Training and Tertiary Education Legislation Amendment Act 2007 (ACT)

Training and Tertiary Education Legislation Amendment Act 2007

A2007-12

Contents

Page

1. Name of Act  2

2. Commencement  2

3. Legislation amended  2

4. Section 1  2

5. Functions of council

   
   

   Section 8 (1) (d)  3

6. Section 8 (1) (e) (i) and (ii)  3

7. Council to have regard to authority’s views

   
   

   Section 11  3

8. Membership of council

   
   

   Section 12 (1) (c)  3

9. Section 12 (1) (g)  3

10. Section 12 (2)  3

11. Council procedures

    
    

    New section 20 (5A)  4

12. New chapter 3A  4

13. Establishment of panel

    
    

    Section 85 (1)  9

14. Declaration of ACT university

    
    

    Section 88 (4)  9

15. New section 89A  10

16. Panel to consider proposal

    
    

    Section 90 (1)  10

17. Section 90 (3) (c)  11

18. New section 94A  11

19. Decision about approval as foreign university

    
    

    Section 95 (4) and (5)  12

20. New section 99A  12

21. Identity cards

    
    

    Section 101 (1)  14

22. Section 101 (2)  14

23. New section 101 (4)  14

24. Section 103 heading  15

25. New section 103A  15

26. Modification of Administrative Appeals Tribunal Act, s 27

    
    

    Section 107 (2)  16

27. Sections 108 and 109  16

28. Section 112  16

29. New chapter 10  17

30. Reviewable decisions

    
    

    Schedule 1, new items 12A to 12I  18

31. Schedule 1, new items 28 and 29  19

32. Dictionary, definition of ANTA  20

33. Dictionary, new definition of approved training contract  20

34. Dictionary, definition of authority  20

35. Dictionary, new definition of employer  20

36. Dictionary, definition of MINCO  20

37. Dictionary, new definition of nationally agreed training contract            20

38. Dictionary, definition of national protocols  20

39. Dictionary, definition of national protocols, notes 1 and 2  21

40. Dictionary, new definition of trainee  21

41. Dictionary, new definition of work-related training  21

42. Further amendments, dictionary definitions  21

43. Legislation repealed  22

Schedule 1Consequential amendments  23

Part 1.1Agents Regulation 2003  23

Part 1.2Annual Leave Act 1973  24

Part 1.3Board of Senior Secondary Studies Act 1997                24

Part 1.4Building and Construction Industry Training Levy Act 1999 25

Part 1.5Canberra Institute of Technology Act 1987                   25

Part 1.6Construction Occupations (Licensing) Regulation 2004    25

Part 1.7Crimes (Child Sex Offenders) Act 2005  26

Part 1.8Domestic Violence and Protection Orders Act 2001        27

Part 1.9Long Service Leave Act 1976  27

Part 1.10Payroll Tax Act 1987  27

Part 1.11Security Industry Act 2003  28

Part 1.12Security Industry Regulation 2003  28

Part 1.13Tertiary Accreditation and Registration Regulation 2004   29

Training and Tertiary Education Legislation Amendment Act 2007

A2007-12

An Act to amend the Tertiary Accreditation and Registration Act 2003, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1. Name of Act

   This Act is the Training and Tertiary Education Legislation Amendment Act 2007.

2. Commencement

   This Act commences on a day fixed by the Minister by written notice.

   Note 1The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

   Note 2A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

   Note 3If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

3. Legislation amended

   This Act amends the Tertiary Accreditation and Registration Act 2003.

   Note 1This Act also amends other legislation (see sch 1).

   Note 2 This Act also repeals the Vocational Education and Training Act 2003 (see s 43).

4. Section 1

   substitute

5. Name of Act

   This Act is the Training and Tertiary Education Act 2003.

6. Functions of council
   Section 8 (1) (d)

   substitute

   (d)to facilitate recognition and quality assurance in the provision of vocational education and training;

7. Section 8 (1) (e) (i) and (ii)

   substitute

   (i)accreditation of vocational education and training courses and higher education courses; and

   (ii)registration of vocational education and training organisations and higher education providers; and

8. Council to have regard to authority’s views
   Section 11

   omit

9. Membership of council
   Section 12 (1) (c)

   omit

   2

   substitute

   3

10. Section 12 (1) (g)

    omit

11. Section 12 (2)

    omit

12. Council procedures
    New section 20 (5A)

    insert

    (5A)A resolution is a valid resolution of the council, even if it is not passed at a meeting of the council, if at least 2/3 of the members agree to the proposed resolution in writing or by electronic communication.

    Example of electronic communication

    email

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

13. New chapter 3A

    insert

Chapter 3AWork-related training and training contracts

55ADetermination of work-related training

(1)The chief executive may determine that a sequence of vocational education and training is work-related training for this Act.

Examples

1     apprenticeship

2     traineeship

Note 1Power given under an Act to make a statutory instrument (including a determination) includes power to amend or repeal the instrument (see Legislation Act, s 46 (1)).

Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2)A determination is a notifiable instrument.

Note 1A notifiable instrument must be notified under the Legislation Act.

Note 2An amendment or repeal of a determination is also a notifiable instrument (see Legislation Act, s 46 (2)).

55BApproval of training contract

(1)The chief executive may approve a training contract between an employer and another person in relation to work-related training.

(2)The chief executive must not approve a training contract unless satisfied that—

(a)the contract complies with the form and content of the nationally agreed training contract; and

(b)the facilities, equipment and methods proposed to be used for the training are suitable; and

(c)the qualifications, knowledge and skills of the person proposed to deliver the training are appropriate; and

(d)the person proposed to deliver the training conducts himself or herself in a way appropriate for a person responsible for the delivery of training; and

(e)the employer is likely to comply with any relevant industrial arrangement.

(3)The chief executive may approve a training contract subject to conditions.

(4)In this section:

industrial arrangement means—

(a)an award or order that has been reduced to writing under the Workplace Relations Act 1996 (Cwlth); or

(b)a workplace agreement within the meaning of that Act; or

(c)a contract of employment.

nationally agreed training contract means the training contract agreed between the Commonwealth, States and Territories.

55CApplication for approval

An application for approval must be made in a way required by the chief executive.

NoteIf a form is approved under s 112 for this provision, the form must be used.

55DTraining contracts for qualification or statement of attainment

(1)An employer and another person may enter into an approved training contract for training that results in a qualification or statement of attainment being issued to the other person.

(2)However, a contract cannot be entered into if the chief executive or the council decides that training contracts cannot be entered into for the particular qualification or statement of attainment.

55ETraining must be under approved training contract

(1)An employer commits an offence if—

(a)the employer provides a person with work-related training for a qualification or statement of attainment; and

(b)the employer employs the person on trainee or apprentice wages and conditions; and

(c)there is no approved training contract between the employer and the person.

Maximum penalty:  50 penalty units.

(2)An offence against this section is a strict liability offence.

55FCode of practice

(1)In providing work-related training under an approved training contract, all parties must comply with any code of practice approved by the Minister for this section.

(2)An approved code of practice may apply, adopt or incorporate an instrument, as in force from time to time.

Note 1The text of an applied, adopted or incorporated instrument, whether applied as in force from time to time or at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).

Note 2A notifiable instrument must be notified under the Legislation Act.

(3)An approval is a disallowable instrument.

NoteA disallowable instrument must be notified and presented to the Legislative Assembly, under the Legislation Act.

55GParty may ask for amendment

(1)A party to an approved training contract may ask the chief executive to approve an amendment of the contract.

NoteIf a form is approved under s 112 for this provision, the form must be used.

(2)The chief executive must—

(a)approve the amendment requested; or

(b)refuse to approve it.

(3)The chief executive must not approve an amendment unless satisfied that the contract as amended complies with the form and content of the nationally agreed training contract.

(4)Subject to subsection (3), the chief executive must approve an amendment requested by all parties unless satisfied that the amendment would adversely affect the provision of the training.

55HChief executive may suspend, cancel or amend contract

The chief executive may suspend or cancel approval of a training contract or amend an approved training contract—

(a)if the employer is unable to provide training under the contract because of a change in the employer’s circumstances; or

(b)if the chief executive is satisfied that it is in the interests of the trainee to suspend or cancel the approval or amend the contract; or

(c)    in any other circumstance prescribed by regulation.

55IDispute between employer and trainee

(1)This section applies if a dispute about training under an approved training contract arises between parties to the contract.

(2)A party may ask the chief executive to resolve the dispute.

(3)Within 28 days after the day of receiving the request, the chief executive must attempt to resolve the dispute.

(4)In attempting to resolve the dispute, the chief executive must take into account any views of the council on an issue in dispute.

(5)If the dispute is not resolved after the end of that 28-day period, the chief executive may—

(a)make a finding of fact about any matter relating to the training contract; or

(b)amend the contract; or

(c)give directions to a party to the contract incidental to an action under paragraph (a) or (b).

1. Establishment of panel
   Section 85 (1)

   substitute

   (1)The Minister must establish a university advisory panel if—

   (a)the Minister receives a proposal under section 87 (Proposal for ACT university) or an application under section 94 (Application for approval as foreign university); and

   (b)the council recommends that a panel be established to consider the proposal or application.

2. Declaration of ACT university
   Section 88 (4)

   substitute

   (4)The Minister must not make a declaration about a proposed university unless—

   (a)the council has advised the Minister under section 89A (2) about the proposal; and

   (b)the university advisory panel has reported to the Minister under section 91 about the proposal; and

   (c)taking into consideration the panel’s report, the Minister is satisfied the proposed university has the characteristics, and fulfils the role, of a university.

3. New section 89A

   insert

89ACouncil to consider and advise on proposal

(1)After receiving a proposal from a proposed university for the establishment or recognition of a university in the ACT, the Minister must refer the proposal to the council for advice about whether the proposed university meets—

(a)the criteria for a university stated in the national protocols; and

(b)any relevant guidelines under section 86 (Panel guidelines).

(2)If the council considers the proposal meets the criteria and guidelines mentioned in subsection (1), the council must—

(a)advise the Minister accordingly; and

(b)make recommendations to the Minister about the composition of the advisory panel to be established under section 85 for the proposal.

(3)If the council considers the proposal does not meet the criteria and guidelines mentioned in subsection (1)—

(a)the council must advise the Minister accordingly; and

(b)the Minister may refuse, under section 88 (1), to declare that the proposed university is established or recognised.

1. Panel to consider proposal
   Section 90 (1)

   substitute

   (1)If the Minister receives advice from the council under section 89A (2), the Minister must refer the proposal to a university advisory panel.

2. Section 90 (3) (c)

   omit

3. New section 94A

   insert

94ACouncil to consider and advise on application 

(1)After receiving an application from a foreign university under this part, the Minister must refer the application to the council for advice about whether the university meets—

(a)the criteria for a university stated in the national protocols; and

(b)any relevant guidelines under section 86 (Panel guidelines).

(2)If the council considers the application meets the criteria and guidelines mentioned in subsection (1), the council must—

(a)advise the Minister accordingly; and

(b)make recommendations to the Minister about the composition of the advisory panel to be established under section 85 for the application.

(3)If the council considers the application does not meet the criteria and guidelines mentioned in subsection (1)—

(a)the council must advise the Minister accordingly; and

(b)the Minister may refuse, under section 95 (1), to approve the university as a foreign university.

1. Decision about approval as foreign university
   Section 95 (4) and (5)

   substitute

   (4)The Minister must not give approval unless—

   (a)the council has advised the Minister under section 94A (2) about the application; and

   (b)the Minister has consulted with a university advisory panel about the application; and

   (c)the Minister is satisfied about—

   (i)the legal status of the university and its standing in the country where it is established (including recognition by the relevant accreditation body); and

   (ii)the adequacy of the proposed arrangements for the university’s operation in the ACT, having regard to the national protocols.

2. New section 99A

   insert

99AVisits by chief executive—training contract premises

(1)The chief executive may give an employer written notice that a person authorised by the chief executive proposes to visit premises where the employer is providing, or proposes to provide, training under a training contract.

(2)The notice under subsection (1) must—

(a)state the address of the premises proposed to be visited; and

(b)state the day and time of the proposed visit; and

(c)state the purpose of the visit; and

(d)be given to the employer at least 7 days before the day of the proposed visit.

(3)The day and time of the proposed visit must be a day and time when the employer normally conducts business on the premises.

(4)The authorised person, may on the day and at the time stated in the notice—

(a)enter the premises stated in the notice; or

(b)observe any work-related training being provided on the premises; or

(c)ask the employer to give information about work-related training provided, or proposed to be provided, on the premises; or

(d)ask the employer to produce any document in the possession of the employer containing information about work-related training provided, or proposed to be provided, on the premises.

(5)An authorised person may, in exceptional circumstances, do a thing mentioned in subsection (4) (a) to (d) without notice.

Example of exceptional circumstances

danger of injury to anyone’s health or safety

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

1. Identity cards
   Section 101 (1)

   substitute

   (1)The relevant authority may give a person who may conduct visits under this part an identity card that states the person’s name and position, and shows—

   (a)the date of issue of the card; and

   (b)the date of expiry of the card; and

   (c)anything else prescribed by regulation.

2. Section 101 (2)

   omit

   the council

   substitute

   the relevant authority

3. New section 101 (4)

   insert

   (4)In this section:

   relevant authority means—

   (a)for a visit under section 99 or section 100—the council; and

   (b)for a visit under section 99A—the chief executive.

4. Section 103 heading

   substitute

5. Obstructing visits—council

6. New section 103A

   in part 6.1, insert

103AObstructing visits—chief executive

(1)This section applies if the chief executive is satisfied that an employer—

(a)without reasonable excuse, obstructs or hinders a person entering premises or observing training under section 99A (4) (a) or (b) (Visits by chief executive—training contract premises); or

(b)refuses to give information, or gives information that the employer knows is false or misleading  in response to a request under section 99A (4) (c); or

(c)refuses to produce a document, or produces a document that the employer knows contains false or misleading information, in response to a request under section 99A (4) (d).

(2)The chief executive may suspend or cancel the approval of, or amend, any approved training contract to which the employer is a party.

1. Modification of Administrative Appeals Tribunal Act, s 27
   Section 107 (2)

   omit

   section 111

   substitute

   section 106

2. Sections 108 and 109

   substitute

3. CRICOS approval

   (1)For the purposes of the Education Services for Overseas Students Act 2000 (Cwlth), section 5, definition of designated authority the council chairperson is the person responsible for approving providers to provide courses to overseas students in the Territory.

   (2)In this section:

   CRICOS means the Commonwealth Register of Institutions and Courses for Overseas Students under the Education Services for Overseas Students Act 2000 (Cwlth), section 10.

4. Section 112

   substitute

5. Approved forms

   (1)The council may approve forms for this Act (other than chapter 3A).

   (2)The chief executive may approve forms for chapter 3A.

   (3)If the council or chief executive approves a form for a particular purpose, the approved form must be used for that purpose.

   NoteFor other provisions about forms, see the Legislation Act, s 255.

   (4)An approved form is a notifiable instrument.

   NoteA notifiable instrument must be notified under the Legislation Act.

6. New chapter 10

   insert

Chapter 10Transitional

1. Definitions—ch 10

   In this chapter:

   commencement day means the day this Act commences.

   repealed Act means the Vocational and Education Training Act 2003.

2. Training contracts

   (1)A contract that was an approved training contract under the repealed Act immediately before the commencement day is taken to be approved as a training contract under section 55B (Approval of training contract).

   (2)If a suspension of approval of the agreement or an amendment of the agreement is in force immediately before the commencement day, the suspension or amendment has effect as if the approval had been suspended, or the agreement amended, under chapter 3A (Work‑related training and training contracts).

1. Transitional regulations

   (1)A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of this Act.

   (2)A regulation may modify this part to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

   (3)A regulation under subsection (2) has effect despite anything elsewhere in this Act.

2. Expiry—ch 10

   (1)This chapter is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

   (2)This chapter expires 1 year after the commencement day.

3. Reviewable decisions
   Schedule 1, new items 12A to 12I

   insert

12A	55B (1) (Approval of training contract)	refusing to approve a training contract	applicant for approval
12B	55B (3)	approving a training contract subject to conditions	applicant for approval
12C	55G (2) (a) (Party may ask for amendment)	approving an amendment of an approved training contract	each party to the contract
12D	55G (2) (b)	refusing to approve an amendment of approved training contract	each party to the contract
12E	55H (Chief executive may suspend, cancel or amend contract)	suspending or cancelling approval of a training contract	each party to the contract
12F	55H	amending an approved training contract	each party to the contract
12G	55I (5) (a)	making a finding of fact about a matter in relation to a training contract	each party to the contract
12H	55I (5) (b)	amending an approved training contract	each party to the contract
12I	55I (5) (c)	giving directions to a party to an approved training contract	each party to the contract

1. Schedule 1, new items 28 and 29

   insert

28	103A (2) (Obstructing visits—chief executive)	suspending or cancelling approval of an approved training contract	each party to the contract
29	103A (2)	amending an approved training contract	each party to the contract

1. Dictionary, definition of ANTA

   omit

2. Dictionary, new definition of approved training contract

   insert

   approved training contract means a training contract approved by the chief executive under section 55B (Approval of training contract).

3. Dictionary, definition of authority

   omit

4. Dictionary, new definition of employer

   insert

   employer, for a trainee, means the person who is obliged under a training contract to employ the trainee.

5. Dictionary, definition of MINCO

   omit

6. Dictionary, new definition of nationally agreed training contract

   insert

   nationally agreed training contract—see section 55B (4).

7. Dictionary, definition of national protocols

   omit

   on 31 March 2000

8. Dictionary, definition of national protocols, notes 1 and 2

   substitute

   NoteThe national protocols were originally approved on 31 March 2000 and a revised edition was approved on 7 July 2006.  The revised edition is to come into effect in December 2007.

9. Dictionary, new definition of trainee

   insert

   trainee means a person who undertakes training under a training contract, and includes an apprentice.

10. Dictionary, new definition of work-related training

    insert

    work-related training means a sequence of vocational education and training that is determined by the chief executive under section 55A to be work-related training.

11. Further amendments, dictionary definitions

    omit notes 1 and 2 from the following definitions:

    ·     AQF

    ·     AQTF

    ·     national protocols

    ·     national training framework

    ·     standards for accreditation of courses

    ·     standards for registered training organisations

    ·     standards for State and Territory registering and course accrediting bodies

12. Legislation repealed

    (1)The Vocational Education and Training Act 2003 A2003-37 is repealed.

    (2)All legislative instruments under the Vocational Education and Training Act 2003 are repealed.

Schedule 1Consequential amendments

(see s 3)

Part 1.1Agents Regulation 2003

[1.1]Section 3, note 1

omit

Tertiary Accreditation and Registration Act 2003

substitute

Training and Tertiary Education Act 2003

[1.2]Section 6 (4)

omit

Tertiary Accreditation and Registration Act 2003

substitute

Training and Tertiary Education Act 2003

[1.3]Dictionary, definition of registered training organisation

omit

Tertiary Accreditation and Registration Act 2003

substitute

Training and Tertiary Education Act 2003

[1.4]Dictionary, definition of statement of attainment

omit

Tertiary Accreditation and Registration Act 2003

substitute

Training and Tertiary Education Act 2003

Part 1.2Annual Leave Act 1973

[1.5]Dictionary, definition of approved training contract

omit

Vocational Education and Training Act 2003

substitute

Training and Tertiary Education Act 2003

Part 1.3Board of Senior Secondary Studies Act 1997

[1.6]Section 8 (1) (c)

substitute

(c)1 person appointed after consultation with vocational education and training organisations;

Part 1.4Building and Construction Industry Training Levy Act 1999

[1.7]Section 28 (4), definition of registered training organisation

omit

Tertiary Accreditation and Registration Act 2003

substitute

Training and Tertiary Education Act 2003

Part 1.5Canberra Institute of Technology Act 1987

[1.8]Section 30 (2) (d)

substitute

(d)1 must be a person with skills in and knowledge of vocational education and training; and

Part 1.6Construction Occupations (Licensing) Regulation 2004

[1.9]Section 14 (6), definition of registered training organisation

omit

Tertiary Accreditation and Registration Act 2003

substitute

Training and Tertiary Education Act 2003

[1.10]Section 35 (3), definition of accredited course

omit

Tertiary Accreditation and Registration Act 2003

substitute

Training and Tertiary Education Act 2003

Part 1.7Crimes (Child Sex Offenders) Act 2005

[1.11]Section 124 (1) (s)

omit

Vocational Education and Training Act 2003

substitute

Training and Tertiary Education Act 2003

[1.12]Section 124 (2), definition of education institutions for children, paragraph (b)

omit

Tertiary Accreditation and Registration Act 2003

substitute

Training and Tertiary Education Act 2003

Part 1.8Domestic Violence and Protection Orders Act 2001

[1.13]Dictionary, definition of employer, par (d)

omit

Vocational Education and Training Act 1995

substitute

Training and Tertiary Education Act 2003

Part 1.9Long Service Leave Act 1976

[1.14]Dictionary, definition of approved training contract

omit

Vocational Education and Training Act 2003

substitute

Training and Tertiary Education Act 2003

Part 1.10Payroll Tax Act 1987

[1.15]Section 9A (8), definition of approved training contract

omit

Vocational Education and Training Act 2003

substitute

Training and Tertiary Education Act 2003

[1.16]Section 9AB (4), definition of approved training contract

omit

Vocational Education and Training Act 2003

substitute

Training and Tertiary Education Act 2003

Part 1.11Security Industry Act 2003

[1.17]Section 26 (5), definition of trainee

omit

Vocational Education and Training Act 1995

substitute

Training and Tertiary Education Act 2003

Part 1.12Security Industry Regulation 2003

[1.18]Section 15

omit

Tertiary Accreditation and Registration Act 2003

substitute

Training and Tertiary Education Act 2003

Part 1.13Tertiary Accreditation and Registration Regulation 2004

[1.19]Section 1

substitute

1. Name of regulation

   This regulation is the Training and Tertiary Education Regulation 2003.

Endnotes

1. Presentation speech

   Presentation speech made in the Legislative Assembly on 8 March 2007.

2. Notification

   Notified under the Legislation Act on 13 June 2007.

3. Republications of amended laws

   For the latest republication of amended laws, see certify that the above is a true copy of the Training and Tertiary Education Legislation Amendment Bill 2007, which was passed by the Legislative Assembly on 29 May 2007.

   Clerk of the Legislative Assembly

   © Australian Capital Territory 2007