Education and Training Reform Amendment (Skills) Bill 2011

Introduction Print

EXPLANATORY MEMORANDUM

General

The Education and Training Reform Amendment (Skills) Bill 2011 amends the Education and Training Reform Act 2006 (the Principal Act) and the Accident Compensation Act 1985.

The Bill deals with two subjects, namely—

activities of TAFE institutes and adult education institutions outside Victoria; and

work placements of students.

The provisions of the Bill are largely arranged in the order in which the provisions being amended appear in their respective Acts. For this reason, the connection between various provisions of the Bill dealing with related subject-matter may not be readily apparent from reading the Bill. To assist the reader in understanding the various matters being dealt with by the Bill, an explanation of these matters arranged by topic is set out below, followed by clause notes.

Activities of TAFE institutes and adult education institutions outside Victoria

The first matter relates to the activities outside Victoria of the State's 14 TAFE institutes and 2 adult education institutions. The Education and Training Reform Act 2006 sought to authorise these institutions to operate outside Victoria. Until recently, it had been understood that the Act did in fact authorise such activity. Recently, however, doubts have arisen whether the powers and functions that the Act confers on the institutions were expressed in a way that is broad enough to authorise all their activities outside of the State.

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This Bill will therefore amend the provisions that set out the powers and functions of TAFE institutes and adult education institutions to ensure that they can carry out their legitimate functions both within and outside Victoria.

The Bill also validates their past activities outside Victoria, so that they will not be invalid only for that reason.

Work placements of students

The second matter relates to the work placements that students undertake as part of accredited courses at the senior secondary level, or in the vocational education and training and further education sectors.

These placements are authorised and regulated under Part 5.4 of Education and Training Reform Act 2006. In addition, under section 5F of the Accident Compensation Act 1985, students and their host employers are insured under WorkCover in respect of injuries and illnesses that may arise from or in the course of these placements.

Recent legislative changes to the manner in which the relevant courses and their providers are regulated have caused unintended gaps in the legislative framework governing these placements. It has also been discovered that there were already some gaps in the coverage of the legislation relating to placements. This Bill seeks to close those gaps for the future and to validate past placements so that students and their host employers are not disadvantaged.

What are work placements?

There are three different kinds of student work placements, namely—

Work experience placements undertaken by senior secondary students. These short placements are part of a student's general secondary education. They provide experience of workplace life but are not intended to develop specific job skills. These placements are covered by Division 1 of Part 5.4 of the Principal Act.

Practical placements undertaken by students in post-secondary education courses provided by "TAFE providers" as defined in Part 5.4. These placements are intended to develop job-related skills in the area of the particular course. They vary widely in duration and content from course to course. These placements are covered by Division 2 of Part 5.4 of the Principal Act.

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Structured workplace learning arrangements for senior secondary students undertaking vocational education and training courses as part of their secondary education. They are similar to practical placements in content and purpose, but differ in that they are undertaken by students of schools and other secondary providers rather than TAFE providers. These placements are covered by Division 1 of Part 5.4 of the Principal Act.

What are the gaps in the placements legislation and how are they being mended?

Broadly speaking, the placements being authorised and/or validated by this Bill fall into the following categories—

practical placements of students of vocational education and training providers registered by the Australian Skills Quality Agency under section 17 of the National Vocational Education and Training Regulator Act 2011 (Cwth) (the Commonwealth NVR Act) since 1 July 2011;

practical placements of students of vocational education and training providers registered by the Victorian Registration and Qualifications Authority (VRQA) since 1 April 2011;

practical placements of students of vocational education and training providers registered by inter-State regulators since 1 April 2011;

practical placements of vocational education and training students who were not above "compulsory school age" at the time of the placement. This means students who were, at the time of the placement, younger than 16 or, since 1 January 2010, younger than 17;

work experience and structured workplace learning placements of senior secondary students who are undertaking their education with a secondary education provider that is not a school.

In addition, the Accident Compensation Act 1985 will be amended so that students undertaking these placements, or who have undertaken them in the past, will be eligible for WorkCover.

The issues that have arisen in relation to these various kinds of placements are outlined in more detail below, together with an explanation of the amendments and validations that are proposed.

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Practical placements of students of Commonwealth-registered providers

From 1 July 2011, a new national regulator, the Australian Skills Quality Agency (ASQA) was established by the Commonwealth NVR Act.

Since that date, all providers of vocational education and training must be registered with ASQA if they have any overseas students, or if they operate in jurisdictions other than Victoria or Western Australia. ASQA regulates about half of all vocational education and training providers in Victoria, including all 14 Victorian TAFE institutes.

While students of ASQA-registered providers that operate in Victoria undertake placements, they are not covered by the placements legislation because they are not included in the definition of TAFE provider. This will be corrected by amendments to be made by Part 3 of the Bill.

As currently worded, however, section 9 the NVR Act provides that an ASQA-registered provider does not have to comply with a Victorian law that regulates vocational education and training. This probably means that the placement provisions of the Principal Act cannot apply to placements of students of ASQA-registered providers.

On 1 November 2011, a Bill passed through the Commonwealth Parliament that will alter section 9 of the NVR Act which enables regulations under that Act to specify State laws that regulate vocational education and training providers will be binding on ASQA-registered providers.

In anticipation of such a regulation being made, clause 14 of the Bill will amend the Principal Act to extend the practical placement provisions of Part 5.4 of that Act to ASQA-registered providers.

This amendment has no fixed commencement date, nor a deadline for its commencement. This is because the provision cannot commence unless and until a regulation is made under the NVR Act to specify the amended Principal Act as a State law that may apply to ASQA-registered providers. In the absence of such a regulation, the proposed provision would be inoperative because of section 9 of the NVR Act and section 109 of the Commonwealth Constitution, which provides for Commonwealth laws to prevail over inconsistent laws of a State.

If and when an appropriate Commonwealth regulation is made, the provision may then be proclaimed to commence, and will operate as permitted by the Commonwealth regulation.

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A related provision is clause 14 of the Bill, which would validate practical placements since 1 July of students of TAFE institutes and other vocational education and training providers operating in Victoria under ASQA registration. Further, clause 17 of the Bill will amend the Accident Compensation Act 1985 so as to provide WorkCover eligibility for students and host employers from 1 July 2011 and on an ongoing basis. The commencement of these provisions must also await the making of a Commonwealth regulation.

Practical placements of students of State-registered providers

The registration provision for TAFE providers was altered on 1 April 2011, but the cross-reference to it in the practical placement provisions was not changed at the same time.

These amendments were made by the Education and Training Reform Amendment (Skills) Act 2010 (the 2010 Act). Prior to 1 April 2011, the VRQA registered TAFE providers under section 4.3.10 of the Principal Act. Since that date, they are registered under section 4.3.16. However, the definition of TAFE provider in Part 5.4 still describes them as registered under section 4.3.10. The cross-reference was not updated by the 2010 Act.

Section 17 of the Interpretation of Legislation Act 1984 already requires the definition to be read as referring to section 4.3.16 rather than the superseded section 4.3.10. However, in the interests of certainty and clarity, it is proposed to directly amend the text so that the correct cross-reference is made explicit. To this end, the new definition of TAFE provider, to be inserted by clause 10, will correct the cross-reference, with effect back to 1 April 2011. See paragraph (a) of that definition.

Although this textual change is retrospective to 1 April, for the reasons given above, this will clarify rather than alter the substantive effect of the law between that date and the date the amendment takes effect.

Clause 11 inserts a related transitional provision (proposed new section 6.1.20), which bridges the change between registration provisions and ensure that this does not affect the continuity of placements' validity. This transitional provision is also backdated to 1 April 2011, in the interests of certainty and clarity.

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Practical placements of students of providers registered inter-State

Under mutual recognition arrangements, a provider of vocational education and training that is registered by the regulator of one State or Territory may operate in other States or Territories, with all jurisdictions applying common standards for provider registration. In Victoria, section 4.3.14 of the Principal Act deems providers registered inter-State to be registered in Victoria so that they are able to operate here.

These mutual recognition arrangements have been largely, but not completely, superseded since 1 July 2011 by the establishment of a Commonwealth regulator. But, prior to that date, providers registered in other States did operate in Victoria. Further, Western Australia and Victoria continue to register some providers at the State level, and Western Australian registered providers may operate in Victoria. The Victorian students of these providers, past or present, undertake practical placements in Victoria and need to be covered by Victorian WorkCover.

However, the current definition of TAFE provider in the practical placement provisions (in Part 5.4 of the Principal Act) does not refer to inter-State registered providers operating in Victoria. It is not certain that section 4.3.14, which enables interstate providers to operate in Victoria, brings those providers and their students within the scope of the placement provisions.

To overcome this, a new definition of TAFE provider will be inserted by clause 10. Paragraph (b) of this definition includes an explicit reference to inter-State registered providers which operate in Victoria under section 4.3.14. This provision is also backdated to 1 April 2011, so that students of inter-State providers operating in Victoria will be covered in respect of past placements back to that date.

Any placements that were made prior to 1 April 2011 will be validated (as from that date) by new section 6.1.21, which is also to be inserted by clause 11. WorkCover will be extended to the students and host employers who participated in such placements in the past by the amendments to be made to the Accident Compensation Act 1985 by clause 15 of the Bill.

Practical placements of students who are not above compulsory school age

"Compulsory school age" is defined in section 1.1.3(1) of the Principal Act as not less than 6 nor more than 17 years of age. That is, a person is of "compulsory school age" if they have passed their sixth birthday but have not yet reached their seventeenth birthday. Until 1 January 2010, the upper end of the compulsory school age range was a person's sixteenth birthday.

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Generally speaking, a child of compulsory school age must attend school—see section 2.1.1 of the Principal Act. Sometimes, however, persons under 17 years of age cease their secondary education and proceed to post-secondary education, such as a university or TAFE course. This is usually because they have completed a senior secondary certificate and proceeded to the next stage of their education, or because they have a reasonable excuse for not attending school pursuant to section 2.1.3 of the Principal Act, or because they have been exempted from attending school pursuant to section 2.1.5 of the Principal Act so that they can begin an apprenticeship or vocational education and training.

If a student in this situation is undertaking a vocational education and training course, then it is probable that they will need to undertake a practical placement as part of that course.

However, recently, it became apparent that there may be a gap in the legislation's coverage for practical placements of post-secondary students who are under 17 years of age. The problem arises because of the way "post-secondary student" is defined in section 5.4.13 of the Principal Act, combined with the way "post-secondary education" is defined in 1.1.3. "Post-secondary education" is defined by section 1.1.3 as education of persons who are beyond compulsory school age. Consequently, there is some doubt that whether a person under 17 years of age enrolled in a vocational education and training course can be said to be undertaking a "post-secondary education course" for the purposes of the practical placement provisions of Part 5.4.

To overcome this problem, clause 9 of the Bill will amend the definition of "post-secondary student" in section 5.4.13 of the Principal Act. This will clarify that a student under 17 years of age can be a post-secondary student if the course in which they are enrolled is a post-secondary education course. That is, whether the person is a "post-secondary student" or not will depend on the nature of the course in which they are enrolled, and not the age of the student.

The practical effect of this change is that persons under 17 years of age enrolled in vocational education and training courses at TAFE institutes and other vocational education and training providers will be "post-secondary students" who are eligible to undertake practical placements.

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A related provision is proposed new section 6.1.25 (to be inserted by clause 12) which will validate past practical placements of compulsory school age students of vocational education and training providers. This means students who were under the age of 16 in respect of placements prior to 1 January 2010, or under 17 years of age in respect of placements since that date.

Further, clause 16 will amend the Accident Compensation Act 1985 so that WorkCover extends to the students and their host employers in respect of past placements.

Placements of senior secondary students of providers that are not schools

Division 1 of Part 5.4 of the Principal Act deals with work experience and structured workplace learning placements of senior secondary students. Currently, the work experience provisions apply mainly to students of schools, but its application is extended to students of TAFE institutes (and University TAFE Divisions) by operation of section 5.4.2.

There appear to be three gaps in the current legislative scheme for these placements.

First, not all secondary education providers are schools. As currently written, Division 1 applies to schools and TAFE institutes, but not other secondary education providers registered by the Victorian Registration and Qualifications Authority (VRQA) under section 4.3.10.

For this reason, section 5.4.2 will be substituted by clause 8 of this Bill. The new section 5.4.2 will apply the work experience and structured workplace learning provisions to all providers of senior secondary courses. All secondary education providers are registered under section 4.3.10 of the Act for that purpose, so the section will now refer to providers registered under that section. Work experience placements will be dealt with under subsection (1) of the substituted section 5.4.2, and structured workplace learning placements will be dealt with under subsection (2).

A related amendment is made by clause 15(2) of the Bill, which will amend section 5F of the Accident Compensation Act 1985 so that all senior secondary students undertaking placements will be "workers" for the purposes of that Act and eligible for compensation if they were enrolled with a senior secondary provider registered under section 4.3.10 of Education and Training Reform Act 2006.

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The second gap is that, while the present section 5.4.2 says that the Division applies to TAFE institutes, it does not deal with all the details necessary to make that application work. In particular, Division 1 deals with the responsibilities of schools, school principals and school teachers in respect of placements. The current section 5.4.2 does not make it clear who will be responsible for discharging these responsibilities in relation to placements of students of TAFE institutes and secondary education providers that are not schools.

The substituted section 5.4.2 will correct this problem by spelling out who will have the responsibilities of a school, school principal and school teacher in respect of placements of students of non-school providers.

The third gap is in the way the students of non-school providers themselves are described. The current section 5.4.2 refers to students who are "in a course of study that is or is equivalent to year 11 or year 12 of secondary education".

Work experience placements of students of non-school providers that have occurred in the past will be validated by new section 6.1.23, which is to be inserted by clause 12. Similarly, proposed new section 6.1.24 (also to be inserted by clause 12) will validate past structured workplace learning placements. Further, clause 16 will amend section 5F of the Accident Compensation Act 1985 so that students who undertook such placements in the past or who undertake them in the future will be "workers" who may be eligible for WorkCover.

WorkCover coverage of placements

Under the Accident Compensation Act 1985, a "worker" as defined in that Act may be eligible for WorkCover in respect of injuries or illness that arise out of or in the course of their employment. Until 1 July 2011, "workers" was defined by that Act to include students who undertook placements under—

Division 1—that is, work experience or structured workplace learning; or

Division 2—that is, practical placements—

of Part 5.4 of the Education and Training Reform Act 2006.

However, on 1 July 2011, amendments to the Accident Compensation Act 1985 inserted a new section 5F, which deals with the position under that Act of students on placements. The new section covers work experience and practical placements, but omitted structured workplace learning placements.

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This omission will be corrected by clause 15(1) of the Bill. This clause will amend section 5F so that students on structured workplace learning placements will also be "workers" for the purposes of the Accident Compensation Act. This correction will be retrospective to 1 July 2011, so that no students are disadvantaged by their omission from the new section, which commenced operation on that date.

Validation and retrospectivity

Most of the provisions of this Bill are not retrospective. While the validation provisions may confer benefits in relation to events that occurred in the past, it should be noted that these provisions operate for the future. It should also be noted that the provisions are of a beneficial nature.

The few provisions that are technically retrospective are intended to clarify the application and operation of the law.

Clause Notes

Clause 1 sets out the main purposes of the Bill.

Clause 2 provides for the commencement of the Act.

Most of the Act comes into operation on the day after the day on which the Act receives the Royal Assent. The exceptions are explained below.

Clauses 10 and 11 are taken to have come into operation on 1 April 2011, so as to correct omissions in amendments made to the Principal Act on that date by the Education and Training Reform Amendment (Skills) Act 2010 and related matters. These amendments are beneficial in nature, in that they ensure the validity of past placements.

Part 3 and clause 17 are to come into operation on a date to be proclaimed. No forced commencement or forced repeal of these provisions is included in the Bill. The reason for this is as follows.

The purpose of these provisions is to enable students of providers registered under the Commonwealth NVR Act to undertake placements under the Principal Act and to be eligible for WorkCover under the Accident Compensation Act 1985. However, that Commonwealth Act presently provides that providers registered under it are not required to comply with Victorian laws on vocational education and training. This would, at present, prevent the amendments to be made by the Part 3 from

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having full effect. Clause 17 will make related amendments to the Accident Compensation Act 1985, and must commence at the same time as Part 3.

On 1 November 2011, a National Vocational Education and Training Regulator Amendment Bill 2011 passed both Houses of the Commonwealth Parliament. Under amendments proposed by that Bill, regulations may, with the consent of the Ministerial Council, be made that specify a State vocational education and training law. A specified State vocational education and training law will be binding on Commonwealth-registered vocational education and training providers.

Once the Commonwealth Act has been amended, it is intended to seek Ministerial Council approval for a Commonwealth regulation to be made that specifies the amendments to be made by Part 3 of this Bill. This will enable students of Commonwealth-registered providers to undertake practical placements, and will validate all such placements since 1 July 2011.

For these reasons, the timing of the commencement of Part 3 (or whether it commences at all) will depend on Ministerial Council consent and the making of Commonwealth regulations. If and when this consent is obtained, and the required regulations are made, Part 3 will be proclaimed so as to commence at the same time as those regulations.

For the reasons explained above, the amendments to be made to the Accident Compensation Act 1985 by clause 17 need to commence at the same time as Part 3.

Clause 15 is taken to have commenced on 1 July 2007. This is to amend section 5F of the Accident Compensation Act 1985, which commenced on that day, to correct the omission of structured workplace learning placements from that section.

The backdated provision is beneficial in nature, and is designed to ensure that students who have undertaken structured workplace learning placements since 1 July 2011 are not disadvantaged by its inadvertent omission from section 5F.

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Clause 3 inserts a new subsection (2A) into section 3.1.13 of the Principal Act.

The effect of the new subsection will be to amend the functions statement of boards of TAFE institutes to clarify that they may operate outside Victoria.

It should be noted that section 3.1.14(3) already provides that TAFE institute boards may exercise their powers outside Victoria. This amendment clarifies that they may also perform their functions outside Victoria.

The reason for the amendment is to ensure that TAFE institutes are able to continue to operate outside Victoria and Australia. Until recently, it had been understood that that section 3.1.14(3) did confer this power. The amendment clarifies the matter and avoids a technical argument that, although powers can be exercised outside Victoria, they may only be exercised for the purposes of functions inside Victoria.

A related provision is new section 6.1.22 (to be inserted by clause 12), which will validate past activities of TAFE institute boards outside Victoria.

Clause 4 substitutes subsection (3) of section 3.1.14 of the Principal Act.

The existing subsection (3) already provides that the boards of TAFE institutes may exercise their powers outside Victoria. The substituted subsection will essentially have the same effect, but it is being re-expressed for consistency with corresponding provisions in university Acts and with the proposed new section 3.3.30(2) (to be inserted by clause 5) in relation to adult education institutions.

Clause 5 amends section 3.3.30 of the Principal Act to clarify that adult education institutions may exercise all of their functions outside Victoria.

The adult education institutions are the Adult Multicultural Education Services (AMES) and the Centre for Adult Education (CAE), which are established by sections 3.3.26 and 3.3.27 of the Principal Act respectively.

Adult education institutions are already authorised to perform some (but not all) of their functions outside Victoria. In particular, paragraph (g) of section 3.3.30(1) authorises activity outside Victoria in relation to the "development and

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provision of adult, community, further education, vocational education and training, employment and other associated programs and services".

Clause 5 will broaden out this authorisation, so that adult education institutions will be authorised to carry out all of their functions under section 3.3.30 outside (as well as inside) Victoria, and not only the functions specified in subsection (1)(g).

Clause 6 inserts a new subsection (3) into section 3.3.31 of the Principal Act.

This will confer power on adult education institutions to exercise their powers outside Victoria. In combination with the amendments to be made by clause 5, this will ensure that, like boards of TAFE institute, the boards of adult education institutions have full authority to operate outside the State.

A related provision is new section 6.1.22 (to be inserted by clause 12), which will validate past activities of boards of adult education institutions outside Victoria.

Clause 7 amends section 5.2.1 of the Principal Act. The amendment is related to the amendments made by clauses 3 to 6 in relation to the out-of-State activities of TAFE institutes and adult education institutions.

The amendment widens the existing general power of the Minister to require information from Victorian educational institutions, so that it includes the power to require information from the boards of TAFE institutes and adult education institutions in relation to their activities outside Victoria.

These are public entities of the State Government, and it is necessary for the Minister to be able to gather information about their activities. As presently framed, section 5.2.1 may not have extended to gathering information about activities outside the State.

Clause 8 substitutes section 5.4.2 of the Principal Act, which deals with the application of Division 1 of Part 5.4 of the Principal Act.

Division 1 of Part 5.4 establishes the legislative framework for work experience and structured workplace learning placements for senior secondary students in schools. Section 5.4.2 extends

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the operation of Division 1 of Part 5.4 to TAFE institutes, including university TAFE Divisions, as well as schools.

The substituted section 5.4.2 will—

Extend the operation of the Division to all providers of senior secondary education that are registered under section 4.3.10 by the VRQA, not only schools and TAFE institutes. In this regard, it should be noted that not all providers of secondary education are schools.

Clarify, in relation to non-school providers, who will have the usual functions and responsibilities of a school, school principal and school teacher for the purposes of the Division.

Clarify that the Division applies to all students in an "accredited senior secondary course" (as that term is defined in section 4.1.1 of the Principal Act), and not only in a "course of study that is or is equivalent to year 11 or year 12 of secondary education". In this regard, it should be noted that not all senior secondary courses that involve placements are conducted in years 11 or 12.

The effect of these amendments is to clarify and extend the coverage of the operation of work experience and structured workplace learning placements, to ensure that they cover all senior secondary students who undertake such placements.

Subsection (1) of the substituted section 5.4.2 does all this with respect to current and future work experience placements. A related provision is new section 6.1.23, which is to be inserted by clause 12, and which will validate past work experience placements as if the new section 5.4.2(1) had been in place at the relevant time. Further, clause 16(1) will amend section 5F of the Accident Compensation Act 1985 to ensure WorkCover applies to all these placements.

Similarly, subsection (2) deals with current and future structured workplace learning placements. New section 6.1.24 (to be inserted by clause 12) will validate past structured workplace learning placements as if subsection (2) had been in operation at the relevant times, and clause 16 will ensure these placements come under WorkCover.

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Clause 9 amends the definition of post-secondary student in section 5.4.13 of the Principal Act.

Section 5.4.13 sits in Division 2 of Part 5.4, which deals with practical placements of vocational education and training students. Under that section 5.4.14, a post-secondary student of a TAFE provider may undertake a practical placement for work experience and training related to their course. Practical placements are oriented to skills training in a particular vocation.

Some vocational education and training students of TAFE providers are not above the years of compulsory school age. That is, some of the students are below the age of 17 (or until 1 January 2010, were below the age of 16). This can occur where a student completes a senior secondary certificate while still of compulsory school age, or because they have a reasonable excuse for not attending school pursuant to section 2.1.3 of the Principal Act, or because they have been exempted from attending school pursuant to section 2.1.5 to begin an apprenticeship or a post secondary course.

As the Act is presently framed, it could be argued that a student whose age falls within the compulsory school age years cannot be a "post-secondary student". This is because post-secondary education is defined by section 1.1.3(1) as education of persons beyond compulsory school age. If this interpretation is correct, then these students are not, and have not been, eligible to undertake practical placements under Division 2 of Part 5.4.

To overcome this problem, clause 9 will amend the definition of post-secondary student in section 5.4.13 to clarify that it means any student who is undertaking a course that is post-secondary in nature, irrespective of the age of the student. This will ensure that these students may undertake practical placements.

A related provision is new section 6.1.25 (to be inserted by clause 12), which will validate past practical placements as if the amendments being made by clause 9 had been in operation at the relevant time. Similarly, clause 16(1) will amend section 5F of the Accident Compensation Act 1985 so that these placements come under WorkCover.

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Clause 10 substitutes the definition of TAFE provider in section 5.4.13 of the Principal Act, with effect from 1 April 2011. This has two effects.

First, it corrects a cross-reference that should have been made by the Education and Training Reform Amendment (Skills) Act 2010. Under amendments made by that Act, vocational education and training and further education providers are, since 1 April 2011, registered by the VRQA under section 4.3.16 of the Principal Act. Before that time, they had been registered under section 4.3.10, along with secondary providers. In other words, the 2010 Act split provider registrations between section 4.3.10 (schools and other secondary education providers) and 4.3.16 (vocational education and training and further education providers).

Consequential on that amendment, the definition of TAFE provider in section 5.4.13 should have been amended to refer to providers registered under section 4.3.16. This amendment was not made, and the definition still refers (incorrectly) to registration under section 4.3.10. Despite this, as a matter of law, the current definition must be read as if it did refer to section 4.3.16; this is the effect of section 17 of the Interpretation of Legislation Act 1984 which requires a reference to a superseded provision to be read as referring to the provision that replaced it.

However, it is desirable to realign the text of the Act with its legal meaning, in the interests of clarity and certainty. For this reason, paragraph (a) of the new definition corrects the cross-reference back to the date on which this should have been done, namely 1 April 2011.

A related provision is new section 6.1.20, which is to be inserted by clause 11, also with effect from 1 April 2011. This is a transitional provision that also should have been inserted by the Education and Training Reform Amendment (Skills) Act 2010. The new section provides that a vocational education and training or further education provider that had been registered under section 4.3.10 before 1 April 2011 must be taken to have been registered under section 4.3.16 from that date onwards. Combined with paragraph (a) of the new definition, this will ensure that practical placements of students of these providers since 1 April 2011 were valid and came under WorkCover.

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The second effect of the new definition of TAFE provider is to regularise, for the purposes of practical placements under Division 2 of Part 5.4, the position of vocational education and training providers that are (or were) registered by vocational education and training regulators of other States and Territories.

Under mutual recognition arrangements that applied before the establishment of the ASQA on 1 July 2011, a vocational education and training provider registered in any State or Territory could operate in any other State or Territory. Provider registration was handled by all regulators under a common set of agreed standards. To this end, section 4.3.14 of the Principal Act provides that a provider registered interstate is deemed to be registered in Victoria as well.

However, it is not certain that the deemed registration of providers registered inter-State under section 4.3.14 also authorised those providers' students to undertake practical placements in Victoria under Part 5.4.

For this reason, paragraph (b) of the new definition of TAFE provider will include a reference to interstate registered providers, back to 1 April 2011 when the 2010 Act commenced.

A related validation provision for past placements is new section 6.1.21, which is to be inserted by clause 11. Although most States and Territories no longer regulate vocational education and training providers, they all did so until ASQA took over this role in many jurisdictions on 1 July 2011. Western Australia and Victoria continue to regulate some vocational education and training providers.

To ensure the validity of past practical placements undertaken by students of vocational education and training providers that are, or were, registered inter-State, new section 6.1.21 will validate those placements as if the amendments to be made by clause 10 had been in place at the relevant time. Complementing this, clause 15(2) will insert a new paragraph (ac) into section 5F(1) of the Accident Compensation Act 1985 so these past placements come under WorkCover.

Note that the definition of TAFE provider is to be substituted again at a later time by clause 13 of the Bill.

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Clause 11 inserts new sections 6.1.20 and 6.1.21 into the Principal Act with effect from 1 April 2011.

New section 6.1.20 is a transitional provision related to amendments that were made to the Principal Act by the Education and Training Reform Amendment (Skills) Act 2010 on 1 April 2010. From that date, vocational education and training and further education providers are registered under section 4.3.16 and not under section 4.3.10 as they previously had been. New section 6.1.20 provides that vocational education and training and further education providers registered under section 4.3.10 prior to 1 April 2011 must be taken to be registered under section 4.3.16 from that date onwards. See the notes to clause 10 for further explanation.

New section 6.1.21 is a validation provision. It validates practical placements that had been undertaken prior to 1 April 2011 by students of vocational education and training providers that were, at the time of the placement—

registered by a vocational education and training regulator of another State or Territory; and

operating in Victoria under a deemed registration in this State under section 4.3.14 of the Principal Act.

See the notes to clause 10 for further explanation.

Clause 12 inserts new sections 6.1.22 to 6.1.25 into the Principal Act with effect from the day after this Bill receives Royal Assent.

New section 6.1.22 is a validation provision. It validates past actions of the boards of TAFE institutes and adult education institutions in respect of past activities outside Victoria, as if the amendments to be made by clauses 3 and 4 of this Bill had been in effect at the relevant times. See the General section of this memorandum and the notes to clause 3 for further explanation.

New section 6.1.23 validates past work experience arrangements for senior secondary students, as if section 5.4.2(1) as substituted by clause 8 of this Bill had been in effect at the relevant time. See the General section of this memorandum and the notes to clause 8 for further explanation.

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New section 6.1.24 validates past structured workplace learning arrangements for senior secondary students, as if section 5.4.2(2) as substituted by clause 8 of this Bill had been in effect at the relevant time. See the General section of this memorandum and the notes to clause 8 for further explanation.

New section 6.1.25 is a validation provision. It validates practical placements of vocational education and training students of TAFE providers even though the student was not above compulsory school age at the time, as if the amendments made by clause 9 of this Bill had been in effect at the relevant times. See the General section of this memorandum and the notes to clause 9 for further explanation.

Clause 13 substitutes the definition of TAFE provider in section 5.4.13 of the Principal Act, with effect on a day to be proclaimed. Note that the definition will already have been substituted by operation of clause 10 of this Bill.

This will add a new paragraph (c) to the definition. Paragraph (c) will extend the practical placement provisions of Division 2 of Part 5.4 of the Principal Act to vocational education and training providers registered under section 17 of the Commonwealth NVR Act.

Since 1 July 2011, a vocational education and training provider operating in Victoria must register under the Commonwealth Act if it has (or proposes to have) any overseas students, or if it also operates in any part of Australia other than Victoria and Western Australia. Approximately half of vocational education and training providers operating in Victoria are now registered by the Australian Skills Quality Agency (ASQA) under the Commonwealth Act, including all 14 Victorian TAFE institutes.

In practice, students of these providers undertake practical placements as part of their courses, as before they came under Commonwealth regulation. However, ASQA-registered providers are not authorised to arrange placements under the Principal Act. As a consequence, their students no longer come under the State's WorkCover scheme while undertaking practical placements.

To overcome this, clause 13 amends the definition of TAFE provider so that ASQA-registered providers come within the

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scope of Part 5.4 of the Principal Act and can arrange practical placements that come under WorkCover.

There is, however, a constitutional issue and this affects the timing of the amendment's commencement.

Under section 109 of the Commonwealth Constitution, if a State law is inconsistent with a Commonwealth law then the Commonwealth law prevails and the State law is inoperative to the extent of the inconsistency. Section 9 of the Commonwealth NVR Act provides that an ASQA-registered provider does not have to comply with a State vocational education and training law. Consequently, the amendments to be made by clause 13 cannot take effect unless and until that inconsistency is removed.

A Bill that passed both Houses of the Commonwealth Parliament on 1 November will enable regulations to be made, with the consent of the Ministerial Council, which specify a State vocational education and training law. An ASQA-registered provider will be bound by a State law specified in this way.

There is no forced commencement date for clause 13. Whether and when it takes effect depends on the making of Commonwealth regulations that allow the Principal Act's practical placements to operate with respect to ASQA-registered providers.

See the General section of this memorandum for further explanation.

Clause 14 inserts a new section 6.1.26 into the Principal Act.

New section 6.1.26 will validate practical placements of vocational education and training students of ASQA-registered providers since 1 July 2011, as if the amendments made by clause 13 of this Bill had been in effect at the relevant times. See the General section of this memorandum and the notes to clause 13 for further explanation.

As with the amendments proposed by clause 13, the commencement of clause 13 is contingent upon the making of Commonwealth regulations that enable the Principal Act to apply with respect to ASQA-registered providers in relation to practical placements. If the clause were commenced before then, it would be inoperative under section 109 of the Commonwealth

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Constitution. For these reasons, no forced commencement date has been set in respect of clause 14.

Clause 15 amends section 5F of the Accident Compensation Act 1985, which deals with the application of WorkCover to students undertaking placements.

These amendments are taken to have come into operation on 1 July 2011, the date on which section 5F itself commenced.

Subclause (1) inserts a reference to structured workplace learning arrangements into section 5F(1)(a).

The effect of this amendment will be that students who undertake these placements will continue to come under WorkCover. Structured workplace learning arrangements came under the Accident Compensation Act 1985 prior to its amendment on 1 July, and the backdated amendment ensures that these placements are not invalidated by an inadvertent omission of a reference to them in section 5F. See the General section of this memorandum for further explanation.

Subclause (2) inserts new paragraphs (ab) and (ac) into section 5F(1) of the Accident Compensation Act 1985.

New paragraph (ab) will bring all placements of senior secondary students at TAFE institutes, or other non-school providers of secondary education, under WorkCover. See the General section of this memorandum and the notes on clauses 8 and 12 of this Bill for further explanation.

Subclause (3) substitutes paragraph (a) of section 5F(2)(a) of the Accident Compensation Act 1985. The effect of this amendment will be that, where a new group of student placements will come under WorkCover as a result of the amendments made by this Bill, the Department of Education and Early Childhood Development will be deemed to be the employer for the purposes of paying WorkCover contributions in respect of those placements.

Note that section 5F(2)(a) of the Accident Compensation Act 1985 will be amended subsequently by clauses 16(2) and 17(2) of this Bill.

Clause 16 amends section 5F of the Accident Compensation Act 1985, with effect from the day after this Bill receives the Royal Assent.

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Subclause (1) will insert a new paragraph (ba) into section 5F(1).

The effect of this amendment will be that students who undertook a past placement that is validated by new sections 6.1.23, 6.1.24 or 6.1.25 (as inserted by clause 12 of this Bill) will be "workers" for the purposes of the Accident Compensation Act and will come under WorkCover. See the General section of this memorandum and the notes on clause 8 for further explanation.

Subclause (2) will amend section 5F(2)(a) of the Accident Compensation Act 1985.

The effect of this amendment will be that the Department of Education and Early Childhood Development will be deemed to be the employer of the students under the validated past placements mentioned in relation to subclause (1) above.

Clause 17 amends section 5F of the Accident Compensation Act 1985, with effect on a day to be proclaimed.

This covers practical placements of students of ASQA-registered providers in the period since the establishment of the Commonwealth regulatory scheme under the Commonwealth NVR Act on 1 July 2011. See the General section of this memorandum and the notes on clause 14 for further explanation. For the reasons explained there, this provision cannot commence unless and until the necessary Commonwealth regulations are made.

Subclause (1) will insert a new paragraph (bb) into section 5F(1) of the Accident Compensation Act 1985.

The effect of this amendment will be that students who undertook a past placement that is validated by new section 6.1.26 (as inserted by clause 14 of this Bill) will be "workers" for the purposes of the Accident Compensation Act and will come under WorkCover.

Subclause (2) will amend section 5F(2)(a) of the Accident Compensation Act 1985.

The effect of this amendment will be that the Department of Education and Early Childhood Development will be deemed to be the employer of the students under the validated past placements mentioned in relation to subclause (1) above.

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Clause 18 provides for the automatic repeal of the Act on the first anniversary of the day all of its provisions are in operation. The repeal of the Act will not affect in any way the continuing operation of the amendments made by the Act—see section 15(1) of the Interpretation of Legislation Act 1984.

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