Tasmanian Assessment, Standards and Certification Act 2003 (Tas)

Tasmanian Assessment, Standards and Certification Act 2003 An Act to create the Tasmanian Assessment, Standards and Certification Board, to provide for the development and management of qualification processes, to abolish certain qualifications bodies, to repeal the Universities Registration Act 1995 and related Acts, to amend certain Acts and for related purposes [Royal Assent 17 November 2003] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Tasmanian Assessment, Standards and Certification Act 2003 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – accredited course means an accredited senior secondary course, accredited higher education course or accredited other education course; accredited education program means an education program that is accredited under section 55ZU ; accredited higher education course means a course that is accredited under section 36 or by a self-accrediting higher education provider; accredited other education course means a course that is accredited under section 55ZI ; accredited senior secondary course means a course that has been accredited under section 26 ; accredited training course has the same meaning as "VET course" in the National Vocational Education and Training Regulator Act 2011 of the Commonwealth; amend includes – (a) omit matter; and (b) insert or add matter; and (c) omit matter and substitute other matter; approval certificate means an approval certificate issued under section 55D ; approved overseas higher education course means a higher education course approved under section 55B(5)(b) ; approved overseas higher education provider means an overseas higher education institution approved under section 55B(1)(a) as an approved overseas higher education provider; approved overseas higher education qualification means a qualification approved under section 55B(5)(c) ; approved qualification means – (a) a qualification for an accredited senior secondary course determined under section 26(4)(b) ; or (b) a qualification for an examination or assessment of senior secondary education determined under section 33C(b) ; or (c) a higher education award for an accredited higher education course determined under section 36(3) ; or (d) a qualification for an approved overseas higher education course approved under section 55B(5)(c) ; or (e) a qualification for a higher education course provided by a self-accrediting higher education provider determined by that provider under section 55Z ; or (f) a qualification for an accredited other education course determined under section 55ZI(3) ; or (g) a qualification for an examination or assessment of other education determined under section 55ZR(b) ; or (h) a qualification for an accredited education program determined under section 55ZU(5) ; assessment recommendation means the recommendation made under section 55ZZR by the Board to the Minister as to whether it is appropriate to establish a new university; Australian Accounting Standards means Statements of Accounting Standards issued jointly by the National Councils of the Australian Society of Certified Practising Accountants and the Institute of Chartered Accountants in Australia or their successors; Australian Qualifications Framework means the policy of that name, defining all qualifications recognised nationally in post-compulsory education and training within Australia, endorsed by the Ministerial Council on Education, Employment, Training and Youth Affairs so as to commence on 12 January 1995, as amended from time to time; Australian university has the same meaning as in the National Protocols for Higher Education Approval Processes; authorised officer means a person appointed under section 19 to be an authorised officer; Board means the Tasmanian Assessment, Standards and Certification Board established by section 7 ; certificate of self-accrediting status means a certificate of self-accrediting status issued under section 55Q ; committee means a committee established under section 20 ; corresponding law means a law of the Commonwealth, another State or a Territory that provides for the accreditation, registration, licensing, approval or other recognition of any one or more of the following: (a) senior secondary courses; (b) higher education courses; (c) other education courses; (d) education programs; (e) higher education providers; (f) providers of education programs to overseas students; course means – (a) a senior secondary course; or (b) an accredited training course; or (c) a higher education course; or (d) an approved overseas higher education course; or (e) an accredited other education course – which includes one or more subjects, syllabuses or programs of study or training leading to the conferral or issue of a particular qualification; education program means – (a) an accredited course; or (b) an accredited training course; or (c) any other instruction, training or prescribed means of education, whether given as a course of study or otherwise; exempt university means – (a) a university; or (b) another provider of higher education; or (c) another person – referred to in section 5 ; externally provided distance course means a course provided to a student situated in Tasmania if – (a) the course is entirely provided by means that do not include teaching in person; and (b) while the person is providing the course, the person is not present in Tasmania, and does not have any employees or business premises in Tasmania, for the purposes of providing that course; field of study has the same meaning as in the National Protocols for Higher Education Approval Processes; formal education means education that – (a) is delivered in a structured program that if successfully completed will result in the person obtaining a qualification; or (b) will result in the person obtaining a qualification if – (i) the attainment of the education is successfully demonstrated by that person in an examination or other assessment conducted by another person, other than the Office; and (ii) the conduct of such an examination or other assessment by that other person is an ordinary part of the business, functions or activities of that other person; functions includes duties; higher education means education in relation to which a higher education award may be issued; higher education award means – (a) an award of a diploma or advanced diploma; or (b) an award of a graduate diploma or graduate certificate; or (c) an award of an associate degree, bachelor degree, masters degree or doctoral degree; or (d) any other award specified in the Australian Qualifications Framework as a higher education award; or (da) an approved overseas higher education qualification; or (e) a prescribed award – but does not include a qualification that is awarded or issued in respect of vocational education and training or by an exempt university; higher education course means a course of study that entitles a person who satisfies the course requirements to the conferral or issue of a higher education award; interstate higher education course means a higher education course that is – (a) accredited, registered, licensed or otherwise approved under a corresponding law that provides for the accreditation, registration, licensing or other approval of a higher education course; and (b) provided to a student present in Tasmania – but does not include an externally provided distance course; justice of the peace does not include a magistrate; local higher education course means a higher education course, other than an interstate higher education course or overseas higher education course, that – (a) is provided in Tasmania; or (b) is provided in another State, a Territory or another country by a person resident or situated in, or whose principal business premises are situated in, Tasmania; MCEETYA means – (a) the Ministerial Council on Education, Employment, Training and Youth Affairs created in 1993 by the Council of Australian Governments and which consists of the Ministers from the Commonwealth, States and Territories having responsibility for education, employment, training and youth affairs; or (b) any other Ministerial Council consisting of the Ministers from the Commonwealth, States and Territories having responsibility for senior secondary education and tertiary education, whether created in substitution for, or in addition to, the Ministerial Council on Education, Employment, Training and Youth Affairs referred to in paragraph (a) , or otherwise; National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students means the code of that name approved by MCEETYA on 7 July 2006, as amended or substituted from time to time; National Protocols for Higher Education Approval Processes means – (a) the set of protocols governing higher education quality assurance processes agreed to by the States and Territories at the Ministerial Council on Education, Employment, Training and Youth Affairs on 31 March 2000, as amended from time to time; or (b) any set of protocols agreed to in substitution for the National Protocols for Higher Education Approval Processes, as amended from time to time; national standard means a standard relating to the provision of a course, the assessment of a person undertaking a course or the conferral or issue of a qualification in respect of a course to be followed by Commonwealth, State and Territory registering bodies and course accrediting bodies under – (a) (b) the National Protocols for Higher Education Approval Processes; or (c) the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students; or (d) the English Language Intensive Courses for Overseas Students (ELICOS) Standards; other education means education obtained by a person after the completion of those years of schooling that the person is required by law to attend – (a) including but not limited to adult education, community education and education specifically designed for a person with a disability; but (b) excluding senior secondary education, vocational education and training and higher education; other education course means a course of study in other education that entitles a person who satisfies the course requirements to the conferral or issue of an approved qualification; overseas higher education course means a higher education course provided or to be provided by an overseas higher education institution; overseas higher education institution has the same meaning as in the National Protocols for Higher Education Approval Processes; overseas student means a student in relation to whom a fee is paid for a course, but does not include – (a) an Australian citizen or a dependant of an Australian citizen; or (b) a New Zealand citizen or a dependant of a New Zealand citizen; or (c) a permanent resident in Australia or a dependant of such a permanent resident; or (d) a refugee resident in Australia; person includes – (a) a body of persons corporate or unincorporate; and (b) a government department or part of a government department; qualification means the recognition, by any means, that a person has successfully completed a course or course of study or has been successful in an examination or other assessment of an area of his or her education; recognised qualification means a qualification recognised by the Board under section 55ZZM(1) ; registered education (overseas students) provider means a person who is registered as a registered education (overseas students) provider under section 55ZZA ; registered higher education provider means a person who is registered as a registered higher education provider under section 43 , while that registration has effect; registered school has the same meaning as in the Education Act 2016 ; registered student exchange organisation means an organisation or other person that is registered as a registered student exchange organisation under section 33E ; registered training organisation has the same meaning as in the National Vocational Education and Training Regulator Act 2011 of the Commonwealth; Registrar means the Registrar of the Board appointed under section 16 ; registration certificate means a registration certificate issued under section 45 ; registration (overseas students) certificate means a registration (overseas students) certificate issued under section 55ZZC ; registration (student exchange organisation) certificate means a registration (student exchange organisation) certificate issued under section 33F ; regulations means regulations made and in force under section 72 ; rules means rules made and in force under section 64 ; school has the same meaning as in the Education Act 2016 ; self-accrediting higher education provider means a person who is granted the status of self-accrediting higher education provider under section 55O ; senior secondary accreditation framework means the framework relating to the accreditation of senior secondary courses approved by the Minister under section 24F , as amended or substituted from time to time under that section; senior secondary course means a course of study that is normally undertaken, or intended to be undertaken, during senior secondary education; senior secondary education means secondary education that is usually undertaken by persons following the completion of the fourth year of secondary education, being the year commonly known as Year 10; State school has the same meaning as in the Education Act 2016 ; student exchange program means a program whereby Tasmanian students undertaking senior secondary education, or other secondary education, may undertake a part of their studies in a country other than Australia and in return students from other countries may undertake a part of their studies in Tasmania; Treasurer's Instructions means instructions issued under section 114 of the Government Business Enterprises Act 1995 or section 51 of the Financial Management Act 2016 ; vocational education and training has the same meaning as in the Training and Workforce Development Act 2013 . (2) For the purposes of this Act – (a) a person may provide a course or education in person, by mail, by means of the internet, radio or television or by any other means; and (b) a person who provides a course or education to a student who is present in Tasmania while undertaking that course or education is taken to provide that course or education in Tasmania unless that course is an externally provided distance course. 4. Act binds Crown (1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. (2) Nothing in this Act renders the Crown in right of Tasmania liable to be prosecuted for an offence against this Act. 5. Non-application of Act to certain providers of higher education (1) This Act, other than Part 4B , does not apply in relation to – (a) the University of Tasmania; or (b) a university established, recognised or registered by or under – (i) an Act of this State; or (ii) an Act of the Commonwealth, another State or a Territory; or (c) a person who is authorised to provide higher education courses, and self-accredit those courses, by or under an Act of the Commonwealth, another State or a Territory. (2) This Act, or a provision or part of this Act, as prescribed does not apply to a prescribed person or a person of a prescribed class of persons. (3) If the University of Tasmania, a university referred to in subsection (1)(b) , a person referred to in paragraph (c) or a person referred to in subsection (2) is a registered education (overseas students) provider, this Act applies to that university or person in his, her or its capacity as such a registered education (overseas students) provider. 6. Application of principles A person performing a function, action or duty, or exercising a power, under this Act is to have regard to the principles set out in section 4(1) of the Education Act 2016 . PART 2 - Tasmanian Assessment, Standards and Certification Board Division 1 - Tasmanian Assessment, Standards and Certification Board 7. Tasmanian Assessment, Standards and Certification Board (1) The Tasmanian Assessment, Standards and Certification Board is established. (2) The Board – (a) is a body corporate with perpetual succession; and (b) may have a seal; and (c) may sue and be sued in its corporate name. (3) If the Board has a seal – (a) it is to be kept, and used as authorised, by the Board; and (b) all courts and persons acting judicially must take judicial notice of the imprint of the seal on a document and presume that it was duly sealed by the Board. 8. Membership of Board (1) The Board consists of such number of members, including the chairperson, not exceeding 7 but not fewer than 5, as the Minister appoints. (2) Until the members of the Board are appointed under subsection (1) , the Registrar is to perform the functions and exercise the powers of the Board. (3) Before appointing a member under subsection (1) , the Minister is to give notice so that persons interested in being members may provide written expressions of interest to the Minister. (4) Notice given under subsection (3) – (a) is to be given by publication in one or more daily newspapers published and circulating in the State; and (b) may be given – (i) by publication in a journal, periodical or other document; and (ii) by publication or broadcast, by means of the internet, in any format; and (iii) in print, or electronic communication meant for one or more persons. (5) In appointing members under subsection (1) , the Minister is to ensure that the members – (a) collectively, have the following skills: (i) general board governance skills; (ii) skills relevant to the Board's functions; and (b) represent the diversity of the community; and (c) each hold a current registration under the Registration to Work with Vulnerable People Act 2013 . (6) In appointing the members of the Board, the Minister – (a) is to have regard to all expressions of interest provided to the Minister under subsection (3) ; and (b) may have regard to advice sought from an advisory council established under section 249 of the Education Act 2016 ; and (c) may have regard to advice from any existing members of the Board regarding the skills required. (7) The Minister is to appoint a chairperson. (8) Schedule 1 has effect with respect to the membership and meetings of the Board. 9. Objectives of Board The objectives of the Board are to ensure that – (a) relevant national standards and State standards for senior secondary education, vocational education and training and higher education are monitored and met; and (b) links between qualifications for senior secondary education, vocational education and training, higher education and other education are developed or improved; and (c) throughout a person's life as wide a range of qualifications as practicable can be obtained and recognised in senior secondary education, vocational education and training, higher education and other education. 10. Functions of Board (1) The Board has the following functions: (a) to provide a consolidated statement of the approved qualifications and other qualifications of a person at his or her request; (b) to accredit courses for senior secondary education, higher education and other education; (c) to register providers of higher education; (d) to determine standards and qualifications in senior secondary education and other education and to provide for or determine related matters; (e) to set, to conduct or arrange for the conduct of and to mark examinations and assessments in senior secondary education and other education and to provide for or determine related matters; (f) to accredit education programs for overseas students, register providers of such programs and provide for or determine related matters; (g) to collect, record and distribute individual student information relating to senior secondary education, vocational education, higher education and other education; (h) to provide advice to the Minister on matters relating to qualifications; (i) to – (i) collect and record data relating to the educational outcomes, attainment, retention and assessment of students; and (ii) collect and record student demographic data; and (iii) provide to the Minister, at the request of the Minister, the data collected and recorded under subparagraphs (i) and (ii) or such of that data as is specified in the Minister's request; and (iv) provide to the Secretary of the Department, for the purpose of performing his or her functions under this or any other Act, the data collected and recorded under subparagraphs (i) and (ii) in so far as it relates to State schools; and (v) provide to a school, or an organisation representing all or a group of registered schools, the data collected and recorded under subparagraphs (i) and (ii) in so far as it relates to that school or to a registered school represented by that organisation; (j) to distribute the data referred to in paragraph (i) , or part of that data, as required by or under any law; (k) to provide to the Secretary of the Department, or another person or an organisation agreed by the Secretary and the Board, the data referred to in paragraph (i) so as to enable the Department to manage the data on behalf of the Board; (l) functions imposed on the Board by any other Act; (m) other functions imposed on the Board by this Act; (n) other functions imposed on the Board by the Minister by written notice provided to the Board. (2) For the purposes of subsection (1)(i)(iii) and (v) , information that identifies a student may only be distributed to the school, or an organisation representing the registered school, that the student attends. (3) Nothing in this section prevents any school or organisation representing all, or a group of, registered schools from providing data acquired under, or of a kind referred to in, subsection (1)(i) to any school or any such organisation. 11. Powers of Board The Board has the following powers: (a) authorising and directing the undertaking of investigations, inspections, examinations and reviews for the purposes of this Act; (ab) undertaking audits of providers of education or training at the request of persons the Board considers have an interest in the provision of education or training by those providers; (b) acquiring, holding, disposing of and otherwise dealing with property; (c) entering into contracts, including a contract with another person for the performance or exercise of any of its functions or powers by or jointly with that other person; (d) setting charges, terms and conditions relating to work done, or services, goods or information supplied, by it; (da) collecting vocational education attainment data from registered training organisations operating in Tasmania; (e) doing any other thing necessary or convenient to be done in connection with the performance or exercise of its functions and powers under this or any other Act. 11A. Performance and exercise of functions and powers (1) In this section – education regulator has the same meaning as in the Education Act 2016 . (2) In performing functions and exercising powers under this Act, the Board, staff made available to the Board under section 18 and any committee established by the Board are to have regard to any principles of education regulator best practice specified in a Ministerial instruction issued under section 6 of the Education Act 2016 for the purposes of this section. 12. Delegation (1) The Board may delegate any of its functions, duties or powers under this Act or any other Act, other than this power of delegation. (2) The Registrar may delegate to a State Service officer or State Service employee employed in the Department any of his or her functions, duties or powers under this or any other Act, including a function, duty or power delegated to him or her by the Board, other than this power of delegation. 13. Ministerial statement of expectations (1) The Minister, before 31 December in each year, is to give to the Board a statement setting out the Minister's expectations for the Board (a Ministerial statement of expectations) in relation to the period of 12 months commencing 1 July of the next year (or other such period as may be determined by the Minister). (2) In preparing a Ministerial statement of expectations, the Minister is to have regard to the Board's functions and powers. (3) A Ministerial statement of expectations is not to – (a) prevent the Board from performing a function that it is required to perform or from otherwise complying with any Act; or (b) extend the functions or powers of the Board; or (c) seek to direct the Board in relation to a decision made under the Act regarding an individual case. (4) The Board must perform its functions and duties in a manner consistent with an applicable Ministerial statement of expectations. (5) The Minister, on his or her own motion or at the request of the Board, may at any time amend a Ministerial statement of expectations. (6) A Ministerial statement of expectations and any amendment of it is to be in writing and signed by the Minister. (7) An amendment to a Ministerial statement of expectations takes effect on such day as is specified in the instrument of amendment. (8) The Minister may consult with the Board in preparing a Ministerial statement of expectations and any amendment of a Ministerial statement of expectations. 13A. Corporate plan by Board (1) The Board is to prepare a corporate plan annually. (2) A corporate plan is to include targets that measure the performance outcomes of the functions of the Board. (3) A corporate plan is to be – (a) consistent with an applicable Ministerial statement of expectations given under section 13 ; and (b) in such form, if any, as specified in a Ministerial instruction issued under section 6 of the Education Act 2016 . (4) In preparing a corporate plan, the Board – (a) is to consult the Minister; and (b) may consult such other persons as it considers appropriate. (5) After preparing a corporate plan, the Board is to submit a draft of the plan to the Minister for approval. (6) The Minister may – (a) approve the draft corporate plan as submitted; or (b) require the Board to amend the draft corporate plan and resubmit it for approval. (7) To avoid doubt, the Minister's power under subsection (6)(b) may be exercised more than once. (8) If a draft corporate plan is approved by the Minister – (a) it takes effect as the corporate plan of the Board for the period specified in a Ministerial instruction issued under section 6 of the Education Act 2016 for the purposes of this section; and (b) the Board is to act in accordance with the corporate plan during that period. (9) The Board, having regard to changes of circumstance or for other reasonable cause, may prepare an amendment to the corporate plan at any time. (10) Subsections (4) , (5) , (6) , (7) and (8) have the same application to an amendment as they have to the plan itself, and the amendment takes effect once it has been approved by the Minister. (11) The Board is to ensure that the current corporate plan, and the current Ministerial statement of expectations given to the Board under section 13 , are available for public inspection in such manner as the Board determines. 14. Responsibility of Board (1) The Board is responsible – (a) to the Minister, in relation to any functions and powers performed and exercised under sections 10 and 11 ; and (b) to the Secretary of the Department, in relation to all other functions and powers performed and exercised by the Board in accordance with this or any other Act. (2) Despite subsection (1) , neither the Minister nor the Secretary of the Department may direct the Board in relation to an individual decision made under the Act. 14A. Independent review of Board (1) In this section – independent review means a review conducted by persons who – (a) in the Minister's opinion, are appropriately qualified for that task; and (b) include one or more persons who are not State Service employees or State Service officers or employees of any agency of the State. (2) The Minister may require an independent review of the operation of the Board to be conducted, including of the performance and exercise of its functions and powers. (3) The persons who conduct a review are to give the Minister a written report on its outcome. Division 2 - . . . . . . . . 15. . . . . . . . . Division 3 - Registrar and staff of Board 16. Registrar The Secretary of the Department may appoint a State Service officer or State Service employee employed in the Department, other than a member of the Boar