Federal Register of Legislation - Australian Government

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A Bill for an Act to provide for student identifiers and access to transcripts relating to vocational education and training, and for related purposes
Administered by: Industry, Innovation, Science, Research and Tertiary Education
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 26 Mar 2013
Introduced HR 20 Mar 2013

2010‑2011‑2012‑2013

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Student Identifiers Bill 2013

 

No.      , 2013

 

(Industry, Innovation, Science, Research and Tertiary Education)

 

 

 

A Bill for an Act to provide for student identifiers and access to transcripts relating to vocational education and training, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Simplified outline of this Act.............................................................. 2

4............ Definitions.......................................................................................... 3

5............ Act to bind the Crown......................................................................... 6

6............ Extension to external Territories.......................................................... 6

7............ Extraterritorial application................................................................... 6

Part 2—Student identifiers                                                                                               7

Division 1—Assignment of student identifiers etc.                                        7

8............ Application for the assignment of an identifier.................................... 7

9............ Assignment of an identifier by the CEO............................................. 7

10.......... Destruction of personal information collected for the purpose of making an application          8

11.......... CEO to resolve problems in relation to the assignment of student identifiers           8

12.......... Review by the Administrative Appeals Tribunal................................. 9

Division 2—Verification or giving of student identifiers                         10

13.......... Request to verify or give a student identifier..................................... 10

14.......... Verification or giving of a student identifier...................................... 10

Division 3—Protection of records of student identifiers                          11

15.......... Records of student identifiers must be protected from misuse etc..... 11

Division 4—Collection, use or disclosure of student identifiers           12

16.......... Unauthorised collection, use or disclosure of student identifiers....... 12

17.......... Collection, use or disclosure by the CEO.......................................... 12

18.......... Collection, use or disclosure with the individual’s consent............... 12

19.......... Collection, use or disclosure relating to unlawful activities etc.......... 13

20.......... Collection, use or disclosure for law enforcement purposes etc........ 13

21.......... Collection, use or disclosure authorised by regulations..................... 14

Division 5—Interaction with the Privacy Act 1988                                   15

22.......... Contraventions that are interferences with the privacy of an individual 15

23.......... Additional functions of the Information Commissioner.................... 15

24.......... Use or disclosure of personal information authorised for the purposes of the Privacy Act 1988              16

Part 3—Authenticated VET transcripts                                                                17

25.......... Individual may be given access to an authenticated VET transcript etc. 17

26.......... Registered training organisation or VET‑related body may be given access to an authenticated VET transcript etc........................................................................................................... 17

27.......... Requirement relating to extracts from authenticated VET transcripts 18

Part 4—Student Identifiers Agency                                                                          19

Division 1—Establishment etc. of the Agency                                               19

28.......... Establishment.................................................................................... 19

29.......... Constitution of the Agency............................................................... 19

30.......... Function of the Agency..................................................................... 19

31.......... Agency to have the privileges and immunities of the Crown............ 19

Division 2—Chief Executive Officer                                                                  20

Subdivision A—Functions and powers                                                                20

32.......... Chief Executive Officer..................................................................... 20

33.......... Functions of the CEO....................................................................... 20

34.......... Commonwealth Minister may give directions to the CEO................ 21

Subdivision B—Appointment of CEO                                                                 21

35.......... Appointment..................................................................................... 21

36.......... Term of appointment......................................................................... 21

37.......... Acting CEO...................................................................................... 22

Subdivision C—Terms and conditions of appointment                                  22

38.......... Remuneration and allowances........................................................... 22

39.......... Leave of absence............................................................................... 22

40.......... Outside employment......................................................................... 23

41.......... Disclosure of interests....................................................................... 23

42.......... Other terms and conditions............................................................... 23

43.......... Resignation....................................................................................... 23

44.......... Termination of appointment.............................................................. 23

Subdivision D—Delegation                                                                                    24

45.......... Delegation by the CEO..................................................................... 24

Division 3—Staff and consultants                                                                        25

46.......... Staff.................................................................................................. 25

47.......... Secondment of Commonwealth, State or Territory officers etc......... 25

48.......... Consultants....................................................................................... 26

Division 4—Special Account                                                                                   27

49.......... Student Identifiers Special Account.................................................. 27

50.......... Credits to the Account....................................................................... 27

51.......... Purposes of the Account................................................................... 27

Division 5—Annual report                                                                                       29

52.......... Annual report.................................................................................... 29

Part 5—Other matters                                                                                                       30

53.......... Issue of VET qualifications etc......................................................... 30

54.......... Saving of other laws and remedies.................................................... 30

55.......... Disapplication of Division 4 of Part 2............................................... 31

56.......... Severability....................................................................................... 32

57.......... Regulations....................................................................................... 33

 


A Bill for an Act to provide for student identifiers and access to transcripts relating to vocational education and training, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Student Identifiers Act 2013.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 57

A day or days to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Simplified outline of this Act

                   The following is a simplified outline of this Act:

•      Part 2 deals with student identifiers and includes rules about:

               (a)     the assignment of student identifiers; and

              (b)     the verification or giving of student identifiers; and

               (c)     the protection of records of student identifiers; and

              (d)     the collection, use or disclosure of student identifiers.

•      Part 3 provides for access to an authenticated VET transcript of an individual or to an extract of such a transcript. Access may be requested by the individual, a registered training organisation or a VET‑related body.

•      Part 4 deals with the establishment of the Student Identifiers Agency. It also deals with the CEO, the staff and consultants of the Agency and the Student Identifiers Special Account.

•      Part 5 deals with various matters including matters relating to the application of this Act.

4  Definitions

             (1)  In this Act:

access controls has the meaning given by paragraph 33(1)(f).

Account means the Student Identifiers Special Account established by section 49.

Agency means the Student Identifiers Agency established by section 28.

authenticated VET transcript of an individual means a document prepared by the CEO that sets out information:

                     (a)  that relates to the VET undertaken by the individual; and

                     (b)  that is prescribed by the regulations.

CEO means the Chief Executive Officer of the Agency.

Commonwealth Minister means the Minister administering this Act.

corresponding law of a State or Territory means a law of a State or Territory that corresponds with Division 4 of Part 2 and the regulations made under section 21.

entity means:

                     (a)  a person; or

                     (b)  a partnership; or

                     (c)  any other unincorporated association or body; or

                     (d)  a trust.

identifier means a unique combination of any or all of the following:

                     (a)  letters;

                     (b)  numbers;

                     (c)  symbols.

misconduct includes fraud, negligence, default, breach of trust, breach of duty, breach of discipline or any other misconduct in the course of duty.

personal information has the same meaning as in the Privacy Act 1988.

public body of a State or Territory means:

                     (a)  the Crown in right of the State or Territory; or

                     (b)  a State or Territory authority (within the meaning of the Privacy Act 1988) of that State or Territory; or

                     (c)  the head (however described) of a Department of State of the State or Territory; or

                     (d)  the Parliament of the State or the legislature of the Territory; or

                     (e)  a member of the Parliament of the State or of the legislature of the Territory.

registered training organisation has the same meaning as in the National Vocational Education and Training Regulator Act 2011.

Standing Council means:

                     (a)  if there is a body known as the Council of Australian Governments Standing Council on Tertiary Education, Skills and Employment—that body; or

                     (b)  otherwise—a body prescribed by the regulations.

student identifier means an identifier assigned to an individual by the CEO under section 9 or 11.

VET means vocational education and training.

VET admission body means an entity specified in an instrument under subsection (2).

VET course has the same meaning as in the National Vocational Education and Training Regulator Act 2011.

VET‑related body means:

                     (a)  a Department of the Commonwealth (other than the Agency), or a Department of a State or Territory, that deals with matters relating to VET (including the funding of VET); or

                     (b)  a body (whether incorporated or not) established by or under a law of the Commonwealth, a State or a Territory that performs functions relating to VET (including the funding of VET); or

                     (c)  a VET Regulator (within the meaning of the National Vocational Education and Training Regulator Act 2011); or

                     (d)  an entity specified in an instrument under subsection (3).

             (2)  The CEO may, by legislative instrument, specify an entity for the purposes of the definition of VET admission body in subsection (1).

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

             (3)  The CEO may, by legislative instrument, specify an entity for the purposes of paragraph (d) of the definition of VET‑related body in subsection (1).

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

5  Act to bind the Crown

                   This Act binds the Crown in each of its capacities.

6  Extension to external Territories

                   This Act extends to every external Territory.

7  Extraterritorial application

                   This Act extends to acts, omissions, matters and things outside Australia.

Part 2Student identifiers

Division 1Assignment of student identifiers etc.

8  Application for the assignment of an identifier

             (1)  An individual may apply to the CEO for an identifier to be assigned to the individual.

             (2)  The following entities may apply to the CEO for an identifier to be assigned to an individual if authorised by the individual to make an application under this section:

                     (a)  a registered training organisation;

                     (b)  a VET admission body;

                     (c)  another entity.

             (3)  The application must:

                     (a)  be made in a manner and form approved by the CEO; and

                     (b)  include any information required by the CEO.

9  Assignment of an identifier by the CEO

             (1)  If an application is made under section 8 in relation to an individual, the CEO must assign an identifier to the individual if the CEO is satisfied that:

                     (a)  the identity of the individual has been appropriately verified; and

                     (b)  the individual has not already been assigned a student identifier.

             (2)  The CEO must give written notice of the CEO’s decision on the application to:

                     (a)  the applicant; and

                     (b)  if the applicant is not the individual—the individual.

             (3)  If the CEO assigns an identifier to the individual, the notice given under subsection (2) must:

                     (a)  set out the identifier; and

                     (b)  if the notice is given to the individual—explain the purposes and uses of the identifier.

             (4)  If the CEO refuses to assign an identifier to the individual, the notice given under subsection (2) must set out the reasons for the refusal.

10  Destruction of personal information collected for the purpose of making an application

             (1)  If:

                     (a)  a registered training organisation, VET admission body or other entity is authorised by an individual to make an application under section 8; and

                     (b)  the organisation, body or entity collects personal information about the individual for the purpose of making the application; and

                     (c)  some or all of the personal information is collected solely for the purpose of making the application;

the organisation, body or entity must destroy the personal information collected solely for that purpose as soon as practicable after the application is made or it is no longer needed for that purpose.

             (2)  Subsection (1) does not apply if the registered training organisation, VET admission body or other entity is required by or under any law to retain the information.

Note:          A contravention of this section is taken to be an interference with the privacy of an individual for the purposes of the Privacy Act 1988 (see section 22 of this Act).

11  CEO to resolve problems in relation to the assignment of student identifiers

             (1)  The CEO may do either or both of the following in order to resolve a problem that has occurred in relation to the assignment of one or more student identifiers to one or more individuals:

                     (a)  revoke one or more of those student identifiers;

                     (b)  assign a new identifier to one or more of those individuals.

             (2)  If the CEO does a thing mentioned in subsection (1) in relation to an individual, the CEO must give written notice of the CEO’s decision to:

                     (a)  the individual; and

                     (b)  a VET‑related body of a kind referred to in paragraph (a) of the definition of that expression in subsection 4(1); and

                     (c)  any other entity that the CEO considers appropriate in the circumstances.

             (3)  The notice given under subsection (2) must set out:

                     (a)  if a student identifier of the individual has been revoked—the revoked identifier; and

                     (b)  if a new identifier has been assigned to the individual—the new identifier.

12  Review by the Administrative Appeals Tribunal

             (1)  Applications may be made to the Administrative Appeals Tribunal by an individual for review of the following decisions of the CEO:

                     (a)  a refusal to assign an identifier to the individual under section 9;

                     (b)  a decision under section 11 to revoke a student identifier of the individual or to assign a new identifier to the individual.

             (2)  Subsection (1) has effect despite subsection 27(1) of the Administrative Appeals Tribunal Act 1975.

Division 2Verification or giving of student identifiers

13  Request to verify or give a student identifier

             (1)  Any of the following entities may request the CEO to verify that an identifier is the student identifier of an individual, or to give the entity the student identifier of an individual:

                     (a)  the individual;

                     (b)  a registered training organisation;

                     (c)  a VET‑related body;

                     (d)  a VET admission body authorised by the individual to make a request under this section.

             (2)  The request must:

                     (a)  be made in a manner and form approved by the CEO; and

                     (b)  include any information required by the CEO.

14  Verification or giving of a student identifier

             (1)  If a request is made under section 13 in relation to an individual, the CEO may, by written notice given to the entity that made the request, verify or give the student identifier of the individual.

             (2)  If the CEO refuses to verify or give the student identifier, the CEO must give the entity that made the request written notice of the refusal and the reasons for the refusal.

Division 3Protection of records of student identifiers

15  Records of student identifiers must be protected from misuse etc.

             (1)  The CEO must take reasonable steps to protect a record of student identifiers kept by the CEO:

                     (a)  from misuse, interference and loss; and

                     (b)  from unauthorised access, modification or disclosure.

             (2)  If any other entity keeps a record of student identifiers, the entity must take reasonable steps to protect the record:

                     (a)  from misuse, interference and loss; and

                     (b)  from unauthorised access, modification or disclosure.

             (3)  Subsection (2) does not apply to an individual who keeps a record of the student identifier of the individual.

Note:          A contravention of this section is taken to be an interference with the privacy of an individual for the purposes of the Privacy Act 1988 (see section 22 of this Act).

Division 4Collection, use or disclosure of student identifiers

16  Unauthorised collection, use or disclosure of student identifiers

                   An entity must not collect, use or disclose a student identifier of an individual if:

                     (a)  the entity is not the individual; and

                     (b)  the collection, use or disclosure is not authorised under this Division.

Note:          A contravention of this section is taken to be an interference with the privacy of the individual for the purposes of the Privacy Act 1988 (see section 22 of this Act).

17  Collection, use or disclosure by the CEO

             (1)  The CEO is authorised to collect, use or disclose a student identifier of an individual if the collection, use or disclosure is for the purposes of the CEO performing his or her functions or exercising his or her powers.

             (2)  The CEO is authorised to use or disclose a student identifier of an individual if the use or disclosure is for the purposes of research:

                     (a)  that relates (directly or indirectly) to education or training, or that requires the use of student identifiers or information about education or training; and

                     (b)  that meets the requirements specified by the Standing Council.

18  Collection, use or disclosure with the individual’s consent

             (1)  An entity is authorised to collect, use or disclose a student identifier of an individual if the individual consents (expressly or impliedly) to the collection, use or disclosure.

                 (2)  However, the individual cannot consent to the entity using the individual’s student identifier as the entity’s own identifier of the individual.

19  Collection, use or disclosure relating to unlawful activities etc.

                   An entity is authorised to collect, use or disclose a student identifier of an individual if:

                     (a)  the entity has reason to suspect that unlawful activity, or misconduct of a serious nature, that relates to the entity’s functions or activities has been, is being or may be engaged in; and

                     (b)  the entity reasonably believes that the collection, use or disclosure is necessary in order for the entity to take appropriate action in relation to the matter.

20  Collection, use or disclosure for law enforcement purposes etc.

                   An entity is authorised to collect, use or disclose a student identifier of an individual if the entity reasonably believes that the collection, use or disclosure is reasonably necessary for one or more of following things done by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988):

                     (a)  the prevention, detection, investigation, prosecution or punishment of:

                              (i)  criminal offences; or

                             (ii)  breaches of a law imposing a penalty or sanction;

                     (b)  the conduct of surveillance activities, intelligence gathering activities or monitoring activities;

                     (c)  the conduct of protective or custodial activities;

                     (d)  the enforcement of laws relating to the confiscation of the proceeds of crime;

                     (e)  the protection of the public revenue;

                      (f)  the prevention, detection, investigation or remedying of misconduct of a serious nature, or other conduct prescribed by the regulations;

                     (g)  the preparation for, or conduct of, proceedings before any court or tribunal, or the implementation of the orders of a court or tribunal.

21  Collection, use or disclosure authorised by regulations

                   An entity is authorised to collect, use or disclose a student identifier of an individual if the collection, use or disclosure is authorised by the regulations.

Division 5Interaction with the Privacy Act 1988

22  Contraventions that are interferences with the privacy of an individual

             (1)  An act or practice that contravenes:

                     (a)  section 10 in relation to personal information about an individual; or

                     (b)  section 15 or 16 in relation to a student identifier of an individual;

is taken, for the purposes of the Privacy Act 1988, to be an interference with the privacy of the individual (within the meaning of that Act).

Note:          An act or practice that is an interference with the privacy of the individual may be the subject of an investigation by the Information Commissioner under Part V of that Act.

             (2)  If:

                     (a)  an act or practice of an entity that contravenes section 10, 15 or 16 is the subject of an investigation by the Information Commissioner under Part V of the Privacy Act 1988; and

                     (b)  the entity is not an agency (within the meaning of that Act) or organisation (within the meaning of that Act);

the entity is taken, for the purposes of that Part and any other provision of that Act that relates to that Part, to be an organisation (within the meaning of that Act).

23  Additional functions of the Information Commissioner

             (1)  In addition to the Information Commissioner’s functions under the Privacy Act 1988, the Information Commissioner has the following functions:

                     (a)  to investigate an act or practice that may be an interference with the privacy of an individual under subsection 22(1) and, if the Information Commissioner considers it appropriate to do so, to attempt by conciliation to effect a settlement of the matters that gave rise to the investigation;

                     (b)  to conduct an assessment of whether the CEO is maintaining or handling student identifiers in accordance with the requirements of this Act;

                     (c)  to do anything incidental or conducive to the performance of those functions.

             (2)  The Information Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions under subsection (1).

             (3)  The Information Commissioner may conduct an assessment under paragraph (1)(b) in such manner as the Commissioner considers fit.

             (4)  Section 56 (rather than section 12B of the Privacy Act 1988) applies in relation to the matters referred to in paragraph (1)(a) or (b) of this section in the same way as it applies to this Act.

24  Use or disclosure of personal information authorised for the purposes of the Privacy Act 1988

             (1)  The use or disclosure by an entity of personal information about an individual is taken, for the purposes of the Privacy Act 1988, to be authorised by this Act if the use or disclosure is for the purposes of the CEO performing his or her functions or exercising his or her powers.

             (2)  The use or disclosure by the CEO of personal information about an individual is taken, for the purposes of the Privacy Act 1988, to be authorised by this Act if the use or disclosure is for the purposes of research:

                     (a)  that relates (directly or indirectly) to education or training, or that requires the use of student identifiers or information about education or training; and

                     (b)  that meets the requirements specified by the Standing Council.

Part 3Authenticated VET transcripts

  

25  Individual may be given access to an authenticated VET transcript etc.

             (1)  The CEO may, on request, give an individual who has been assigned a student identifier access to:

                     (a)  an authenticated VET transcript of the individual; or

                     (b)  an extract from an authenticated VET transcript of the individual.

             (2)  The request must:

                     (a)  be made in a manner and form approved by the CEO; and

                     (b)  include any information required by the CEO; and

                     (c)  if the request is for an extract—specify the information to be excluded from the extract.

             (3)  If the CEO refuses to give access under subsection (1), the CEO must give the individual written notice of the decision and the reasons for the decision.

26  Registered training organisation or VET‑related body may be given access to an authenticated VET transcript etc.

             (1)  The CEO may, on request, give a registered training organisation or VET‑related body access to:

                     (a)  an authenticated VET transcript of an individual who has been assigned a student identifier; or

                     (b)  an extract from an authenticated VET transcript of an individual who has been assigned a student identifier;

in accordance with the access controls set by the individual.

             (2)  The request must:

                     (a)  be made in a manner and form approved by the CEO; and

                     (b)  include any information required by the CEO.

             (3)  The CEO must not give access under subsection (1) unless access controls have been set by the individual.

             (4)  If the CEO refuses to give access under subsection (1), the CEO must give the registered training organisation or VET‑related body written notice of the decision and the reasons for the decision.

27  Requirement relating to extracts from authenticated VET transcripts

             (1)  If the CEO gives access to an extract from an authenticated VET transcript of an individual, the extract must include a statement that it is an extract.

             (2)  Subsection (1) does not apply if:

                     (a)  the only information not included in the extract is information of a kind prescribed by the regulations; or

                     (b)  the CEO considers that it is not appropriate for the extract to include a statement that it is an extract.

Part 4Student Identifiers Agency

Division 1Establishment etc. of the Agency

28  Establishment

                   The Student Identifiers Agency is established by this section.

29  Constitution of the Agency

                   The Agency consists of:

                     (a)  the CEO; and

                     (b)  the staff of the Agency.

Note:          The Agency does not have a legal identity separate from the Commonwealth.

30  Function of the Agency

                   The Agency’s function is to assist the CEO in the performance of the CEO’s functions.

31  Agency to have the privileges and immunities of the Crown

                   The Agency has the privileges and immunities of the Crown in right of the Commonwealth.

Division 2Chief Executive Officer

Subdivision AFunctions and powers

32  Chief Executive Officer

                   There is to be a Chief Executive Officer of the Agency.

33  Functions of the CEO

             (1)  The CEO has the following functions:

                     (a)  to assign student identifiers to individuals;

                     (b)  to verify or give a student identifier of an individual;

                     (c)  to prepare and provide access to authenticated VET transcripts of individuals or extracts from such transcripts;

                     (d)  to ensure that a record of all student identifiers is kept in such form as the CEO considers appropriate;

                     (e)  to resolve problems that have occurred in relation to the assignment of student identifiers, including cases where:

                              (i)  an individual has been assigned more than one student identifier; or

                             (ii)  the same student identifier has been assigned to 2 or more individuals;

                      (f)  to establish and maintain a mechanism to enable an individual who has been assigned a student identifier to set controls (the access controls) on:

                              (i)  the registered training organisations and VET‑related bodies that may request access to an authenticated VET transcript of the individual; and

                             (ii)  the registered training organisations and VET‑related bodies that may request access to an extract from an authenticated VET transcript of the individual and the content of the extract;

                     (g)  any other functions conferred on the CEO by this Act, the regulations or any other law of the Commonwealth;

                     (h)  to do anything incidental or conducive to the performance of those functions.

             (2)  The CEO has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions.

34  Commonwealth Minister may give directions to the CEO

             (1)  The Commonwealth Minister may, by legislative instrument, give written directions to the CEO about the performance of the CEO’s functions.

Note:          Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003 do not apply to the directions (see sections 44 and 54 of that Act).

             (2)  The CEO must comply with a direction under subsection (1).

             (3)  Subsection (2) does not apply to the extent that the direction relates to the CEO’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to the Agency or under the Financial Management and Accountability Act 1997.

             (4)  Before giving a direction under subsection (1), the Commonwealth Minister must consult the Standing Council.

Subdivision BAppointment of CEO

35  Appointment

             (1)  The CEO is to be appointed by the Commonwealth Minister by written instrument, on a full‑time basis.

Note:          The CEO may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

             (2)  Before making an appointment, the Commonwealth Minister must consult the Standing Council.

36  Term of appointment

                   The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

37  Acting CEO

             (1)  The Commonwealth Minister may, by written instrument, appoint a person to act as CEO:

                     (a)  during a vacancy in the office of CEO (whether or not an appointment has previously been made to that office); or

                     (b)  during any period, or during all periods, when the CEO:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any other reason, unable to perform the duties of the office.

Note:          See sections 33AB and 33A of the Acts Interpretation Act 1901 for rules that apply to acting appointments.

             (2)  Before the Commonwealth Minister appoints a person to act as CEO for a continuous period of 3 months or more, the Minister must consult the Standing Council.

Subdivision CTerms and conditions of appointment

38  Remuneration and allowances

             (1)  The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed by the regulations.

             (2)  The CEO is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

39  Leave of absence

             (1)  The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Commonwealth Minister may grant to the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

40  Outside employment

                   The CEO must not engage in paid employment outside the duties of his or her office without the Commonwealth Minister’s approval.

41  Disclosure of interests

                   The CEO must give written notice to the Commonwealth Minister of all interests, pecuniary or otherwise, that the CEO has or acquires and that conflict or could conflict with the proper performance of the CEO’s functions.

42  Other terms and conditions

                   The CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Commonwealth Minister.

43  Resignation

             (1)  The CEO may resign his or her appointment by giving the Commonwealth Minister a written resignation.

             (2)  The resignation takes effect on the day it is received by the Commonwealth Minister or, if a later day is specified in the resignation, on that later day.

44  Termination of appointment

             (1)  The Commonwealth Minister may terminate the appointment of the CEO:

                     (a)  for misbehaviour; or

                     (b)  if the CEO is unable to perform the duties of his or her office because of physical or mental incapacity.

             (2)  The Commonwealth Minister may terminate the appointment of the CEO if:

                     (a)  the CEO:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the CEO engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 40); or

                     (d)  the CEO fails, without reasonable excuse, to comply with section 41.

             (3)  If the Commonwealth Minister terminates the appointment of the CEO, the Minister must notify the Standing Council of the termination.

Subdivision DDelegation

45  Delegation by the CEO

             (1)  The CEO may delegate, in writing, all or any of the CEO’s functions or powers to:

                     (a)  a person who is a member of the staff of the Agency under section 46; or

                     (b)  a person to whom an arrangement under section 47 relates.

             (2)  In performing functions or exercising powers under the delegation, the delegate must comply with any written directions of the CEO.

Division 3Staff and consultants

46  Staff

             (1)  The staff of the Agency must be persons engaged under the Public Service Act 1999.

             (2)  For the purposes of that Act:

                     (a)  the CEO and the staff of the Agency together constitute a Statutory Agency; and

                     (b)  the CEO is the Head of that Statutory Agency.

47  Secondment of Commonwealth, State or Territory officers etc.

Secondment of Commonwealth officers etc.

             (1)  The CEO may arrange with:

                     (a)  an Agency Head (within the meaning of the Public Service Act 1999) of an Agency (within the meaning of that Act); or

                     (b)  an authority of the Commonwealth;

for the services of officers or employees of the Agency referred to in paragraph (a), or the authority, to be made available to assist the CEO in the performance of the CEO’s functions.

Secondment of State or Territory officers etc.

             (2)  The CEO may arrange with the appropriate authority of a State or Territory for the services of officers or employees of the following to be made available to assist the CEO in the performance of the CEO’s functions:

                     (a)  the Public Service of the State or Territory;

                     (b)  a body, whether incorporated or not, established by or under a law of the State or Territory.

             (3)  An arrangement under subsection (2) may provide for the Commonwealth to reimburse the appropriate authority of a State or Territory with respect to the services of a person to whom the arrangement relates.

Directions of the CEO

             (4)  In assisting the CEO in the performance of the CEO’s functions, a person to whom an arrangement under subsection (1) or (2) relates is subject to the directions of the CEO.

48  Consultants

             (1)  The CEO may, on behalf of the Commonwealth, engage consultants to assist in the performance of the CEO’s functions.

             (2)  The consultants are to be engaged on the terms and conditions that the CEO determines in writing.

Division 4Special Account

49  Student Identifiers Special Account

             (1)  The Student Identifiers Special Account is established by this section.

             (2)  The Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997.

50  Credits to the Account

                   There must be credited to the Account amounts equal to the following:

                     (a)  amounts allocated by the Standing Council in accordance with the National Agreement for Skills and Workforce Development between the Commonwealth, States and Territories, as in force from time to time;

                     (b)  amounts received by the Commonwealth in connection with the performance of the CEO’s functions;

                     (c)  interest received by the Commonwealth from the investment of amounts debited from the Account;

                     (d)  amounts of any gifts given or bequests made for the purposes of the Account.

Note 1:       An Appropriation Act may contain a provision to the effect that, if any of the purposes of a Special Account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the Special Account), then amounts may be debited against the appropriation for that item and credited to that Special Account.

Note 2:       Amounts standing to the credit of the Account may be invested under section 39 of the Financial Management and Accountability Act 1997, but such investments may only be made by the Finance Minister, the Treasurer, or a delegate under section 62 or 62A of that Act.

51  Purposes of the Account

                   The purposes of the Account are as follows:

                     (a)  paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in the performance of the CEO’s functions;

                     (b)  paying any remuneration and allowances payable to any person under this Act;

                     (c)  meeting the expenses of administering the Account.

Note:          See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

Division 5Annual report

52  Annual report

             (1)  The CEO must, as soon as practicable after the end of each financial year, prepare and give to the Commonwealth Minister, for presentation to the Parliament, a report on the operations of the CEO and Agency during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

             (2)  The CEO must give a copy of the report to the Standing Council at the same time as the report is presented to the Parliament.

             (3)  If this section does not commence at the start of a financial year, the period:

                     (a)  starting at the commencement of this section; and

                     (b)  ending at the end of the first 30 June after that commencement;

is taken, for the purposes of this section, to be a financial year.

Part 5Other matters

  

53  Issue of VET qualifications etc.

             (1)  A registered training organisation must not issue either of the following to an individual unless the individual has been assigned a student identifier:

                     (a)  a VET qualification (within the meaning of the National Vocational Education and Training Regulator Act 2011);

                     (b)  a VET statement of attainment (within the meaning of that Act).

             (2)  Subsection (1) does not apply to an issue specified under subsection (3).

             (3)  The Commonwealth Minister may, by legislative instrument, specify an issue to which subsection (1) does not apply, by reference to one or more of the following:

                     (a)  the registered training organisation doing the issuing;

                     (b)  the VET qualification, or VET statement of attainment, being issued;

                     (c)  the individual to whom the VET qualification, or VET statement of attainment, is being issued.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

             (4)  Before making an instrument under subsection (3), the Commonwealth Minister must obtain the agreement of the Standing Council to the making of the instrument.

54  Saving of other laws and remedies

             (1)  This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

             (2)  Nothing in this Act limits, restricts or otherwise affects any right or remedy that a person would have had if this Act had not been enacted.

55  Disapplication of Division 4 of Part 2

             (1)  Division 4 of Part 2 does not apply to a public body of a State or Territory if a declaration made under subsection (2) is in force in relation to the body.

             (2)  The Commonwealth Minister may, in writing, declare that Division 4 of Part 2 does not apply to a public body of a State or Territory if:

                     (a)  a Minister of the State or Territory requests, by written notice, the Commonwealth Minister to make the declaration; and

                     (b)  the Commonwealth Minister is satisfied that a corresponding law of a State or Territory is in force in the State or Territory and the law applies to the body; and

                     (c)  the Standing Council agrees to the making of the declaration.

             (3)  The Commonwealth Minister may, in writing, revoke a declaration made under subsection (2) in relation to a public body of a State or Territory if:

                     (a)  a Minister of the State or Territory requests, by written notice, the Commonwealth Minister to do so; or

                     (b)  both of the following apply:

                              (i)  the Commonwealth Minister is satisfied that a corresponding law of a State or Territory is no longer in force in the State or Territory or no longer applies to the body;

                             (ii)  the Standing Council agrees to the revocation of the declaration.

             (4)  A declaration under subsection (2), and a revocation of a declaration under subsection (3), are legislative instruments, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the declaration or revocation.

56  Severability

             (1)  Without limiting its effect apart from each of the following subsections of this section, this Act also has effect as provided by that subsection.

             (2)  This Act also has the effect it would have if its operation were expressly confined to matters:

                     (a)  in relation to which the Commonwealth is under an obligation under an international agreement, including Article 17 of the International Covenant on Civil and Political Rights, done at New York on 16 December 1966; or

                     (b)  that are of international concern, including the matters dealt with in paragraphs 9, 10 and 11 of the Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data, recommended by the Council of the Organisation for Economic Co‑operation and Development on 23 September 1980.

Note 1:       The text of the Covenant is set out in Australian Treaty Series 1980 No. 23 ([1980] ATS 23). In 2013, the text of a Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Note 2:       In 2013, the text of the Guidelines was accessible through the Organisation for Economic Co‑operation and Development website (www.oecd.org).

             (3)  This Act also has the effect it would have if its operation were expressly confined to acts or omissions that occur outside Australia.

             (4)  This Act also has the effect it would have if its operation were expressly confined to entities that are corporations to which paragraph 51(xx) of the Constitution applies.

             (5)  This Act also has the effect it would have if its operation were expressly confined to acts or omissions that relate to aliens.

             (6)  This Act also has the effect it would have if its operation were expressly confined to acts or omissions done for purposes relating to census or statistics.

             (7)  This Act also has the effect it would have if its operation were expressly confined to acts done using a postal, telegraphic, telephonic or other like services.

             (8)  This Act also has the effect it would have if its operation were expressly confined to acts or omissions done in connection with the provision of benefits to students.

             (9)  This Act also has the effect it would have if its operation were expressly confined to acts or omissions that occur in a Territory.

           (10)  This Act also has the effect it would have if its operation were expressly confined to acts or omissions done in the course of trade or commerce:

                     (a)  between Australia and other countries; or

                     (b)  among the States; or

                     (c)  between a Territory and a State or another Territory.

           (11)  A term used in this section and the Constitution has the same meaning in this section as it has in the Constitution.

57  Regulations

             (1)  The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  Before the Governor‑General makes regulations under subsection (1), the Commonwealth Minister must obtain the agreement of the Standing Council to the making of the regulations.

             (3)  Despite subsection 14(2) of the Legislative Instruments Act 2003, the regulations made under subsection (1) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a matter contained in an instrument or other writing as in force or existing from time.