Australian Skills Quality Authority Instrument Fixing Fees Amendment (Governance and Other Matters) Determination 2021

Administered by Department of Education

Legislation au F2021L00701 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of Stuart Robert, Minister for Employment, Workforce, Skills, Small and Family Business

 

National Vocational Education and Training Regulator Act 2011

 

Australian Skills Quality Authority Instrument Fixing Fees Amendment (Governance and Other Matters) Determination 2021

 

AUTHORITY

 

Subsection 232(1) of the National Vocational Education and Training Regulator Act 2011 (the Act) empowers the Minister to, by legislative instrument, determine the amounts of fees the National VET Regulator may charge for goods or services the Regulator provides in performing the Regulator’s functions (other than the service mentioned in subsection 35(2) of the Act).

 

Subsection 232(5) of the Act empowers the Minister to, in a determination made under subsection 232(1), determine other matters relating to the payment of fees, including:

 

(a)   the circumstances in which fees may be paid in instalments; and

(b)   the circumstances in which fees may be set off against another amount payable; and

(c)    the circumstances in which fees may be waived.

 

Subsection 232(2) of the Act requires the Minister to get the Ministerial Council’s agreement to the amount of a fee that:

 

(a)   relates to goods or services in respect of registration as an NVR registered training organisation; or

(b)   relates to goods or services provided to NVR registered training organisations; or

(c)    relates to goods or services in respect of:

(i)                  the accreditation of a course as a VET accredited course; or

(ii)                VET accredited courses.

 

As the Australian Skills Quality Authority Instrument Fixing Fees Amendment (Governance and Other Matters) Determination 2021 (the Instrument) does not amend the amount of such fees, agreement from the Ministerial Council is not required.

 

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant, or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

 

The regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of the Legislation Act 2003 provide that section 42 and Part 4 of that Act do not apply in relation to an instrument made under subsection 232(1) of the Act. As such, an instrument made under subsection 232(1) is not subject to disallowance or sunsetting.

 

PURPOSE AND OPERATION

 

The Instrument amends the Australian Skills Quality Authority Instrument Fixing Fees No. 1 of 2013 (the Principal Instrument) to omit references to “ASQA” and substitute them with references to “National VET Regulator” where relevant, so that the Principal Instrument is consistent with the Act. The Instrument also makes some minor amendments to the Principal Instrument to reflect current drafting practices.

 

BACKGROUND

 

The Act establishes the National VET Regulator and, along with associated legislation, provides a framework for the regulation of vocational education and training (VET). The Principal Instrument determines the amounts of fees the National VET Regulator may charge for goods or services the National VET Regulator provides in performing the Regulator’s functions, along with certain other matters for the purposes of subsection 232(5) of the Act.

 

In late 2019, the Australian Government engaged experts to conduct a rapid review of the Australian Skills Quality Authority’s (ASQA’s) regulatory practices and processes. In March 2020, the final report from that rapid review was provided to the Australian Government (as at 16 March 2021, the ASQA rapid review final report could be accessed at https://www.dese.gov.au/nci/resources/asqa-rapid-review-final-report). The final report concluded that, while ASQA’s overarching vision and purpose remained appropriate, some adjustments to its practices are needed to improve its engagement and communication with the sector and to ensure its regulatory approach is guided by regulatory necessity, risk and proportionality.

 

On 1 January 2021, Parts 1 and 2 of Schedule 1 to the National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Act 2020 (the Amendment Act) commenced. Those amendments strengthened the National VET Regulator’s governance arrangements in line with the rapid review recommendations. Relevantly, the amendments replaced the Chief Commissioner / Chief Executive Officer and two Commissioners governance arrangement with a single independent statutory office holder, known as the National VET Regulator.

 

REGULATORY IMPACT

 

The Office of Best Practice Regulation advised that a Regulation Impact Statement is not required (OBPR Reference ID: [25471)

 

COMMENCEMENT

 

The Instrument commences the day after it is registered on the Federal Register of Legislation.

 

CONSULTATION

 

The National VET Regulator and the state and territory governments have been consulted regarding the making of the Instrument. No concerns were raised.

Clause 5.2.1 of the Intergovernmental Agreement for Regulatory Reform in Vocational Education and Training states that the Commonwealth will consult with states and territories on proposals to make amendments to the National VET Regulator legislation. The Australian Government undertakes this consultation with the states and territories through the Skills Senior Officials’ Network (SSON). SSON is comprised of senior officials from each state and territory government department responsible for VET.

Representatives from the VET sector have not been consulted regarding the making of the Instrument. This is because the Instrument makes largely technical amendments to align terminology with the Act and does not impact or affect the types or value of fees payable.

 


AUSTRALIAN SKILLS QUALITY AUTHORITY INSTRUMENT FIXING FEES AMENDMENT (GOVERNANCE AND OTHER MATTERS) DETERMINATION 2021

 

EXPLANATION OF PROVISIONS

  

Section 1 – Name

  1. This section provides that the name of the Instrument is the Australian Skills Quality Authority Instrument Fixing Fees Amendment (Governance and Other Matters) Determination 2021.

 

Section 2 – Commencement

2.      This section provides that the whole of the Instrument commences on the day after the Instrument is registered on the Federal Register of Legislation.

 

Section 3 – Authority

3.      This section provides that the Instrument is made under subsections 232(1) and 232(5) of the Act.

 

Section 4 – Schedules

4.      This section provides that each instrument that is specified in a Schedule to the Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Instrument has effect according to its terms.

 

Schedule 1 – Amendments

 

Item 1 – Paragraph 5(a)

5.      This item makes a minor amendment to paragraph 5(a), substituting “Australian Skills Quality Authority” with “National VET Regulator”.

 

Item 2 – Paragraph 5(a)

6.      This item makes a minor amendment to paragraph 5(a), substituting “it” with “the Regulator”.

 

Item 3 – Paragraph 5(a)

7.      This item makes a minor amendment to paragraph 5(a), substituting “its” with “the Regulator’s”.

 

Item 4 – Section 6  Definitions
This item repeals section 6 and substitutes it with a new section 6.

8.      A note at the beginning of new section 6 provides that a number of expressions used in the Principal Instrument are defined in section 3 of the Act, including “Australian Qualifications Framework”, “National VET Regulator”, “NVR registered training organisation”, “registered provider”, “registered training organisation” and “VET accredited course”.

9.      New section 4 defines “Act”, “ASQA”, “CRICOS”, “delivery site”, “ELICOS”, “ESOS Act”, “ESOS Agency”, “qualification”, “RTO”, “training package” and “units of competency”.

10.  This item effectively repeals the definitions of “ASQAnet” and “NVR”, as these terms are not used in the Principal Instrument.

11.  This item is linked to the changes in sections 28, 29, 40 and 41 of the Amendment Act that relate to the National VET Regulator’s governance arrangements, and promotes consistency with current drafting practices.

 

Item 5 – 23

12.  These items make minor amendments to align the language used in the Principal Instrument with the language used in the National Vocational Education and Training Regulator Act 2011. These items omit references to “ASQA” and substitute them with “the National VET Regulator”.

Overview

The Australian Skills Quality Authority Instrument Fixing Fees Amendment (Governance and Other Matters) Determination 2021, enacted to align the regulatory terminology and practices with the legislative framework established by the National Vocational Education and Training Regulator Act 2011, aims to address the gap created by the structural changes in governance within the vocational education and training sector. This Determination, issued under the authority of the Minister for Employment, Workforce, Skills, Small and Family Business, makes technical amendments to the Australian Skills Quality Authority Instrument Fixing Fees No. 1 of 2013 to ensure consistency with the new legislative provisions following the transition to the National VET Regulator. The policy objective of the Determination is to enhance clarity and coherence within the regulatory framework, thereby facilitating effective governance and operational efficiency. The Instrument aligns with the rapid review recommendations aimed at improving regulatory practices and ensuring a proportionate approach to the regulation of vocational education and training.

Scope and Application

The Australian Skills Quality Authority Instrument Fixing Fees Amendment (Governance and Other Matters) Determination 2021 applies to the Australian Skills Quality Authority, now referred to as the National VET Regulator, and is concerned with amending the fees that the Regulator may charge for goods and services provided in its functions, excluding certain specified services. This Determination operates under the National Vocational Education and Training Regulator Act 2011 and is made under the authority of the Minister for Employment, Workforce, Skills, Small and Family Business. It amends the Australian Skills Quality Authority Instrument Fixing Fees No. 1 of 2013 to ensure consistency with the Act, particularly following the establishment of the National VET Regulator as a single independent statutory office holder. The geographic reach of this legislation is national, as it pertains to the regulatory framework for vocational education and training across Australia. The Determination is not subject to disallowance or sunsetting, and it aligns with the current drafting practices of the Act. The Minister is required to obtain the agreement of the Ministerial Council for certain fee-related matters, but this was not necessary for this particular Determination as it does not alter the fee amounts. The commencement of this Determination is effective from the day after its registration on the Federal Register of Legislation.

Key Provisions

The Australian Skills Quality Authority Instrument Fixing Fees Amendment (Governance and Other Matters) Determination 2021 amends the Australian Skills Quality Authority Instrument Fixing Fees No. 1 of 2013 to ensure consistency with the National Vocational Education and Training Regulator Act 2011. Section 1 of the Determination specifies that the Instrument’s name is the Australian Skills Quality Authority Instrument Fixing Fees Amendment (Governance and Other Matters) Determination 2021. The Determination commences on the day after it is registered on the Federal Register of Legislation, as outlined in Section 2. It is made under subsections 232(1) and 232(5) of the Act, as stated in Section 3. Section 4 of the Determination explains that each instrument specified in the Schedules is amended or repealed according to the applicable items in the Schedules. The Act, as referenced in subsection 232(1), empowers the Minister to determine the fees that the National VET Regulator may charge for goods or services provided in performing its functions. This includes setting the fees for registration as an NVR registered training organisation, services provided to such organisations, and the accreditation of courses as VET accredited courses. The Act also allows the Minister to determine conditions under which fees may be paid in instalments, set off against another amount payable, or waived. However, where the fee relates to registration or VET accredited courses, the Minister must obtain the Ministerial Council's agreement before setting the fee, as required by subsection 232(2). The Determination does not alter the fee amounts, thus no such agreement is necessary. Under the Determination, the obligations on the National VET Regulator include updating the terminology in the fees schedule to align with the National VET Regulator Act 2011, replacing references to “ASQA” with “National VET Regulator”. This change ensures consistency across the legislative framework and reflects the governance changes resulting from the National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Act 2020. The Regulator must also ensure that the fees and conditions for their payment comply with the Act’s provisions. Breaches of the provisions in the Determination could lead to civil or criminal consequences depending on the nature of the non-compliance. While the Determination does not explicitly outline specific penalties, breaches of related provisions in the Act may incur penalties under other sections. For instance, non-compliance with fee-setting provisions could result in fines or other penalties as prescribed by the relevant legislation. The National VET Regulator must adhere strictly to the conditions and obligations outlined in the Determination to avoid any legal repercussions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.