National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1)

Administered by Department of Industry, Science and Resources

Legislation au F2012L02582 Not in force Legislative Instrument

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Explanatory Statement

National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1) made under the National Vocational Education and Training Regulator (Charges) Act 2012

Issued by the authority of the Minister for Tertiary Education, Skills, Science and Research

Subject: National Vocational Education and Training Regulator (Charges) Act 2012

National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1)

 

Authority

Subsections 9(2) and 12(2) of the National Vocational Education and Training Regulator (Charges) Act 2012 (the Charges Act) provide that the Minister must, by legislative instrument, determine the formula for calculating a charge payable under Part 2 and Part 3 of the Charges Act.

Purpose and Operation

The purpose of the legislative instrument is to formally identify the formula for calculating a charge payable under Part 2 and Part 3 of the Charges Act.

Charges are payable by a registered training organisation (RTO) under the Charges Act for the costs and expenses incurred by the Australian Skills Quality Authority (ASQA) when undertaking compliance audits (Part 2) and in circumstances where ASQA has investigated a complaint about an RTO and finds the complaint substantiated (Part 3). In accordance with subsections 9(2) and 12(2), the Minister must make a legislative instrument identify the formula for calculating a charge payable under Part 2 and Part 3 of the Charges Act.

Consultation

The formulas contained in the instrument were consulted upon with stakeholders (state and territory senior officers, peak RTO organisations, peak employee associations and industry representatives) in 2011 as part of the consultation for ASQA’s approved cost recovery impact statement for 1 July 2011-30 June 2014 (as published on www.asqa.gov.au).

ASQA was consulted on the content of the instrument.

 

Description of the provisions of the National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1)

Part 1—Preliminary

Division 1—Arrangements on commencement

1: Name of Instrument
Item 1 names the National Vocational Education and Training Regulator (Charges) Determination 2012 (No.1).

 

2: Commencement

Item 2 identifies that the legislative instrument will commence from 1 January 2013.

 

 

 

3: Purpose and Application

Item 3 identifies the purpose of the legislative instrument as being to determine the formula for calculating a charge payable under Part 2 and Part 3 of the Charges Act.

 

Item 3 also provides that charges payable under Part 2 of the Charges Act are for compliance audits commenced by ASQA on or after 1 January 2013.  Charges payable under Part 3 of the Charges Act are with respect to complaints received by ASQA on or after 1 January 2013. 

 

4: Definitions
Item 4 defines terms used throughout the legislative instrument.

ASQA official travel costs are defined as reasonably incurred airfares and such other travel expenses which may be reasonably incurred, including but not limited to accommodation, car rental and meals.

When determining what is reasonable ASQA must comply with the requirements of the Financial Management and Accountability Act 1997 and Commonwealth Procurement Rules- 1 July 2012, to achieve value for money when purchasing goods and services, including official travel.  In relation to official air travel ASQA must comply with the requirements of the Commonwealth’s policy on domestic and international travel as it exists from time. The current policies of the Commonwealth at the time of commencement of this instrument are Finance Circular 2012/05 - Use of the Best Fare of the Day for Official International Air Travel and Finance Circular 2012/04 - Use of the Lowest Practical Fare for Official Domestic Air Travel.

As provided by the note to Item 4, unless contrary intention appears, an expression has the same meaning in the legislative instrument as in the National Vocational Education and Training Regulator Charges Act 2012.

 

Part 2 – Calculation Formula

5: Calculation Formula

Subitem 5(1) identifies the formula to calculate the charges payable by a RTO subject to a compliance audit undertaken by ASQA.  The formula provides that the RTO must pay a rate of $150 per hour capped at $5,000 plus ASQA official travel costs.

 

For compliance audits conducted outside Australia in whole or part that commenced on or after 1 January 2014, the RTO must pay any additional expenses reasonably incurred by ASQA relating to the audit or part of the audit.  This will vary according to the location of the off-shore activity.

 

Subitem 5(2) identifies the formula to calculate the charge payable by an RTO which is the subject of a complaints investigation where the complaint is substantiated.  The formula provides that the RTO must pay a rate of $150 per hour capped at $3,000 plus ASQA official travel costs and, if a compliance audit is conducted as part of the investigation, $150 per hour capped at $5000 per activity, plus government approved travel costs.

 

For investigations and compliance audits conducted outside Australia in whole or part that commenced on or after 1 January 2014, the RTO must pay any additional expenses reasonably incurred by ASQA relating to the investigation or audit or part of the investigation or audit.  This will vary according to the location of the off-shore activity.

 


 Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1)

 

This Legislative Instrument (the Instrument) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The Instrument is made by the Minister under subclauses 9(2) and 12(2) of the National Vocational Education and Training Regulator (Charges) Act 2012 (the Charges Act).

 

The purpose of the Instrument is to set the formula that will enable ASQA to charge for compliance audits and the investigation of substantiated complaints which are conducted by ASQA of registered training organisations (RTOs).  These charges will support ASQA’s regulatory functions by allowing it to recover costs for the regulatory functions it undertakes and fulfil its budgetary obligations.

 

Human rights implications

 

Right to education

The legislative instrument engages the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights.

 

The objectives of the Instrument is to enable ASQA to charge RTOs for complaints investigations, where substantiated and to charge for compliance audits.  Charging for substantiated complaints will provide additional encouragement for RTOs to comply with the requirements of the National Vocational Education and Training Regulator Act 2011.  This will assist ASQA to undertake its regulatory functions in the vocational education and training (VET) sector, ensuring improved quality and greater integrity in the VET system and will therefore protect students’ rights to education.

 

To the extent that the right to education is engaged, it is reasonable, necessary and proportionate for the Instrument to set a formula that should act as a deterrent to the poor quality provision of vocational training.

 

Conclusion

 

This Instrument is compatible with human rights because it protects the right to education.

 

 

Senator Chris Evans, Minister for Tertiary Education, Skills, Science and Research

 

Overview

The National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1) was enacted to address the need for a structured approach to the financial management of compliance audits and investigations conducted by the Australian Skills Quality Authority (ASQA) within the vocational education and training sector. This legislative instrument was introduced under the authority of the Minister for Tertiary Education, Skills, Science and Research, in accordance with the National Vocational Education and Training Regulator (Charges) Act 2012. The primary policy objective of this determination is to provide a clear and transparent formula for calculating charges applicable to registered training organisations (RTOs) for services provided by ASQA, thereby ensuring that ASQA can recover costs related to its regulatory functions and maintain budgetary obligations. The determination outlines specific formulas for charges related to compliance audits and substantiated complaints, supporting ASQA's role in upholding the quality and integrity of the vocational education and training system.

Scope and Application

The National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1) applies to registered training organisations (RTOs) within the Australian vocational education and training sector. The charges stipulated in this instrument are applicable to RTOs subject to compliance audits or substantiated complaints investigations conducted by the Australian Skills Quality Authority (ASQA) under the National Vocational Education and Training Regulator (Charges) Act 2012. The determination sets out the formula for calculating charges for such audits and investigations, which commenced on or after 1 January 2013. The geographic scope of the Act is national, as it applies across Australia and pertains to the activities of ASQA, a Commonwealth body. The Act provides a specific formula for calculating charges, which includes a rate of $150 per hour with caps of $5,000 for compliance audits and $3,000 for substantiated complaints investigations, plus ASQA's official travel costs. For audits or investigations conducted outside Australia from 1 January 2014, RTOs must also pay any additional expenses reasonably incurred by ASQA, which will vary by location. The instrument was developed in consultation with relevant stakeholders and is designed to support ASQA’s regulatory functions by enabling the recovery of costs incurred in the course of compliance and investigations.

Key Provisions

The primary operative sections of the National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1) include Item 1, which names the instrument, and Item 2, which specifies that the instrument will commence from 1 January 2013. Item 3 outlines the purpose of the instrument, which is to determine the formula for calculating a charge payable under Part 2 and Part 3 of the National Vocational Education and Training Regulator (Charges) Act 2012 (the Charges Act). Item 4 provides definitions for terms used in the instrument, including the definition of ASQA official travel costs. The calculation formula is specified in Item 5, which details the rate of charges for compliance audits and substantiated complaints, including a cap and additional costs for off-shore activities. The obligations imposed by the Act on the parties it governs primarily concern the payment of charges by registered training organisations (RTOs) for compliance audits and substantiated complaints. RTOs are required to pay a rate of $150 per hour for compliance audits, capped at $5,000, plus ASQA official travel costs. For substantiated complaints, RTOs must pay $150 per hour, capped at $3,000, plus ASQA official travel costs and, if applicable, additional costs for compliance audits as part of the investigation. These charges are intended to cover the costs and expenses incurred by the Australian Skills Quality Authority (ASQA) when conducting compliance audits and investigating complaints. RTOs are also responsible for any additional expenses reasonably incurred by ASQA relating to off-shore activities. Breaches of the provisions outlined in the Determination may have civil or criminal consequences, depending on the nature of the offence. While the Determination itself does not specify penalties, the Charges Act under which this Determination is made may provide for penalties for non-compliance. Typically, penalties for breaches of legislation related to charges and fees could include fines or other monetary penalties. The exact penalties would be governed by the provisions of the Charges Act or other relevant legislation, which would need to be consulted for specific details on the maximum penalties applicable in cases of non-compliance.

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Education Law
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Regulation
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Definitions & Interpretation
Calculation Formula
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