Vocational Education and Training (Commonwealth Powers) Act 2010 (NSW)

An Act to refer certain matters relating to the regulation of vocational education and training to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth; and for other purposes.

1Name of Act

This Act is the Vocational Education and Training (Commonwealth Powers) Act 2010.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

3Definitions

In this Act:

amendment reference means the reference under section 6 (2).

continuing VET matter has the meaning given in section 5.

express amendment of the national VET legislation means the direct amendment of the text of the national VET legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the national VET legislation.

initial reference means the reference under section 6 (1).

initial VET matters has the meaning given in section 4.

national VET instrument means any instrument (whether or not of a legislative character) that is made or issued under the national VET legislation.

national VET legislation means Commonwealth Acts enacted in the terms, or substantially in the terms, of the tabled text and as in force from time to time.

tabled text means the text of the following proposed Bills for Commonwealth Acts:

• (a)

  National Vocational Education and Training Regulator Bill 2010,

• (b)

  National Vocational Education and Training Regulator (Transitional Provisions) Bill 2010,

as tabled in the Legislative Assembly of New South Wales on 24 November 2010 by or on behalf of the Minister introducing the Bill for the Vocational Education and Training (Commonwealth Powers) Act 2010 of that State in the Legislative Assembly.

4Initial VET matters

The initial VET matters are the matters to which the provisions of the tabled text relate to the extent that those matters are included in the legislative powers of the Parliament of the State.

5Continuing VET matters(1)

Each of the following matters is a continuing VET matter to the extent that it is included in the legislative powers of the Parliament of the State:

• (a)

  the registration and regulation of vocational education and training organisations,

• (b)

  the accreditation or other recognition of vocational education and training courses or programs,

• (c)

  the issue and cancellation of vocational education and training qualifications or statements of attainment,

• (d)

  the standards to be complied with by a vocational education and training regulator,

• (e)

  the collection, publication, provision and sharing of information about vocational education and training,

• (f)

  investigative powers, sanctions and enforcement in relation to any of the above.

(2)

However, a continuing VET matter does not include the matter of making a law that excludes or limits the operation of a State law to the extent that the State law makes provision with respect to:

• (a)

  primary or secondary education (including the education of children subject to compulsory school education), or

• (b)

  tertiary education that is recognised as higher education and not vocational education and training, or

• (c)

  the rights and obligations of persons providing or undertaking apprenticeships or traineeships, or

• (d)

  the qualifications or other requirements to undertake or carry out any business, occupation or other work (other than that of a vocational education and training organisation), or

• (e)

  the funding by the State of vocational education and training, or

• (f)

  the establishment or management of any agency of the State that provides vocational education and training.

(3)

In this section:

State law means any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time.

6References(1)

The initial VET matters are referred to the Parliament of the Commonwealth, but only to the extent of the making of laws with respect to those matters by enacting Acts in the terms, or substantially in the terms, of the tabled text.

(2)

Each continuing VET matter is referred to the Parliament of the Commonwealth, but only to the extent of the making of laws with respect to the matter by making express amendments of the national VET legislation.

(3)

The operation of each of subsections (1) and (2) is not affected by the other subsection.

(4)

The reference of a matter under subsection (1) or (2) has effect only if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth).

(5)

Despite any provision of this Act other than section 9 (4), a reference under subsection (1) or (2) has effect for a period:

• (a)

  beginning when the subsection under which the reference is made commences, and

• (b)

  ending at the end of the day fixed under section 8 as the day on which the reference is to terminate,

but not longer.

7Amendment of Commonwealth law

It is the intention of the Parliament of the State that:

• (a)

  the national VET legislation may be expressly amended, or have its operation otherwise affected, at any time by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from a reference of any matters for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth, and

• (b)

  the national VET legislation may have its operation affected, otherwise than by express amendment, at any time by provisions of national VET instruments.

8Termination of references(1)

The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which:

• (a)

  the initial reference and the amendment reference are to terminate, or

• (b)

  the amendment reference is to terminate, or

• (c)

  the initial reference is to terminate (if the amendment reference has been previously terminated).

(2)

A day fixed under subsection (1) must be no earlier than the first day after the end of the period of 6 months beginning with the day on which the proclamation is published.

(3)

The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1).

(4)

A revoking proclamation has effect only if published before the day fixed under subsection (1).

(5)

If a revoking proclamation has effect the revoked proclamation is taken, for the purposes of section 6, never to have been published but the revocation does not prevent publication of a further proclamation under subsection (1).

9Effect of termination of amendment reference before termination of initial reference(1)

In this section:

existing legislation means the national VET legislation as:

• (a)

  amended by laws made under the amendment reference that have come into operation before the termination, or

• (b)

  amended or affected by provisions referred to in section 7 (a) or (b) that have come into operation before the termination,

and as in operation immediately before the termination.

termination means the termination of the amendment reference.

(2)

A reference in this section to provisions referred to in section 7 (b) includes a reference to national VET instruments made to carry out or give effect to the national VET legislation as amended by laws made under the amendment reference.

(3)

It is the intention of the Parliament of the State that, if the amendment reference terminates before the initial reference terminates, the termination of the amendment reference does not affect:

• (a)

  laws made under the amendment reference before the termination, or

• (b)

  the continued operation in the State of the existing legislation or of the existing legislation as:

  • (i)

    amended after the termination by laws referred to in paragraph (a) that come into operation after the termination, or

  • (ii)

    amended or affected after the termination by provisions referred to in section 7 (a) or (b).

(4)

Accordingly, the amendment reference continues to have effect for the purposes of subsection (3) unless the initial reference is terminated.

(5)

Subsection (3) or (4) does not apply to or in relation to an amendment of the national VET legislation that is excluded from the operation of this section by the proclamation that terminates the amendment reference.

10Evidence of tabled text(1)

A certificate of the Clerk of the Legislative Assembly of New South Wales certifying that a document is an accurate copy of the tabled text, or is an accurate copy of a particular part or of particular provisions of the tabled text, is admissible in evidence in any proceedings and is evidence:

• (a)

  of the matter certified, and

• (b)

  that the text of the proposed Commonwealth Bills was tabled in the Legislative Assembly of New South Wales as referred to in the definition of tabled text in section 3.

(2)

Subsection (1) does not affect any other way in which the tabling or content of the tabled text, or the accuracy of a copy of the tabled text or of a part or provisions of the tabled text, may be established.

Schedules 1, 2

(Repealed)

Schedule 3Savings, transitional and other provisionsPart 1General1Definitions

In this Schedule:

national VET legislation means:

• (a)

  the National Vocational Education and Training Regulator Act 2011 of the Commonwealth, and

• (b)

  the National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 of the Commonwealth.

National VET Regulator means the National Vocational Education and Training Regulator established under the National Vocational Education and Training Regulator Act 2011 of the Commonwealth.

NSW Vocational Education and Training Accreditation Board means the Vocational Education and Training Accreditation Board established under the Vocational Education and Training Act 2005 of New South Wales immediately before the repeal of that Act by this Act.

2Regulations(1)

The Governor may make regulations containing provisions of a savings or transitional nature consequent on:

• (a)

  the enactment of this Act, or

• (b)

  the transition from the application of the provisions of the Vocational Education and Training Act 2005 of New South Wales to the application of the provisions of the National VET legislation.

(2)

If such a regulation so provides, it has effect despite any other provision of this Schedule.

(3)

A provision of a regulation made under this clause may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(4)

To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:

• (a)

  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

• (b)

  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2Provisions consequent on enactment of this Act3Dissolution of NSW VET Accreditation Board(1)

The NSW Vocational Education and Training Accreditation Board is dissolved.

(2)

A person who held office as a member of the Board immediately before its dissolution ceases to hold office as a member of the Board and is not entitled to any remuneration or compensation for loss of that office.

(3)

Any assets, rights or liabilities of the Board immediately before its dissolution become (subject to the National VET legislation) the assets or liabilities of the Crown.

4Construction of references to former NSW VET legislation and Board(1)

In any document:

• (a)

  a reference to the Vocational Education and Training Act 2005 of New South Wales extends to the national VET legislation, and

• (b)

  a reference to a provision of that Act extends to the corresponding provision (if any) of the national VET legislation, and

• (c)

  a reference to the NSW Vocational Education and Training Accreditation Board extends to the National VET Regulator,

except to the extent that the context or subject-matter otherwise indicates or requires.

(2)

In this clause, document means any Act (other than this Act) or statutory instrument, or any other instrument, or any contract or agreement.

5Provision of information and assistance to National VET Regulator(1)

The Secretary of the Department of Industry, or a person authorised in writing by the Secretary, may, on the Secretary’s or authorised person’s own initiative or at the request of the National VET Regulator or an agency of the Commonwealth:

• (a)

  provide the National VET Regulator or agency of the Commonwealth with such documents and other information in the possession or control of the Secretary that is reasonably required by the Regulator or agency in connection with the performance or exercise of its functions under the National VET legislation, and

• (b)

  provide the National VET Regulator or agency of the Commonwealth with such other assistance as is reasonably required by the Regulator or agency to perform or exercise a function or power under the National VET legislation.

(2)

A reference in this clause to any documents and other information in the possession or control of the Secretary includes a reference to any document or other information in the possession or control of the NSW Vocational Education and Training Accreditation Board immediately before its dissolution.

(3)

This clause has effect despite any other Act or law.

6Pending proceedings before ADT or State court(1)

Any proceedings relating to any matter arising under the provisions of the Vocational Education and Training Act 2005 of New South Wales that were commenced in the Administrative Decisions Tribunal or any court before the repeal of that Act, but were not finally determined on that repeal, may continue to be dealt with or otherwise determined (including for the purposes of any appeal or rehearing in relation to those proceedings) as if those provisions had not been repealed by this Act.

(2)

This clause is subject to any provision of the National VET legislation that requires the National VET Regulator to be substituted as a party to any such proceedings in place of the NSW Vocational Education and Training Accreditation Board.