 'designation authority' in the ESOS Act.

If the Secretary had information suggesting a possible breach of the ELICOS standards by the provider, to the extent that the ELICOS standards were only relevant to ELICOS courses delivered by the provider, the 'relevant designated authority' that the Secretary must notify for the purposes of subsection 43(2) may be the designated authority for the State determined by the Minister under paragraph (b) of the definition of 'designated authority'.

Item 21

Item 21 amends subsection 43(2) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider. The Secretary may ask one or more of the designated authorities for a State to investigate the matter or take other suitable action.

Item 22

Item 22 amends paragraph 43(3)(a) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider.

Item 23

Item 23 amends paragraph 43(3)(b) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider.

Item 24

Item 24 amends subsection 89(1) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider.

amendment has the effect that where there is one or more designated authorities for a State in relation to a provider, the registration of a provider for a course is suspended if the relevant designated authority suspends the approval of the course.

For example, if there were two designated authorities for a State in relation to a provider, one being the National VET Regulator by operation of paragraph (a) of the definition of designated authority and another being another entity determined by the Minister by operation of paragraph (b) of the definition of designated authority, and the National VET Regulator suspends the approval of a VET course for the provider, the 'relevant designated authority' for the purposes of subsection 89(1) would be the National VET Regulator.

Item 25

Item 25 substitutes a new subsection 89A(1) in the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider.

The new subsection 89A(1) applies where a provider is approved by one or more designated authorities (other than the National VET Regulator) to provide courses for a State, and one of the designated authorities tells the Secretary that, having regard to the matters referred to in subsection 9B(2), the designated authority is no longer satisfied that the provider is fit and proper to be registered. In this case the registration of the provider (other than a provider covered by subsection 9B(1)) is suspended for all courses for the State.

The new subsection 89A(1A) has the effect that where a provider is suspended under subsection 89A(1) and that same provider is also approved by the National VET Regulator to provide courses for a State, the registration of the provider is also suspended for all courses for all States for which the provider is approved by the National VET Regulator.

The new subsection 89A(1B) has the effect that where a provider is approved by the National VET Regulator to provide courses for a State (whether or not the provider is also approved by another designated authority to provider other courses for the State) and the National VET Regulator tells the Secretary that, having regard to the matters referred to in subsection 9B(2), the Regulator is no longer satisfied that the provider is fit and proper to be registered, the registration of the provider is suspended for all courses in all States.

Item 26

Item 26 amends subsection 89A(2) of the ESOS Act so that the reference to 'the designated authority' is replaced with a reference to 'the relevant designated authority'. This takes into account that there may be more than one designated authority for a State. The relevant designated authority is the designated authority, that in accordance with subsection 89A(1), subsection 89A(1A) or subsection 89A(1B), originally told the Secretary it was not satisfied the provider was a fit and proper person to be registered.

Item 27

Item 27 amends subsection 92B(1) of the ESOS Act so that the first occurring reference to 'the designated authority' is replaced with a reference to 'the relevant designated authority'. This makes clear that there may be more than one designated authority for a State.

Item 28

Item 28 repeals section 170 of the ESOS Act and replaces it with a new section 170, which will permit (in addition to the delegations permitted by the repealed section 170) the Minister or Secretary to delegate their powers to the NVR, and if such a delegation is made, will permit the NVR to sub-delegate the delegated powers to certain staff members.

Subsection 170(1) provides that the Minister may, by signed writing, delegate any or all of the Minister's powers under the ESOS Act to:

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the Secretary;

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the NVR; or

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an SES employee or acting employee in the Department.

Subsection 170(2) provides that the Secretary may, by signed writing, delegate any or all of the Secretary's powers under the ESOS Act to:

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the NVR; or

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an SES employee or acting SES employee in the Department.

Subsection 170(3) provides that if the Minister or the Secretary delegates a power under section 170 to the NVR, the NVR may, by writing, sub-delegate the function or power to a member of the staff of the NVR (i.e. persons engaged under the Public Service Act 1999 - clause 182(1) of the main Bill refers), who is:

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an SES employee or acting SES employee; or

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holding, or acting in, an Executive Level 1 or 2, or equivalent position.

Subsection 170(4) makes clear that sections 34AA, 34AB and 34AA of the Acts Interpretation Act 1901 apply in relation to the subdelegation in a corresponding way to the way in which they apply in relation to a delegation.

Item 29

Item 29 inserts new section 176B and 176C in the ESOS Act regarding ELICOS Standards and Foundation Program Standards respectively.

The new section 176B provides that:

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the Minister, may, by legislative instrument, make the ELICOS Standards; and

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despite subsection 14(2) of the Legislative Instruments Act 2003 , the ELICOS Standards may apply, adopt or incorporate, with or without modification, any matter contained in an instrument or other writing as in force or existing at a particular time or from time to time. This is to show a contrary intention for the purpose of subsection 14(2), which provides that unless the contrary intention appears, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. .

The new section 176C contains equivalent provisions regarding Foundation Program Standards.

In relation to both section 176B and 176C, the purpose of showing a contrary intention for the purpose of subsection 14(2) of the Legislative Instruments Act 2003 is to allow the legislative instrument to prescribe standards by reference to other documents and incorporating any changes to those documents from time to time, rather than only permitting the referenced document to be incorporated in the form that it exists when this Bill commences.

The proposed new sections 176B(2) and 176C(2) of the Education Services for Overseas Students Act 2000 do not oblige the Minister, when making legislative instruments under those provisions, to apply, adopt or incorporate matters contained in another instrument or writing. The Minister would only do so where appropriate. If the Minister did so, there would not appear to be any prospect of that creating uncertainty to the law or leading to those affected having inadequate access to its terms. This is because it is envisaged that both the NVR and the Tertiary Education Quality Standards Agency would publicise on their websites the current versions of any document incorporated by reference in the legislative instruments in question.

Item 30

Item 30 makes clear that a person who is an authorised employee as defined in section 5 of the ESOS Act immediately before commencement of item 30 continues to be an authorised employee after commencement of item 30 as if they were authorised by the Secretary in accordance with the definition of authorised employee as replaced by this bill. Item 30 commences immediately after commencement of clause 3 of the main Bill.

Item 31

Subitem 31(1) provides that if, before commencement (i.e. before commencement of item 31 - see subitem 31(5)), a thing was done by, or in relation to, a designated authority under the ESOS Act, then the thing is taken, after commencement of item 31, to have been done by or in relation to the relevant designated authority, according to the definition of that expression as inserted by this bill.

Subitem 31(2) provides that the Minister may make a written determination that subitem 31(1) does not apply in relation to a specified thing done by, or in relation to, a designated authority.

Subitem 31(3) makes clear that a thing, for the purpose of subitem 31(2), includes making an instrument.

Subitem 31(4) provides that a determination under subitem 31(2) is not a legislative instrument. This subitem is included to assist readers, as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 , as they are not legislative in character.

Item 32

Item 32 makes clear that a delegation in force under section 170 of the ESOS Act immediately before commencement of item 32 continues to have effect after commencement, as if it were a delegation under section 170 as replaced by this bill.

32 commences immediately after commencement of clause 3 of the main Bill.

Amendments to the Higher Education Support Act 2003

Item 33

Item 33 amends clause 1 of Schedule 1A of HESA, so that the word 'accredited' is omitted from the phrase 'accredited vocational education and training (VET) courses, to take account of terminology used in the main Bill.

Item 34

Item 34 repeals paragraph 6(c) of Schedule 1A of HESA and places it with an equivalent paragraph in which the reference to the National Training Information Services (NTIS) is replaced with a reference to the National Register. (See item 49 below regarding the definition of National Register.) This ensures consistency with the main Bill.

Item 34 will commence immediately after the commencement of section 3 of the main Act, unless Schedule 1 to the Higher Education Support Amendment Act 2011 commences before that time, in which case item 34 will not commence at all.

Item 35

Item 35 makes an equivalent amendment as made by item 34. Item 35 will not commence if item 34 commences, i.e. if section 3 of the main Act commences before Schedule 1 to the Higher Education Support Amendment Act 2011 commences, then item 35 will not commence.

Item 36

Item 36 repeals subclause 9(1) of Schedule 1A of HESA and replaces it with a new subclause 9(1) which provides that a body corporate that is a registered training organisation may apply, in writing, to the Minister for approval as a VET provider. (See item 52 below regarding the definition of registered training organisation.)

Item 37

Item 37 inserts section 9A, which provides that the Minister may seek information from the relevant VET Regulator for the purpose of approving a body corporate as a VET provider. The information which the Minister may seek relates to:

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the body corporate's application for approval as a VET provider; or

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the body corporate's compliance, or ability to comply, with the VET quality and accountability requirements.

Item 53 of the Bill inserts a definition of VET Regulator into Schedule 1 of HESA - see further below.

Item 38

Item 38 amends subclause 17(2) of Schedule 1A of HESA so that the reference to the requirements set out in the Australian Quality Training Framework is replaced with a reference to the requirements referred to in the VET Provider Guidelines (which are made under clause 99 of Schedule 1A of HESA).

It is intended that the VET Provider Guidelines will make reference to standards made under the main Bill, such as the Standards for NVR Registered Training Organisations which the Minister may make by legislative instrument under clause 185 of the main Bill.

Item 39

Item 39 inserts a new subclause 17(3) into Schedule 1A of HESA, which makes clear that the VET Provider Guidelines referred to in subclause 17(2) of Schedule 1A may refer to different requirements for different classes of VET providers.

Item 39 also inserts a new subclause 17(4) into Schedule 1A, which provides that despite subsection 14(2) of the Legislative Instruments Act 2003 , the VET Provider Guidelines may refer to a requirement by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. This is to show a contrary intention for the purpose of subsection 14(2), which provides that unless the contrary intention appears, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

The purpose of showing a contrary intention for the purpose of subsection 14(2) of the Legislative Instruments Act 2003 is to allow the legislative instrument to prescribe standards by reference to other documents and incorporating any changes to those documents from time to time, rather than only permitting the referenced document to be incorporated in the form that it exists when this Bill commences.

The proposed new subclause 17(4) of the Higher Education Support Act 2003 (HESA) does not oblige the Minister to apply, adopt or incorporate matters contained in another instrument or writing, and the Minister would only do so where appropriate. If the Minister did so, there would not appear to be any prospect of that creating uncertainty to the law or leading to those affected having inadequate access to its terms.

This is because it is envisaged that for the purpose of subclause 17(2) of Schedule 1A of HESA the requirements referred to in the VET Provider Guidelines made under clause 99 of Schedule 1A of HESA would be those in either:

(a)

For training organisations which are registered with the NVR - the legislative instruments regarding standards for NVR Registered Training Organisations, and regarding Fit and Proper Person Requirements, made under clauses 185 and 186 respectively of the main NVR Bill. The content of those instruments must be agreed by MCTEE. It is envisaged that these instruments would be well publicised by the NVR on its website. The requirements in the instrument under clause 185 will be very similar to those in the Australian Qualifications Training Framework (AQTF). One of the reasons to embody the AQTF requirements in the instrument under clause 185 is so that the requirements can be made clearer and more precise in form, leading to greater certainty about their application. (The requirements in the instrument under clause 186 are not currently included in the AQTF); and

(b)

For RTOs which will continue to be regulated by non-referring States - the Australian Qualifications Training Framework (AQTF), at least for the time being. It is possible that in future the non-referring States will enact mirroring legislation requiring their RTOs to comply with the requirements in the instruments under clauses 185 and 186 (as is envisaged by the current draft Intergovernmental Agreement regarding the NVR). The current AQTF is well publicised, being referred to on the home page of the training.com.au website among other places, and available in full on that website. The AQTF could only be amended with the agreement of the MCTEE. It is unlikely that the AQTF will be amended in the interim period between when the requirements in the instruments under clauses 185 and 186 come into effect, and when non-referring States enact mirroring legislation, should they enact mirror legislation. If the AQTF was amended, the only likely change would be to make the requirements in the AQTF the same as those in the instruments under clauses 185 and 186.

Item 40

Item 40 adds '(1)' at the start of clause 25 of Schedule 1A of HESA. This is to take account of the addition of a new subclause 25(2) by item 41

Item 41

Item 41 adds a new subclause 25(2) in Schedule 1A of HESA which provides that the notice of events which affect a provider's ability to comply with VET quality and accountability requirements which must be given, under clause 25(1) of Schedule 1A as re-numbered by this bill, to the Minister, must be given as soon as practicable after the VET provider becomes aware of such an event.

Item 42

Item 42 inserts a new clause 25A in Schedule 1A of HESA, which provides that if a VET provider gives the NVR a notice under clause 25 of the main Bill, the provider must give a copy of the notice to the Minister at the same time.

Item 43

Item 43 inserts a new subclause 26(2A) in Schedule 1A of HESA, which makes clear that if the Minister makes a determination under subclause 26(2) regarding the NVR, the determination is not a direction for the purpose of subclause 160(2) of the main Bill.

Item 44

Item 44 inserts a new clause 29A in Schedule 1A of HESA, which provides that if a body ceases to be approved as a VET provider, the Minister must ensure that the relevant VET Regulator is given written notice of that cessation.

Item 45

Item 45 repeals clause 32 of Schedule 1A and replaces it with a new clause 32, which provides that the Minister may revoke a body's approval as a *VET provider if:

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the body ceases to be listed as a registered training organisation on the National Register; and

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the Minister complies with the requirements of clause 34 of Schedule 1A.

Item 46

Item 46 amends paragraph 33(2)(d) of Schedule 1A so that the reference to 'accredited VET courses' is replaced with a reference to 'VET courses of study'.

Item 47

Item 47 inserts a new clause 34A in Schedule 1 of HESA which provides that the Minister may seek information from the relevant VET Regulator for the purpose of deciding whether it is appropriate to:

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revoke a body's approval as a VET provider; or

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determine that a body's approval as a VET providers is to be suspended.

Item 48

Item 48 repeals the definition of accredited VET course in Schedule 1 of HESA. This is because the bill (item 46) removes the reference to accredited VET courses in paragraph 33(2)(d).

Item 49

Item 49 inserts a definition of National Register into Schedule 1 of HESA. The definition provides that the National Register has the same meaning as in the main Bill, i.e. the register maintained by the Department, or another person prescribed by the regulations under the main Bill, and referred to in clause 216 of the main Bill.

Item 50

Item 50 inserts a definition of National VET Regulator in Schedule 1 of HESA, which provides that this term has the same meaning as in the main Bill, i.e. the body established by clause 155 of the main Bill.

Item 51

Item 51 repeals the definition of NTIS (defined as the National Training Information Service maintained by the Commonwealth in conjunction with the States and Territories) in Schedule 1 of HESA. This is to reflect terminology used by the main Bill - see item 49 above regarding the National Register.

Item 52

Item 52 inserts a definition of 'registered training organisation'. This term is defined as having the same meaning as in the main Bill, i.e. a training organisation listed on the National Register as a registered training organisation.

Item 53

Item 53 inserts a definition of 'VET Regulator'. This term is defined as having the same meaning as in the main Bill, i.e.:

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the NVR; and

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a body of a non-referring State that is responsible for the kinds of matters dealt with by this Act.

Item 54

Item 54 makes clear that:

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clause 9A of Schedule 1A to HESA (as inserted by this bill) applies in relation to applications for approval as a VET provider made before, on or after item 54 commences; and

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subclause 17(2) of Schedule 1 to HESA (as inserted by this bill) applies in relation to applications for approval made before, on or after this item commences.

Amendments to the Indigenous Education (Targeted Assistance) Act 2000

Item 55

Item 55 repeals the definition of 'vocational education and training institution' in section 4 of the IETA Act and replaces it with a new definition which provides that this term means an institution in a State or Territory that:

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is an RTO (within the meaning of the main Bill); and

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provides VET courses (within the meaning of the main Bill); and

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is not conducted for profit

This is so that the terminology used in the IETA Act better reflects the terminology used in the main Act. The amended definition is not intended to alter the type of organisations which are eligible for funding under the IETA Act.