1: Title
1: This Act is the Education (Tertiary Reform) Amendment Act 2002.
2: In this Act, the Education Act 1989 the principal Act
2: Commencement
1: This Act, other than the sections referred to in subsections (2) to (4), comes into force on 1 January 2003.
2: Section 21
3: Sections 15 17 18 26
4: Sections 27 to 31
3: Purpose
The purpose of this Act is to amend the Education Act 1989
a: establishing a Tertiary Education Commission and incorporating Skill New Zealand within it; and
b: extending the requirements for charters, and introducing profiles, to steer the tertiary education sector; and
c: introducing a new approach to funding for the sector to create consistency and strategic use of resources across the sector as a whole; and
d: allowing the New Zealand Qualifications Authority to set conditions on the registration of private training establishments, and on course approvals and accreditations, and providing for the enforcement of those conditions; and
e: providing for the imposition of an export education levy; and
f: making other minor changes to provisions relating to the tertiary education sector and international students. Amendments to Part I (Rights to Primary and Secondary Education) of principal Act
4: Interpretation
1: Section 2(1) domestic student
b: the holder of a residence permit under the Immigration Act 1987
2: Section 2
4: The Governor-General may, by Order in Council, make regulations prescribing criteria that the holder of a residence permit under the Immigration Act 1987 domestic student
5: Regulations made under subsection (4),—
a: if made on or before 30 June in any year, expire on the close of 31 December of that year unless they are expressly confirmed by Act of Parliament passed during that year; and
b: if made on or after 1 July in any year, expire on the close of 31 December in the following year unless they are expressly confirmed by Act of Parliament passed before the end of that following year.
6: The expiry of regulations made under subsection (4) does not affect the validity of any act done pursuant to, or in accordance with, the regulations before the date on which the regulations expire. Amendments to Part XIII (Interpretation) of principal Act
5: Heading to Part XIII amended
The principal Act is amended by omitting the heading to Part XIII General provisions relating to tertiary education
6: New section 159AAA inserted
The principal Act is amended by inserting in Part XIII, before section 159
159AAA: Object of provisions relating to tertiary education
1: The object of this Part, Parts 13A to XVIII, and Part XIX Parts 18A and XX to XXIV
a: fosters, in ways that are consistent with the efficient use of national resources, high quality learning and research outcomes, equity of access, and innovation; and
b: contributes to the development of cultural and intellectual life in New Zealand; and
c: responds to the needs of learners, stakeholders, and the nation, in order to foster a skilled and knowledgeable population over time; and
d: contributes to the sustainable economic and social development of the nation; and
e: strengthens New Zealand's knowledge base and enhances the contribution of New Zealand's research capabilities to national economic development, innovation, international competitiveness, and the attainment of social and environmental goals; and
f: provides for a diversity of teaching and research that fosters, throughout the system, the achievement of international standards of learning and, as relevant, scholarship.
2: In making decisions under this Part, Parts 13A to XVIII, and Part XIX Parts 18A and XX to XXIV Part XXII
7: Interpretation
1: Section 159(1) Parts XIV to XXIV of this Act, and in the Thirteenth to the Eighteenth Schedules to this Act Part 13A to Part XXIV
2: Section 159(1) domestic student
b: the holder of a residence permit under the Immigration Act 1987
3: Section 159(1) charter section 159L Part XV section 184 Commission section 159C give public notice Gazette
a: gives notice of the fact that something has been made, approved, or done; and
b: includes information about how or where the public can see and obtain a copy of the thing that has been made, approved, or done industry training organisation section 5 or section 8(1) of the Industry Training Act 1992 profile section 159W specialist college section 162(2) statement of tertiary education priorities section 159AC tertiary education provider
a: an institution:
b: a registered establishment:
c: a government training establishment:
d: any other person or body that provides, or proposes to provide, tertiary education and that is funded through non-departmental output classes from Vote Education (for example, community education providers) tertiary education strategy section 159AA
4: Section 159(1) institution
ba: specialist college; or.
5: Section 159(1) association
6: Section 159(3) polytechnic, specialist college,
7: Section 159
4: The Governor-General may, by Order in Council, make regulations prescribing criteria that the holder of a residence permit under the Immigration Act 1987 domestic student
5: Regulations made under subsection (4),—
a: if made on or before 30 June in any year, expire on the close of December of that year unless they are expressly confirmed by Act of Parliament passed during that year; and
b: if made on or after 1 July in any year, expire on the close of 31 December in the following year unless they are expressly confirmed by Act of Parliament passed before the end of that following year.
6: The expiry of regulations made under subsection (4) does not affect the validity of any act done pursuant to, or in accordance with, the regulations before the date on which the regulations expire.
8: New sections 159AA to 159AF inserted
The principal Act is amended by inserting in Part XIII, after section 159
159AA: Tertiary education strategy
1: The Minister must from time to time approve a tertiary education strategy that sets out the Government's medium- to long-term strategy for tertiary education.
2: The tertiary education strategy must address the following:
a: the economic context:
b: the social context:
c: the environmental context:
d: the development aspirations of Maori and other population groups.
3: Before approving a tertiary education strategy, the Minister must consult, either directly or through the Secretary, with those stakeholders in the tertiary education sector that he or she considers ought to be consulted.
4: As soon as practicable after approving a tertiary education strategy, the Minister must—
a: give public notice of it; and
b: present a copy of it to the House of Representatives.
159AB: Importance of tertiary education strategy
In exercising their functions under this Act or any other enactment, the Commission, the Qualifications Authority, and the service continued by Part XXII
159AC: Statement of tertiary education priorities
1: The Minister must, at least once in every 3 years, issue a statement of tertiary education priorities that—
a: is based on, and is not inconsistent with, the tertiary education strategy; and
b: sets out the Government's current priorities for tertiary education.
2: The Minister must consult with the Commission before issuing or amending a statement of tertiary education priorities.
3: The Minister may, at any time after a statement of tertiary education priorities has been in force for a year, revoke and replace, or amend the statement. Any amendment forms part of the statement it amends.
4: The Minister must—
a: give public notice of every statement of tertiary education priorities and of every amendment to it; and
b: present a copy of it, and every amendment to it, to the House of Representatives.
159AD: Roles within tertiary education sector
1: Nothing in this Act affects the fact that the Ministry is the Minister's principal policy adviser on tertiary education matters.
2: The Qualifications Authority (or, in the case of universities, the New Zealand Vice-Chancellors Committee) is the body primarily responsible for quality assurance matters in the tertiary education sector.
3: This section is for the avoidance of doubt.
159AE: Ministry may hold and disseminate information
Any information collected and held by the Commission, the Qualifications Authority, or the service continued by Part XXII
a: the agency on whose behalf it is held; and
b: any other person or agency that is entitled to receive it.
159AF: Secretary may delegate certain powers and functions to Commission
1: The Secretary may delegate to the Commission any powers or functions of the Secretary under regulations made pursuant to section 303 or section 306 or section 307
2: A delegation under this section—
a: must be in writing; and
b: may not include a power to further delegate any power or function; and
c: may be revoked at any time by notice in writing.
3: The Commission may exercise any powers or functions delegated to it under this section in the same manner and with the same effect as if the powers or functions had been conferred on the Commission directly, rather than by delegation.
4: If the Commission purports to act under a delegation under this section, the Commission is presumed, in the absence of proof to the contrary, to be acting in accordance with the terms of the delegation. New Part 13A inserted in principal Act
9: New Part 13A inserted
The principal Act is amended by inserting, after Part XIII
13A: Tertiary Education Commission
Preliminary provisions
159A: Purpose of Part
The purpose of this Part is to establish a Tertiary Education Commission and the means by which the Government will exercise leadership of the tertiary education sector to ensure the strategic use of resources.
159B: Definition of organisation
1: In this Part, unless the context otherwise requires, organisation
a: a tertiary education provider:
b: an industry training organisation:
c: a person or body that provides tertiary education-related services and is identified in accordance with subsection (2) as an organisation for the purposes of this Part.
2: The Minister may, by notice in the Gazette Establishment of Commission
159C: Establishment of Commission
1: The Commission is established as a body corporate owned by the Crown.
2: The Commission is a Crown entity for the purposes of the Public Finance Act 1989 Seventh Schedules of that Act
3: Schedule 13A
159D: Composition of Commission
1: The Commission comprises at least 6, but not more than 9, members appointed by the Minister after consultation with the Minister of Maori Affairs.
2: At least 2 months before appointing a member (other than a replacement member appointed under clause 11(1) of Schedule 13A
3: Subsection (2) does not apply if the Minister appoints as a member a person who, immediately before the appointment, was a member of the Transition Tertiary Education Commission.
159E: Powers of Commission
1: The Commission has—
a: all the rights, powers, and privileges of a natural person of full age and capacity; and
b: the power to do anything it is authorised to do by or under this Act, any other enactment, or any rule of law.
2: The Commission may exercise its powers only for the purpose of carrying out its functions.
3: The Commission may provide goods and services that are consistent with its functions and may, with the approval of the Minister, charge a commercial rate for any goods and services provided. Functions of Commission
159F: Functions of Commission
1: The functions of the Commission are—
a: to give effect to the statement of tertiary education priorities through—
i: negotiating charters with organisations; and
ii: negotiating and approving profiles, or parts of profiles, for the purpose of funding; and
iii: allocating funds to organisations; and
iv: building the capability of organisations; and
b: to provide advice to the Minister on—
i: the tertiary education strategy and the statement of tertiary education priorities; and
ii: the activities and performance of the sector generally; and
iii: any policy implications arising from any research, monitoring, or evaluation conducted under paragraph (c); and
c: to conduct applied policy and programme research, monitoring, and evaluation; and
d: to monitor the performance of organisations against their profiles for the purpose of assessing overall achievement in relation to the tertiary education strategy and the statement of tertiary education priorities; and
e: to undertake any functions delegated to the Commission, including (without limitation) functions relating to the funding of organisations other than under section 159ZC
f: to undertake any other function given by this Act, the Industry Training Act 1992 Modern Apprenticeship Training Act 2000
g: to undertake any other function that is necessary or desirable for the purpose of fulfilling its other functions under this subsection.
2: In addition, the Commission may provide information and other tertiary-related services to the Crown, provided that these functions are consistent with the Commission's statement of intent and are consistent with, and do not displace, any of its functions under subsection (1).
159G: Principles guiding how Commission operates
In performing its functions, the Commission must, in addition to complying with section 159AB
a: comply with any written direction of the Minister given under section 159J
b: work closely with the stakeholders of tertiary education providers and industry training organisations; and
c: work closely with tertiary education providers and industry training organisations.
159H: Minister may review performance of Commission
1: The Minister may, by written notice to the Commission, review the performance, or any aspect of the performance, of the Commission.
2: Before the Minister undertakes a review under this section, he or she must—
a: consult with the Commission on the purpose and nature of the review; and
b: consider any submissions made by the Commission on the proposed review.
3: The Minister may appoint any agency to conduct a review under thissection on behalf of the Minister, and in that case clause 16 of Schedule 13A
159I: Delegation of functions or powers of Minister
1: The Minister may, either generally or specifically, delegate to the Commission all or any of the Minister's functions and powers under this Act or any other Act, including—
a: functions or powers delegated to the Minister under this Act or any other Act; and
b: the Minister's powers relating to charters.
2: A delegation under this section must be in writing.
3: No delegation under this section may include the power to delegate under this section.
4: The power of the Minister to delegate under this section—
a: is subject to any prohibitions, restrictions, or conditions contained in any other Act in relation to the delegation of the Minister's functions or powers; but
b: does not limit any power of delegation conferred on the Minister by any other Act.
5: Subject to any general or special directions given, or conditions imposed, by the Minister, the Commission may exercise any functions or powers delegated to the Commission under this section in the same manner and with the same effect as if they had been conferred on the Commission directly by this section and not by delegation.
6: If the Commission purports to act under any delegation under this section, the Commission is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.
7: A delegation does not affect or prevent the exercise of any function or power by the Minister, or affect the responsibility of the Minister for the actions of any person acting under the delegation.
159J: Minister may direct Commission
1: The Minister may, from time to time, give a formal direction under this section to the Commission specifying the policy that the Government wants the Commission to pursue in fulfilling its functions, and the Minister may revoke or amend any existing direction in the same way.
2: The Minister may not give a direction unless he or she has first notified the Commission of his or her intention to do so and invited comment from the Commission on the proposal.
3: Every direction under this section must be consistent with the tertiary education strategy and the functions of the Commission.
4: The Minister may not, under this section, direct the Commission to provide or deny funding under section 159ZC
5: As soon as practicable after giving, amending, or revoking a direction under subsection (1), the Minister must—
a: give public notice of the direction, amendment, or revocation; and
b: present a copy of it to the House of Representatives.
6: If the Minister gives a direction under this section, the Commission must include in its annual report for every year to which the direction relates—
a: a copy of the direction; and
b: a report on how the Commission has responded to it.
159K: Application of Commerce Act 1986
Despite section 6 of the Commerce Act 1986 Charters
159L: What is a charter?
An organisation's charter
a: sets out the organisation's mission and role in the tertiary education system; and
b: is intended to cover a medium- to long-term timeframe; and
c: provides the basis for development of the organisation's profile; and
d: is prepared by the organisation in accordance with the requirements for the contents of charters prescribed by the Minister under section 159M
e: is approved by the Minister in accordance with the criteria for assessment of charters identified by the Minister under section 159M
159M: Content of charters, and assessment criteria
1: The Minister must, in consultation with the Commission, prescribe and give public notice of—
a: the content of charters, being the matters that charters must address; and
b: the criteria that the Minister will use to assess proposed charters.
2: When prescribing, under subsection (1), the content of charters and assessment criteria for charters, the Minister may prescribe standard contents and criteria, as well as prescribing different contents and different criteria applying to different organisations, groups of organisations, or types of organisation.
3: The criteria for assessment may (without limitation) include criteria that relate to the process used to develop a charter as well as to the content of the charter.
4: If the Minister requires an organisation, by notice in writing, to consult over its charter with any specified person or group of persons, that requirement is for all purposes to be treated as assessment criteria that have been prescribed under this section.
159N: Organisations that must or may have a charter
1: After 1 January 2004, the following must have a charter prepared and approved under this Part:
a: all institutions:
b: all other organisations that seek or receive funding from the Commission, unless exempt under subsection (4).
2: At any time before 1 January 2004, the Commission may require, by notice in writing to the organisation, any organisation referred to in subsection (1) to prepare a charter under this Part within a specified reasonable period, and an organisation that receives such a notice must prepare a charter as required.
3: Before 1 January 2004, any organisation that is not required under subsection (2) to have a charter, but that wishes to have one may, with the agreement of the Minister, prepare and seek approval for a charter.
4: The Minister may, on the advice of the Commission,—
a: by notice in writing to an organisation, exempt the organisation from the requirement to have a charter or from any requirement about the content of charters; and
b: by notice in the Gazette
5: Subsection 4 does not apply to institutions.
159O: Preparing charters
1: An organisation that wishes, or is obliged, to have a charter must—
a: identify its stakeholders and publish a list of them in at least 1 daily newspaper circulating in each area served by the organisation; and
b: prepare a proposed charter; and
c: consult with its stakeholders over the proposed charter; and
d: consult with any other person or group of persons with whom the Minister requires the organisation to consult.
2: After completing the consultation required under subsection (1)(c) and (d), the organisation must submit the proposed charter to the Commission for comment and consultation.
3: Following consultation with the Commission over, and (if necessary) modification of, the proposed charter, the organisation must submit the proposed charter to the Commission for approval by the Minister.
159P: Minister's approval of charters
1: The Minister must assess a proposed charter against the criteria prescribed under section 159M(1)
2: The Minister must approve a proposed charter unless satisfied on reasonable grounds that he or she should not do so.
3: A charter comes into effect on the date specified by the Minister.
4: If the Minister rejects a proposed charter, he or she must give reasons for the rejection.
5: An organisation may submit a revised proposed charter to the Minister as many times as is necessary, but only if, before resubmitting it, the organisation has consulted further with the Commission and, if the revisions are significant, with the people or groups with whom it is required to consult under section 159O(1)(c) and (d)
159Q: Minister's special powers in relation to charters of institutions
1: If the Minister and an institution cannot agree over the content of the institution's charter, the Minister must, after consulting as he or she thinks appropriate, determine the matter.
2: The Minister may, at any time, on his or her own initiative, propose amendments to an institution's charter or proposed charter.
3: If the Minister proposes an amendment to a charter or proposed charter, he or she must notify the institution of the proposal and give the institution a reasonable period in which to make submissions in response to it.
4: After considering any submissions made by an institution on the proposal, the Minister may approve the proposed amendment, with or without further amendment, or abandon the proposal.
5: Nothing in this section limits the right or ability of an institution to propose any amendment to its own charter or proposed charter.
159R: Minister may approve interim charters for institutions
1: In any of the following circumstances, the Minister may, on his or her own initiative, approve an interim charter for an institution:
a: when an institution is newly established:
b: when an institution has changed its status:
c: when an institution has merged with another institution or had another institution incorporated into it:
d: when an institution's charter has expired or been revoked:
2: An interim charter approved under subsection (1) remains in force until a new charter is approved under section 159P
159S: Amendments to, and review of, charters
1: Sections 159O and 159P section 159Q
2: If the Minister approves an amendment to a charter, the amendment forms part of the charter from the date set by the Minister.
3: The Minister may, at any time, require an organisation to review its charter with a view to amending or replacing it.
159T: Expiry of charters
1: Every charter must specify the date on which it expires, which must be—
a: an expiry date as agreed with the Minister, which must be a date no later than 10 years after the date on which the charter comes into effect; or
b: in the case of an industry training organisation, the date on which its recognition under section 5 or section 8(1) of the Industry Training Act 1992
2: Every charter, unless revoked earlier, expires on its expiry date.
159U: Charter may lapse if organisation does not receive funding
The charter of an organisation (other than an institution) lapses if the provider does not receive funding from the Commission for 2 consecutive years.
159V: Charters must be available
An organisation that has a charter must ensure that the charter is available for inspection by the public, and that copies may be obtained at no more than a reasonable cost. Profiles
159W: What is a profile?
An organisation's profile is a document that—
a: is prepared annually; and
b: sets out the organisation's operating plans, key policies, and proposed activities for the next 3 years; and
c: sets out the organisation's objectives, and the performance measures and targets that the organisation will use to measure its performance; and
d: sets out the short- to medium-term strategic direction of the organisation; and
e: identifies the activities of the organisation for which it seeks or receives funding from the Commission; and
f: sets out the basis on which funding will be sought or received from the Commission; and
g: demonstrates how the organisation will give effect to its charter (unless it is exempt under section 159N(4)
h: identifies the information that the organisation will supply on an annual basis to the Commission; and
i: includes the content prescribed under section 159X(1)(a)
159X: Content of profiles and criteria for approval
1: The Commission must, at least once every 3 years, prescribe and give public notice of—
a: the content and form of profiles; and
b: the criteria on which the Commission will approve profiles, or parts of profiles, for funding purposes; and
c: the kinds of background or supplementary information that the Commission may require an organisation to provide when it submits its profile to the Commission; and
d: the timetable and process for the submission of profiles to the Commission.
2: Notices given under subsection (1)—
a: may prescribe different content and form, criteria, information, timetables, and processes for different organisations, groups of organisations, or types of organisation; and
b: may be given at different times; and
c: may be amended by the Commission, in which case the Commission must give public notice of the amendment.
3: The Commission may permit organisations to prepare combined profiles for more than 1 organisation.
4: The Commission may waive any requirement (other than a requirement imposed by this Act) as to the content or form of profiles, or the timing or process to be used in submitting them.
159Y: Organisations that must have a profile
1: After 1 January 2004, the following organisations must have a profile:
a: all institutions:
b: all other organisations that seek or receive funding from the Commission, unless exempt under subsection (3).
2: At any time before 1 January 2004, the Commission may, by notice in writing to an organisation, require the organisation to prepare a profile within a specified reasonable period; and an organisation that receives such a notice must prepare a profile.
3: Despite subsection (1), the Commission may,—
a: by written notice to an organisation, exempt the organisation for a specified period from the requirement to have a profile; and
b: by notice in the Gazette
4: Subsection (3) does not apply to institutions.
159Z: Profiles must be publicly available
An organisation that has a profile must ensure that the profile is available for inspection by the public, and that copies may be obtained at no more than a reasonable cost. Funding by Commission
159ZA: Minister must determine design of funding mechanisms
1: The Minister must, from time to time, determine the design of the mechanisms that the Commission must use to fund organisations.
2: Without limiting the generality of subsection (1), when determining the design of funding mechanisms the Minister—
a: must identify the general form and essential components of each mechanism; and
b: must indicate which mechanisms relate to funding provided under section 159ZC
c: may specify the amount of money, or the proportion of an amount of money, available under any particular mechanism; and
d: may provide for different versions or modifications of a mechanism to apply to different groups of organisations; and
e: may specify conditions that the Commission must attach to funding provided under any funding mechanism, including conditions setting limits on the fees that an organisation may charge domestic students; and
f: may make provision for funding that targets particular student groups.
3: However, the Minister may not identify a specified organisation or organisations to which funding is to be provided or denied under any mechanism.
4: Every mechanism must be consistent with the principle that receipt by an organisation of public funds is dependent on the organisation meeting quality assurance requirements under this Act.
5: The Commission must develop the details of how to implement the Minister's determinations under this section.
6: The Minister may not, under subsection (2)(e), specify conditions setting limits on the fees that organisations may charge domestic students until 2 months after the date on which the Minister has published a notice in the Gazette
a: states that the Minister proposes to specify such conditions; and
b: sets out the proposed conditions; and
c: invites submissions on the proposed conditions; and
d: specifies the date by which submissions must be received, which must be a date no more than 21 days after the date of the Gazette
159ZB: Approval of profiles for funding purposes
1: An organisation that has a profile may submit it to the Commission for approval for funding purposes.
2: The Commission may, after discussion and, if necessary, negotiation with the organisation, approve all or any part of the organisation's profile for funding purposes.
3: If the Commission does not approve a profile or part of a profile for funding purposes, it must notify the organisation and give reasons for the non-approval.
4: If the Commission approves an organisation's profile, or part of its profile, for funding purposes, the organisation is eligible for funding from the Commission.
159ZC: Payment of funding
1: The Commission must determine the amount of funding payable to an organisation that is eligible for funding by applying the appropriate funding mechanism or mechanisms to the part or parts of the organisation's profile that are approved for funding purposes.
2: The Commission must arrange for payment to the organisation of the amount of funding determined under subsection (1).
3: If a funding mechanism provides that funding may be provided under it to an organisation that does not have a profile, the Commission may, in accordance with the funding mechanism, fund an organisation under this section even if it does not have a profile.
4: Nothing in this section limits the Commission's powers, under a delegated authority or any other enactment, to fund organisations other than under this section.
159ZD: Conditions on funding
1: It is a condition of payment of funding under section 159ZC
2: The Commission may impose conditions on the use of any funding provided under section 159ZC
a: any or specified conditions may be imposed; or
b: specified conditions must be imposed.
3: The Commission may at any time (including during a funding period) amend any condition imposed under subsection (2), but no such amendment takes effect until the organisation has had reasonable notice of it.
159ZE: Accountability for funding received under section 159ZC
1: An organisation, other than an institution, that receives funding under section 159ZC
a: records are kept, in a form not inconsistent with that required by the Commission, for the period to which the funding relates, that fully and fairly show—
i: the transactions, assets, liabilities, and funds of the organisation that are or were affected by the funding; and
ii: whether any conditions on which the grant was made have been complied with; and
b: the records are available for inspection by the Commission at all reasonable times.
2: As soon as practicable after the end of any year in which an organisation, other than an institution, receives funding under section 159ZC
a: a financial report of the organisation for that year, including a statement of financial performance, a statement of financial position, a statement of movements in equity, a statement of cash flows, and a statement of service performance that compares the performance of the organisation with the objectives and targets specified in the organisation's profile for that year; and
b: any financial reports, or statistical or other information, required by the Commission; and
c: any information necessary to demonstrate compliance with any condition attached to any funding.
3: The reports required under subsection (2)(a) must be prepared in accordance with generally accepted accounting practice and must be audited by an independent chartered accountant.
4: Section 203
159ZF: Commission may suspend funding
The Commission may suspend or terminate payment, or any or all further payments, of any funding to an organisation if the Commission is satisfied on reasonable grounds that the organisation—
a: has not complied, or is not complying, with a condition on which the funding was provided; or
b: in the case of funding provided under section 159ZC Amendments to Part XIV (Establishment and disestablishment of institutions) of principal Act
10: Establishment of institutions
1: Section 162(2) a polytechnic, a specialist college,
2: Section 162(3)
ab: satisfy himself or herself that the establishment of the institution is in the interests of the tertiary education system and the nation as a whole; and.
3: Section 162(4) a polytechnic, a specialist college,
4: Section 162(4)(b)
iia: a specialist college is characterised by teaching and (if relevant) research of a specialist nature that maintains, enhances, disseminates, and assists in the application of knowledge and expertise:
11: Disestablishment of institutions
Section 164(3)
ab: is satisfied that the disestablishment is in the interests of the tertiary education system and the nation as a whole; and. Amendments to Part XV (Administration of tertiary institution) of principal Act
12: Incorporation
Section 166(1) polytechnic, specialist college,
13: Functions of Councils
1: Section 180
b: to prepare, negotiate, and adopt a charter for the institution:
c: to adopt a profile for the institution:
d: to ensure that the institution is managed in accordance with its charter and its profile:
e: to determine the policies of the institution in relation to the implementation of its charter, the carrying out of its profile, and, subject to the State Sector Act 1988
2: Section 180
2: If, at any time before 1 January 2004, an institution does not have a profile, the references in subsection (1) to a profile must be taken to refer instead to the statement of objectives required under section 41 of the Public Finance Act 1989
14: New section 184A inserted
The principal Act is amended by inserting, after section 184
184A: Interim arrangements for charters
1: Sections 159L to 159V Part 13A
2: Despite subsection (1), the Commission may exercise its power under section 159N(2) Part 13A
3: The charter of an institution that is approved under this Part is revoked on the earlier of—
a: the date on which a charter for the institution approved under Part 13A
b: 1 January 2004.
4: The Secretary may delegate to the Commission, and the Commission may exercise, any of the Secretary's functions and powers under this Part that relate to institutions' charters.
15: Heading and sections 184 to 191 repealed
The heading above section 184
16: New heading and section 191A inserted
The principal Act is amended by inserting, after section 191 Profiles
191A: Each institution to have a profile
1: The Council of every institution must, before the start of an academic year, adopt a profile for that academic year.
2: Subsection (1) does not apply to the 2003 academic year.
3: When an institution adopts a profile, it must immediately forward a copy to the Commission.
17: Heading and section 199 repealed
1: The principal Act is amended by repealing section 199
2: Section 228(2A) section 199 of this Act section 159ZC
18: New section 201A inserted
The principal Act is amended by inserting, after section 201
201A: How institutions may use income and capital
1: An institution may, subject to the provisions of any enactment and the terms of any trust or endowment,—
a: apply its income and capital in doing whatever the Council of the institution thinks will accomplish the goals and purposes set out in the institution's charter; and
b: create, maintain, or add to, out of income, a fund or funds for any 1 or more of the purposes for which the income may be applied.
2: Subsection (1)(b) does not limit the generality of subsection (1)(a).
19: Application of Public Finance Act 1989
1: Section 203
2: Section 41 of the Public Finance Act 1989
3: Every institution must include in the financial statements required under section 41 of the Public Finance Act 1989
2: Despite subsection (1), section 203(2) Amendments to Part XVI (Courses and students) of principal Act
20: Fees for domestic students
Section 227
1A: The Council of an institution that receives funding under section 159ZC section 159ZD(2) Amendments to Part XVIII (Private training establishments) of principal Act
21: New section 232 substituted
The principal Act is amended by repealing section 232
232: Courses for foreign students to be quality assured unless exempt
1: A person must not permit a foreign student to begin to undertake a course of study or training at a private training establishment unless—
a: the course is an approved course and the establishment is accredited to provide it; or
b: the course is of less than 3 months' duration and is an exempt course, as provided for in subsection (2).
2: The Qualifications Authority may, by notice in the Gazette
3: A notice under subsection (2)—
a: may exempt only courses of study or training that are, or are likely to be, of less than 3 months' duration; and
b: may identify courses, or classes of courses, that are exempt; and
c: may identify courses by reference to a provider, or a class of provider, that offers them; and
d: may be in respect of courses that have been completed, are in progress, or have not yet started; and
e: is a regulation for the purposes of the Regulations (Disallowance) Act 1989 Acts and Regulations Publications Act 1989
4: For the purposes of this section and section 236(1)
22: Grant or refusal of application
1: Section 236(1) The Qualifications Authority must grant an application for registration of a private training establishment, and may only grant such an application, if it is satisfied that—
2: Section 236(1)
a: omitting from paragraph (e) the word education,— education.
b: omitting all the words after paragraph (e).
3: Section 236(1)(b) has , or will at the relevant time have,
4: Section 236(1)(d)(ii) study or training (other than a course of less than 3 months' duration)
5: Section 236(1)(d)
iv: allows, or will allow, every foreign student enrolled for a course of study or training that is of less than 3 months' duration to withdraw from it within a period (being less than 7 days) specified by the Authority, and refunds, or will refund, to any student who so withdraws a minimum amount or proportion, specified by the Authority, of any payments made by the student to the establishment in respect of the course; and
6: Section 236
4: The Authority must give written notice to a private training establishment when it grants or refuses to grant registration and, if it refuses registration, it must give reasons for the refusal.
23: New section 236AA inserted
The principal Act is amended by inserting, after section 236
236AA: Conditions on registration
1: It is a condition of registration that the establishment will at all times comply with the relevant policies and criteria established by the Qualifications Authority under section 253(1)(ca)
2: When granting registration to an establishment, the Qualifications Authority may impose conditions on the registration that are specific to that establishment.
3: The Qualifications Authority may at any time, with the agreement of a registered establishment, impose new conditions on its registration, and may amend or revoke any existing conditions.
4: The Qualifications Authority may, without the agreement of a registered establishment, impose conditions on its registration, or amend or revoke any existing conditions, but only if the Authority has first—
a: given written notice to the establishment of its intentions; and
b: given the establishment a reasonable opportunity to respond to the notice; and
c: considered any submissions made by the establishment in response to the notice.
5: When conditions are imposed, amended, or revoked, the Qualifications Authority must give notice in writing to the registered establishment of the new, amended, or revoked conditions.
24: New section 236C inserted
The principal Act is amended by inserting, after section 236B
236C: Fees for domestic students must not exceed maximums set in conditions of funding
A registered private training establishment that receives funding under section 159ZC section 159ZD(2)
25: New section 237 substituted
1: The principal Act is amended by repealing section 237
237: Cancellation of registration
1: The Authority may cancel the registration of a registered establishment if it is satisfied on reasonable grounds that—
a: the establishment no longer meets 1 or more of the requirements set out in section 236(1)
b: the establishment is not complying, or has not complied, with 1 or more of the conditions applying to it.
2: Before cancelling a registration, the Authority must—
a: notify the establishment that it is considering cancelling registration, and give reasons; and
b: give the establishment a reasonable opportunity to respond to the notice; and
c: consider any submissions made by the establishment in response to the notice.
3: If the Authority cancels a registration, it must give notice of its decision to both the establishment and the Commission, with reasons.
4: Nothing in this section limits the Authority's powers under section 255A(7)
2: Section 238
26: Section 238A repealed
Section 238A Amendments to Part 18A (Code of practice for providers who enrol international students) of principal Act
27: Heading to Part 18A amended
The principal Act is amended by omitting from the heading to Part 18A Code of practice for providers who enrol international International
28: Interpretation
Section 238D international student
29: Signatories to code may enrol persons as international students
Section 238E
4: Until 1 July 2003, nothing in subsection (1) or subsection (2) applies to providers who enrol international students only on courses of less than 3 months' duration (as that term is defined in section 232(4)
30: New sections 238H and 238I substituted
The principal Act is amended by repealing section 238H
238H: Export education levy
1: The Governor-General may, by Order in Council, in accordance with a recommendation of the Minister, make regulations imposing an export education levy on providers who receive tuition fees from international students enrolled with them.
2: Without limiting subsection (1), regulations made under this section must—
a: prescribe the amount, a method or methods for calculating the amount, or both, of export education levy payable by individual providers, and may prescribe different amounts, or different methods of calculating the amounts, payable by different classes of provider; and
b: prescribe when the levy, or any part of the levy, is payable, and the period to which it, or any part of it, relates; and
c: designate the agency that will administer the levy and, if that agency is the Ministry, the regulations may authorise the Ministry to delegate all or specified aspects of the levy's collection and use to another body; and
d: require that a provider supplies, on request by the agency responsible for the administration of the levy, information on student numbers or any other matter that is necessary to determine or verify the amount of levy payable by the provider; and
e: otherwise provide for the collection and use of the levy in accordance with this section and section 238I
3: The Minister must consult with providers before recommending that regulations be made under subsection (1) that prescribe or amend an export education levy.
4: No regulations may be made under this section that impose a levy in respect of tuition fees received in respect of any period before 1 January 2003.
238I: Purpose and administration of export education levy
1: The purposes to which the funds of the levy may be put are as follows:
a: the development, promotion, and quality assurance of the export education sector, which may include (without limitation)—
i: professional and institutional development; and
ii: marketing; and
iii: implementation of scholarship schemes; and
iv: research, and resource development; and
v: support (financial or otherwise) of other bodies engaged in the development, promotion, or quality assurance of the export education sector:
b: the administration and audit of the code:
c: the general administration of the levy and associated purposes.
2: The funds of the levy must be kept in a separate bank account that is used only for the purposes of the levy.
3: As soon as practicable after 1 July in each year, the agency responsible for the administration of the levy must present to the Minister an annual report on the administration of the levy, which must include audited financial statements prepared in accordance with generally accepted accounting practice; and the Minister must present a copy of the report to the House of Representatives.
4: The amount of levy payable by a provider under regulations made under this section is a debt due to the Crown and may be recovered in any court of competent jurisdiction.
5: No later than 1 March 2006, the Minister must—
a: undertake, in consultation with providers, a review of the operation, administration, and effectiveness of the export education levy; and
b: prepare a report on the findings of the review; and
c: present a copy of the report to the House of Representatives.
31: Money for annual fee to transfer into export education levy account
The money held for the purpose of the annual fee for the administration of the code in the trust account established under section 238H section 30 section 238I(2) Amendment to Part XIX (Vice-Chancellors Committee) of principal Act
32: Functions of Committee
Section 241(b) sections 258 and 259 of this Act sections 255A, 258, 258A, 259, and 259A Amendments to Part XX (New Zealand Qualifications Authority) of principal Act
33: Functions of Authority
1: Section 253(1) of the principal Act is amended by inserting, after paragraph (c), the following paragraph:
ca: subject to subsection (2), to establish policies and criteria for the registration of private training establishments:.
2: Section 253(2) of the principal Act is amended by omitting the words paragraph (d) or paragraph (e) of subsection (1) of this section subsection (1)(ca), (d), or (e)
3: Section 253(3) of the principal Act is amended by omitting the words paragraph (d) or paragraph (e) of subsection (1) of this section subsection (1)(ca), (d), and (e)
34: New section 255A inserted
The principal Act is amended by inserting, after section 255
255A: Compliance notices
1: In this section, institution
2: The Authority may issue a compliance notice to an institution requiring the institution to do, or refrain from doing, a particular thing in relation to the institution's registration (in the case of an institution that is a registered establishment) or to the institution's course approvals or accreditations.
3: Every compliance notice must be in writing and must—
a: give the date on which it is issued; and
b: specify a time on or before which, or a period within which, the institution must comply with the notice; and
c: state the consequences or possible consequences of non-compliance with the notice.
4: The Authority may publish any compliance notice, or a summary of a compliance notice, in a manner designed to give public notice of the compliance notice.
5: An institution that receives a compliance notice must comply with it within the time or during the period specified in the notice.
6: The Authority may, before the expiry of the time or period referred to in subsection (3)(b), extend that time or period, in which case the extended time or period is for all purposes the time or period within or during which the notice must be complied with.
7: If the institution does not comply with the compliance notice, the Authority may immediately,—
a: if the notice was issued to a registered establishment and related to a registration matter, cancel the registration of the establishment, or impose new, or amend or revoke any existing, conditions on the establishment's registration; or
b: if the notice related to a course approval, withdraw any course approvals held by the institution, or impose new, or amend or revoke any existing, conditions on any course approval held by the institution; or
c: if the notice related to an accreditation, withdraw any accreditations held by the institution, or impose new, or amend or revoke any existing, conditions on any accreditation.
8: The Authority may not do any of the things specified in subsection (7) until the later of—
a: 10 days from the date of issue of the notice; and
b: the expiry of the time or period referred to in subsection (3)(b).
35: Approval of courses
1: Section 258
9A: If the Authority withdraws an approval under this section, it must give notice of the withdrawal, with reasons, to the institution concerned.
9B: Nothing in this section limits the Authority's power to withdraw an approval under section 255A(7)
2: Section 258(10) , and may impose conditions on any such grant
36: New section 258A inserted
The principal Act is amended by inserting, after section 258
258A: Conditions on course approvals
1: Every course approval is subject to the condition that the institution will at all times comply with the relevant policies and criteria established by the Authority under section 253(1)(d)
2: When approving a course, the Authority may impose conditions on the approval that are specific to the approval for that particular course.
3: The Authority may at any time, with the agreement of the institution that holds the course approval, impose new conditions on the approval and may amend or revoke any existing conditions.
4: The Authority may, without the agreement of the institution, impose conditions on a course approval, or amend or revoke any existing conditions, but only if the Authority has first—
a: given written notice to the institution of its intentions; and
b: given the institution a reasonable opportunity to respond to the notice; and
c: considered any submissions made by the institution in response to the notice.
5: When conditions are imposed, amended, or revoked, the Authority must give notice in writing to the institution that holds the approval of the new, amended, or revoked conditions.
37: Accreditation to provide approved courses
Section 259
7: If the Authority withdraws an accreditation under this section, it must give notice of the withdrawal, with reasons, to the institution concerned.
8: Nothing in this section limits the Authority's power to withdraw an accreditation under section 255A(7)
38: New section 259A inserted
The principal Act is amended by inserting, after section 259
259A: Conditions on accreditation to provide approved courses
1: Every accreditation is subject to the condition that the institution will at all times comply with the relevant policies and criteria established by the Authority under section 253(1)(e)
2: When granting accreditation to an institution to provide an approved course of study or training, the Authority may impose conditions on the accreditation that are specific to the accreditation.
3: The Authority may at any time, with the agreement of the accredited institution, impose new conditions on the accreditation and may amend or revoke any existing conditions.
4: The Authority may, without the agreement of the institution, impose conditions on an accreditation, or amend or revoke any existing conditions, but only if the Authority has first—
a: given written notice to the institution of its intentions; and
b: given the institution a reasonable opportunity to respond to the notice; and
c: considered any submissions made by the institution in response to the notice.
5: When conditions are imposed, amended, or revoked, the Authority must give notice in writing to the accredited institution of the new, amended, or revoked conditions.
39: Exercise of certain powers of Authority
Section 260 sections 258 and 259 of this Act sections 255A, 258, 258A, 259, and 259A
40: Minister may consent to registered establishments using certain terms in their names
1: Section 264A(2)
ba: be satisfied that consenting to the application is in the interests of the tertiary education system and the nation as a whole; and.
2: Section 264A
4: The Minister may audit any registered establishment that has been given consent to use one of the terms in subsection (1) for continuous compliance with the requirements for consent to use the term.
5: If the Minister is not satisfied that a registered establishment is continuing to comply with the requirements for consent to use the term for which consent has been given, the Minister may—
a: withdraw the consent; or
b: suspend the consent for a specified period, at the expiry of which the Minster must either lift the suspension or withdraw the consent. Repeal of Part XXI (Skill New Zealand) and Sixteenth Schedule of principal Act
41: Part XXI and Sixteenth Schedule repealed
Part XXI Sixteenth Schedule Amendments to Part XXVII (Recognition and funding of other services) of principal Act
42: Interpretation
Section 320 financial year educational body body section 159B
43: Grants to other education services
1: The heading to section 321 other education services educational bodies
2: Section 321
1: An educational body may be paid grants out of public money appropriated by Parliament for the purpose on such conditions as the Minister thinks fit.
2: However, a grant may not be paid under this section to a tertiary education provider or an industry training organisation (as those terms are defined in section 159
44: Recognised bodies to keep accounts
1: The heading to section 322 Recognised Educational
2: Section 322
2: Every grant under section 321
a: the purpose of the grant; and
b: any conditions attaching to it; and
c: the reporting obligations of the recipient. Repeal of Part XXIII (Tertiary Research Board) of principal Act
45: Repeal of Part XXIII
1: The principal Act is amended by repealing Part XXIII
2: The principal Act is consequentially amended by—
a: repealing section 202(b)
b: repealing section 297(11)
c: repealing the Eighteenth Schedule Amendments to Part XXIV (Miscellaneous provisions) of principal Act
46: Offences
1: Section 292
4: A person must not—
a: use the term university
i: is a university; or
ii: is a registered establishment that has the Minister's permission under section 264A
iii: was a university but, despite being incorporated under section 164(4) section 162(4)(a) and (b)(iii)
b: use the term college of education
i: is a college of education; or
ii: is a registered establishment and the Minister has consented under section 264A
iii: was a college of education but, despite being incorporated under section 164(4) section 162(4)(b)(i)
c: use the term polytechnic
i: is a polytechnic or institute of technology; or
ii: is a registered establishment that has the Minister's permission under section 264A
iii: was a polytechnic or institute of technology but, despite being incorporated under section 164(4) section 162(4)(b)(ii)
d: use the term institute of technology
i: is an institute of technology or a polytechnic; or
ii: is a registered establishment that has the Minister's permission under section 264A
iii: was an institute of technology or a polytechnic but, despite being incorporated under section 164(4) section 162(4)(b)(ii)
5: A person (other than a university) must not grant or purport to grant an award that is described as a degree bachelor master doctor
a: the person has the consent of the Qualifications Authority or body subject to a delegation under section 254(5)
b: as provided by section 192(11)
2: Section 292(8) subsection (4) or subsection (6) of this section any of subsections (4), (5), or (6) New Schedule 13A inserted in principal Act
47: New Schedule 13A inserted
The principal Act is amended by inserting, after Schedule 13 Schedule 1 Transitional provisions
48: Interpretation
In sections 49 to 57 assets section 216(1) Commission section 159C section 9 liabilities section 216(1) Ministry Skill New Zealand section 270 transferred employee Absorption of Skill New Zealand into Commission
49: Skill New Zealand absorbed into Commission
1: On the date of commencement of this section, Skill New Zealand ceases to exist and—
a: the term of office of every member of the Board of Skill New Zealand expires; and
b: all assets and liabilities of Skill New Zealand vest in the Commission.
2: No member of the Board of Skill New Zealand is entitled to compensation as a result of the expiry under this section of his or her term of office.
3: On and from the date of commencement of this section, every reference to Skill New Zealand in any enactment (other than this Act), or in any instrument, register, agreement, deed, lease, application, notice, or other document in force at the effective date, must, unless the context otherwise requires, be read as a reference to the Commission.
50: Final report and accounts
1: As soon as reasonably practicable after the commencement of this section, the Commission must arrange for the final report of Skill New Zealand to be delivered to the Minister.
2: The report must—
a: describe Skill New Zealand's operations for the period beginning on 1 July 2002 and ending immediately before the commencement of this section; and
b: include—
i: financial statements of Skill New Zealand prepared, in accordance with Part V
ii: an audit report prepared by the Auditor-General.
3: The Minister must present a copy of the report to the House of Representatives under section 44A
51: Transfers of contracts and leases do not give rise to claims
1: No person has any claim against the Crown for breach of any contract merely because the administration of the contract or the benefit of the contract is vested in the Commission by section 49
2: Subsection (1) applies whether or not the vesting involves the Commission and its employees gaining access to any information, data, programme, intellectual property right, know-how, chattel, equipment, transmission device, or facility of the claimant or any other person.
52: Effect of absorption of Skill New Zealand into Commission
1: On and from the date of commencement of this Act, anything done or omitted to be done by, or in relation to, Skill New Zealand must be treated as having been done or omitted by, or in relation to, the Commission.
2: The disestablishment of Skill New Zealand and the transfer of its undertaking and functions to the Commission does not affect—
a: the assets, liabilities, or rights of the Crown or Skill New Zealand (other than by transferring them); or
b: the commencement or continuation of proceedings by or against Skill New Zealand; those proceedings may instead be commenced or continued by or against the Commission.
3: If the transfer of an asset or liability under section 49
4: Subsection (2) does not limit section 49 section 51 sections 53 to 57 Transfer of employees to Commission
53: Transfer of employees of Skill New Zealand
1: Every person who is employed by Skill New Zealand immediately before the commencement of this Act transfers to the Commission on that date of commencement.
2: The transfer of an employee by this section is subject to any relevant transfer provisions in the employment agreement or contract applying to that employee.
3: Subsection (2) is subject to section 57
54: Transfer of employees of Ministry
Employees of the Ministry may be transferred to the Commission under section 61A
55: Transfer does not break continuity of employment
For the purpose of any provisions of a transferred employee's employment agreement or contract relating to continuity of service, the employee's transfer to the Commission from Skill New Zealand or the Ministry is insufficient, by itself, to break his or her employment.
56: Protection of terms and conditions for transferred employees
1: The employment of a transferred employee must be on terms and conditions no less favourable than those applying to the employee immediately before the date of the person's transfer to the Commission.
2: Subsection (1)—
a: continues to apply to the terms and conditions of employment of a transferred employee until those terms and conditions are varied by agreement between the transferred employee and the Commission; but
b: does not apply to a transferred employee who, after the transfer, receives any subsequent appointment within the Commission.
57: No compensation for technical redundancy
1: An employee who has transferred, or will transfer, to the Commission under section 53 section 54
2: An employee of the Ministry is not entitled to receive any payment or other benefit on the ground that his or her position in the Ministry has ceased to exist if—
a: the position ceases to exist as a result of a transfer of functions of the Ministry to the Commission; and
b: in connection with that transfer of functions,—
i: the employee is given the opportunity, under section 54 section 56
ii: the employee is offered, and accepts, other employment in the Ministry.
3: This section overrides an employee's employment agreement to the extent that it is inconsistent with that agreement. Miscellaneous
58: Chief executive may be called General Manager
For the first 3 years after the Tertiary Education Commission is established, the person appointed as its chief executive officer under clause 36 of Schedule 13A of the principal Act (as inserted by section 47 Consequential amendments
59: Consequential amendments
The enactments specified in Schedule 2


Industry Training Amendment Act 2002

1: Title
1: This Act is the Industry Training Amendment Act 2002.
2: In this Act, the Industry Training Act 1992 the principal Act
2: Commencement
1: This Act, other than the sections referred to in subsection (2), comes into force on 1 January 2003.
2: Sections 4(3) and (4) 5(1), (2), and (4) 6(1) and (2) 7(1), (2), and (4) 8 9(1), (5), (6), and (7) 11 12 13 15 17
3: Purpose
The purpose of this Act is to improve the effectiveness and responsiveness of the industry training system.
4: Interpretation
1: Section 2 Agency applicant organisation Board
2: Section 2 employment agreement Commission section 159C of the Education Act 1989
3: Section 2 funding agreement
4: Section 2 Minister profile section 159W of the Education Act 1989
5: Section 2 statement of tertiary education priorities section 159AC of the Education Act 1989
5: Board may recognise certain organisations
1: The heading to section 5 Commission Minister
2: Section 5 Commission Minister
3: Section 5
2: The Commission may, at the request of an industry training organisation, at any time before that industry training organisation's recognition expires, amend the description of the industry in respect of which that industry training organisation is recognised, by publishing a notice in the Gazette
4: Section 5(2) Commission Minister
6: Board to be satisfied of organisation's abilities
1: The heading to section 6 Commission to Minister must
2: Section 6 Commission Minister
3: Section 6 ; and
c: provide leadership within the industry on matters relating to skill and training needs by—
i: identifying current and future skill needs; and
ii: developing strategic training plans to assist the industry to meet those needs; and
iii: promoting training that will meet those needs to employers and employees; and
d: develop arrangements for the collective representation of employees in the governance of the organisation.
7: Matters to which Board is to have regard before recognising organisations
1: The heading to section 7 Commission is to Minister must
2: Section 7 Commission is to Minister must
3: Section 7
g: whether the organisation has performed satisfactorily at other times when the organisation has been recognised or provisionally recognised; and
h: whether the organisation has taken reasonable steps to avoid fragmentation and to provide a clear and representative industry focus for each organisation; and
i: any other matters in that behalf specified in the Commission's statement of intent.
4: Section 7(i) Subsection (4) amended 22 October 2003 section 3 Industry Training Amendment Act 2003 by substituting the expression 7(i) 7(j)
8: Provisional recognition
1: Section 8(1) applicant organisation organisation seeking recognition
2: Section 8(1)(b) enter into funding agreements with fund
3: Section 8(1) Commission may Minister may
9: Expiry and cancellation of recognition
1: Section 9(3) Commission Minister
2: Section 9(3)
ab: if the circumstances in subsection (3A) apply; or.
3: Section 9
3A: The circumstances referred to in subsection (3)(ab) are that—
a: the Commission has issued a notice to the organisation, in accordance with subsection (3B), stating that it considers that the organisation's performance is inadequate because it is not meeting 1 or more of the requirements under section 6(a) to (d)
b: the period of time specified in the notice within which the organisation must improve its performance has elapsed; and
c: the Commission is satisfied that the organisation's performance continues to be inadequate for the reason specified in the notice.
3B: A notice under subsection (3A) must—
a: be in writing; and
b: specify—
i: the areas in which the Commission considers the organisation's performance to be inadequate, with reference to the requirements under section 6(a) to (d)
ii: what actions that the organisation should take to improve its performance; and
iii: the period, which must be a reasonable period, within which the organisation must improve its performance; and
iv: the fact that the Commission may cancel the organisation's recognition, under subsection (3)(ab), if it fails to improve its performance within that period.
4: Section 9
4: Nothing in this section prevents an organisation whose recognition has expired under subsection (1) or subsection (2), or been cancelled under subsection (3)(a) or (ab), from seeking recognition in accordance with section 5 section 8(1)
5: Section 9(3A) Commission Minister
6: Section 9(3A)(a) it considers he or she considers
7: Section 9(3B) Commission Minister
10: Board may agree with industry training organisation to fund setting of standards and administration of training
1: Section 10(1)
c: provide leadership within the industry on matters relating to skill and training needs by—
i: identifying current and future skill needs; and
ii: developing strategic training plans to assist the industry to meet those needs; and
iii: promoting training that will meet those needs to employers and employees; and
d: develop arrangements for the collective representation of employees in the governance of the organisation; and
e: receive funding from the Commission for the purpose.
2: Section 10
2A: The Commission may enter into a written agreement with an industry training organisation (or 2 or more industry training organisations) providing for the organisation (or organisations) to manage the delivery of industry training to employees of a particular employer, and to receive funding from the Commission for that purpose, even if the employer is not part of the industry specified in the Gazette section 5
a: the employer has applied to the Commission in writing for industry training to be managed by the industry training organisation; and
b: the Commission is satisfied that the employer's application should be granted because either—
i: the industry training organisation that manages training for the employer's industry does not have the capacity to provide a satisfactory service to the employer; or
ii: the employer faces significant administrative and compliance costs (but not taking into account the cost of any training levies) because its training needs are covered by more than 1 industry training organisation; and
c: the Commission is satisfied that the industry training organisation is capable of managing delivery of industry training that will enable the employees of the employer to attain the skill standards applicable in the industry to which the training relates.
11: New sections 10 and 10A substituted
The principal Act is amended by repealing section 10
10: Industry training organisation's profile must identify activities for which it seeks funding
1: An industry training organisation that seeks funding under section 159ZC of the Education Act 1989
a: prepare a charter in accordance with section 159O of the Education Act 1989 section 159P
b: prepare a profile (or a combined profile if 2 or more organisations seek the funding) that identifies the activity or activities set out in subsection (2) for which the funding is sought.
2: The activities are—
a: setting skill standards for the industry (or industries); and
b: developing arrangements for the delivery (not being delivery by the organisation itself or organisations themselves) of industry training intended to enable trainees to attain those standards, including arrangements for—
i: monitoring the training to ensure that it enables trainees to attain those standards; and
ii: assessing trainees and the extent to which they have in fact attained those standards; and
c: making arrangements for the delivery (not being delivery by the organisation itself or organisations themselves) of industry training that will enable trainees to attain skill standards previously set by the organisation (or organisations) and registered by the qualifications authority, including arrangements accepted by the qualifications authority for—
i: monitoring the training to ensure that it enables trainees to attain those standards; and
ii: assessing trainees and the extent to which they have in fact attained those standards; and
d: making arrangements for the delivery (not being delivery by the organisation itself or organisations themselves) of industry training under apprenticeship contracts, technicians' contracts, or programmes of industry training recognised under section 18(a)
i: monitoring the training to ensure that it enables trainees to attain the levels of skill intended; and
ii: assessing trainees and the extent to which they have in fact attained those levels of skill; and
e: providing leadership within the industry on matters relating to skill and training needs by—
i: identifying current and future skill needs; and
ii: developing strategic training plans to assist the industry to meet those needs; and
iii: promoting training that will meet those needs to employers and employees; and
f: developing arrangements for the collective representation of employees in the governance of the organisation.
3: Every profile of an industry training organisation, or combined profile of 2 or more industry training organisations, must—
a: specify agreed levels of performance for the industry training organisation or organisations to which the profile relates; and
b: provide for the variation, suspension, and termination of funding if those levels of performance are not achieved.
4: Nothing in this section limits any other requirement as to the content and form of profiles that may be notified by the Commission under section 159X of the Education Act 1989
10A: Power to fund if employer switches industry training organisation
The Commission may approve, for funding purposes, the profile of an industry training organisation under which it seeks to manage the delivery of industry training to the employees of a particular employer who is not part of the industry specified in the Gazette section 5
a: that employer has applied to the Commission in writing for industry training to be managed by the industry training organisation; and
b: the Commission is satisfied that the employer's application should be granted because either—
i: the industry training organisation that manages training for the employer's industry does not have the capacity to provide a satisfactory service to the employer; or
ii: the employer faces significant administrative and compliance costs (but not taking into account the cost of any training levies) because its training needs are covered by more than 1 industry training organisation; and
c: the Commission is satisfied that the industry training organisation is capable of managing delivery of industry training that will enable the employees of the employer to attain the skill standards applicable in the industry to which the training relates.
12: New section 11 substituted
The principal Act is amended by repealing section 11
11: Matters to which Commission must have regard in determining whether to approve profile for funding purposes
In determining whether to approve an industry training organisation's profile, or a part of its profile, for funding purposes, the Commission must have regard to the following matters:
a: the amount of training to which it relates, and the likely number of trainees to be trained in accordance with it; and
b: the desirability of introducing into the organisation's industry (or the organisations' industries) skills (whether new skills or enhanced existing skills) likely to increase its (or their) international competitiveness; and
c: the desirability of extending industry training to industries, or areas of any industry (or industries), where industry training linked to nationally recognised qualifications has not traditionally been available; and
d: the desirability of extending industry training to people of a kind or description specified in the Commission's statement of intent as people to whom industry training linked to nationally recognised qualifications has not traditionally been available (whether within any industry or industries, or generally).
13: Section 12 repealed
Section 12
14: Additional functions of Commission
Section 13
f: to exercise the powers and perform the functions of the Commission under Part 5
15: Transitional provision relating to recognition
An industry training organisation that, immediately before the commencement of this section, was recognised or provisionally recognised, continues to be recognised or provisionally recognised after the commencement of this section until that recognition expires or is cancelled in accordance with section 9
16: New Part 5 inserted
The principal Act is amended by inserting, after section 23
5: Training levies
24: Purpose
The purpose of this Part is to enable the making of Orders in Council imposing a training levy on the members of an industry, payable to an industry training organisation, if there is sufficient support for the imposition of that levy following a ballot of those members.
25: Interpretation
For the purposes of this Part,— ballot section 27(1)(a) closing date section 36(b) levy group member of an industry qualifying member, in relation to a levy group, means a member who does not have a certificate of exemption under section 40 relevant industry Imposition of levy
26: Governor-General may impose levy
1: The Governor-General may, on the recommendation of the Minister, by Order in Council, impose a levy on qualifying members of a levy group, payable to an industry training organisation.
2: The Minister must not recommend the making of an Order in Council under subsection (1) unless the Minister is satisfied of the matters in section 27
3: Under a levy order under subsection (1), a levy may be payable to—
a: 1 industry training organisation by all qualifying members of the industry that is covered by that organisation; or
b: 1 industry training organisation by all qualifying members of a specific industry that is within the range of industries covered by that industry training organisation; or
c: more than 1 industry training organisation, jointly, by all qualifying members of an industry that is covered by those industry training organisations.
4: Every levy order is a regulation for the purposes of the Regulations (Disallowance) Act 1989
27: Restrictions on making of levy orders
1: The Minister must not recommend the making of a levy order unless he or she is satisfied that—
a: the industry training organisation to which the levy will be payable has, within the previous 12 months, balloted all known members of the levy group, in accordance with sections 31 to 38
b: at least 60% of the ballot papers distributed were validly completed and returned to the independent returning officer conducting the ballot, before the closing date; and
c: out of those ballot papers validly completed and returned,—
i: more than 60% of the total supported the imposition of the levy; and
ii: more than 60%, weighted according to the size of the industry member that returned the ballot paper (calculated at the date that the ballot closed and on the same basis as the levy is proposed to be charged, as set out in the ballot paper), supported the imposition of the levy; and
d: the details specified in the order do not differ in any material way from those specified in the ballot paper; and
e: the details specified in the order are acceptable to the Minister; and
f: the industry training organisation has or will have in place adequate systems for accounting to qualifying members of the levy group for the expenditure of levy funds; and
g: all other relevant matters known to the Minister have been properly considered.
2: When considering the matters in subsection (1), the Minister must consult with the Commission and may consult with any other persons the Minister considers appropriate.
28: Matters to be specified in levy orders
Every levy order must specify the matters set out in Schedule 4
29: Purposes for which levy may be required
1: A levy order must specify the purposes for which levy funds are to be used.
2: A levy order may also specify any purpose or purposes for which no amount of levy may be used.
3: In specifying how levy funds are to be used, a levy order may specify 1 or more purposes that will benefit the levy group as a whole and that are related to meeting the costs (including infrastructure and administration costs) associated with—
a: designing qualifications and setting skill standards for the relevant industry; and
b: providing leadership in the relevant industry in matters relating to skill and training needs by identifying present and future skill needs and promoting training to meet those needs.
4: No levy order may specify a purpose for which levy funds may be used that is related to—
a: meeting the costs of arranging delivery of industry training; or
b: undertaking any commercial or trading activity; or
c: any matter that directly benefits 1 or more individual members of the levy group, as opposed to generally benefiting the relevant industry as a whole.
5: Nothing in subsection (4)(b) prevents an industry training organisation from—
a: using any part of a levy to publish or sell any educational, informative, or promotional material (whether or not at a profit); or
b: investing any part of a levy pending its expenditure.
30: Levy order may require provision of information
A levy order may require qualifying members of the levy group to provide information to the industry training organisation, or some other person or body, for the purpose of enabling or assisting the determination of the amount of levy payable. Ballots
31: Independent returning officer must conduct ballot
A ballot must be conducted by an independent returning officer appointed by the industry training organisation and approved by the Minister.
32: Industry training organisation must identify potential members of levy group
1: An industry training organisation that proposes to impose a levy must take reasonable steps to ensure that it identifies all potential members of the levy group, including—
a: obtaining from that organisation's records, and from records that may be available from other organisations, information that is able to be used to identify potential members; and
b: giving adequate notice of the ballot in public newspapers and industry-specific publications, and inviting members of the relevant industry to register to receive information about the ballot and ballot papers.
2: After satisfying the requirements of subsection (1), the industry training organisation must provide to the independent returning officer who is administering the ballot a list of all potential members of the levy group of whom it is aware.
33: Returning officer must notify potential members of levy group
1: The returning officer must give notice of the ballot to—
a: every person named on the list of potential members of the levy group provided by the industry training organisation under section 32(2)
b: any other person whom the independent returning officer considers may be a member of the levy group.
2: The notice under subsection (1) must advise the person about the ballot and must state—
a: the description of the industry that is intended to be covered by the proposed levy order; and
b: that the returning officer considers that the person is or may be a member of that industry; and
c: that membership of the industry means that the person—
i: is entitled to participate in the ballot; and
ii: will be required to pay the levy if there is sufficient support for it in the ballot and the levy order is made; and
d: that the person must notify the returning officer if the person disputes that he or she or it is a member of the industry intended to be covered by the proposed levy order (a coverage dispute
e: the date by which that notification of a coverage dispute must be received.
34: Commission resolves coverage disputes
If the returning officer is notified by a person under section 33(2)(d) section 49
35: Population to be balloted
As soon as practicable after all coverage disputes have been finally determined (including any appeals under section 50(2)
36: Requirements of ballot papers
A ballot paper must state—
a: the address to which ballot papers must be returned; and
b: the date by which ballot papers must be returned; and
c: full information on the nature of the levy power being sought, including all the matters listed in Schedule 4
37: Returning officer must count votes
The returning officer must collect all validly completed ballot papers received by him or her at the closing date and calculate—
a: the proportion of the total number of ballot papers distributed by him or her under section 35
b: the proportion of the validly completed ballot papers received by him or her at the closing date that are in favour of the proposal to impose the levy; and
c: the proportion of the validly completed ballot papers received by him or her at the closing date that are in favour of the proposal to impose the levy if the votes are weighted according to the size of the member of the industry that returned the ballot paper (calculated at the date that the ballot closed and on the same basis as the levy is proposed to be charged as set out in the ballot paper).
38: Returning officer must keep ballot papers, etc
The returning officer must take all reasonable steps to ensure that all ballot papers, envelopes, lists, and other documents used in connection with a ballot conducted under this Part are preserved and kept for a period of 1 year after the completion of the ballot. Collection of levy
39: Levy is payable by qualifying members to industry training organisation
If a levy order is made, the levy specified in the order is payable by every qualifying member of the levy group to the industry training organisation or organisations named in the levy order.
40: Certificate of exemption
1: The chief executive of the Commission may issue a certificate of exemption from payment of a levy to a member of the relevant industry who—
a: was a member of the industry at the time of the ballot held in relation to that levy; and
b: was, through no fault or neglect on that person's part, not included in the ballot.
2: The chief executive may revoke a certificate of exemption if—
a: the person to whom it has been issued agrees; or
b: it was issued in error.
41: Method of collecting levy
1: An industry training organisation may collect levies directly from qualifying members of the levy group or by using a collection agent specified in the levy order in accordance with section 42
2: An industry training organisation may recover levies due from any qualifying member of the levy group—
a: by deducting the amount due from any amount the organisation owes that qualifying member; or
b: as a debt due to the organisation in any court of competent jurisdiction.
42: Levy order may provide for collection by agent
1: A levy order may specify persons, other than the persons who are primarily responsible for paying the levy, who must collect levy money due from qualifying members and pay it to the industry training organisation.
2: If a levy order specifies a person who must act as a collection agent under subsection (1)
43: Collection of levy if person switches industry training organisation
1: A person who is a qualifying member of an industry must continue to pay any levy that is payable to the industry training organisation or organisations that cover members of that industry (the original organisation section 10(2A) new organisation
2: If a person must pay a levy to its original organisation under subsection (1),—
a: the person does not have to pay a levy to the new organisation as a result only of the new organisation managing the person's training; but
b: if the person was obliged to pay a levy to the new organisation before the employer's application was granted, the employer must continue to pay the levy. Duties of industry training organisations and others in relation to levies
44: Levy funds must be kept in separate bank accounts and used only for authorised purposes
1: An industry training organisation that receives a levy under a levy order must open 1 or more bank accounts for the purpose of the levy and must use the account or those accounts for the following purposes only:
a: the deposit of amounts of levy paid or recovered; and
b: making payments out of levy funds.
2: Only people expressly authorised by the organisation may operate the account or those accounts.
3: No money may be paid out of the account or those accounts except for a purpose authorised in the levy order.
45: Duty to keep records
An industry training organisation that receives a levy must ensure that accurate and up-to-date records are kept of—
a: the names of all members of the levy group from whom the levy has been collected or recovered; and
b: the amount of the levy collected or recovered from those members; and
c: the names of all members of the levy group who are or may be liable to pay the levy but have not done so; and
d: the use to which the levy funds have been put.
46: Duty to provide annual report
1: As soon as is practicable after the end of a financial year during which a levy has been paid to an industry training organisation under a levy order, the organisation—
a: must prepare, in respect of that year, financial statements in accordance with generally accepted accounting practice; and
b: must include in the financial statements required by paragraph (a) all the necessary information to explain—
i: the balance of the levy fund; and
ii: the movements in the levy fund over the course of the year, including receipts of money collected and payments of money made under the levy order; and
iii: the use of assets acquired or built up with or out of money received under the levy order.
2: The organisation must ensure that the financial statements prepared under subsection (1) are audited within 90 days of the end of that financial year.
3: Financial statements prepared under subsection (1) must be included in the organisation's annual report for that year.
4: An industry training organisation that is required by subsection (3)
5: Despite subsection (4), if an enactment other than this Act requires an industry training organisation to give a Minister a copy of its annual report and requires the Minister to present a copy to the House of Representatives, that organisation must, to the extent that the enactment and subsection (4) impose different requirements, comply with the enactment and not with subsection (4).
6: An industry training organisation that is required by subsection (3)
47: Duty to protect commercially sensitive information
Every person who receives commercially sensitive information for the purposes of carrying out a function or activity under this Part, or under a levy order, must take reasonable steps to protect that information. Disputes
48: Arbitration or mediation system must be established
1: An industry training organisation that receives a levy under a levy order must establish a method of arbitration or mediation in the case of disputes as to—
a: whether a person was included in the ballot relating to that levy; and
b: whether a person has paid the levy; and
c: the amount of levy payable; and
d: any other matter relating to the levy, except disputes about whether a person is within the levy group.
2: Details of the arbitration or mediation system must be specified in the levy order, including—
a: the method of appointment of arbitrators or mediators; and
b: the procedures to be followed by arbitrators or mediators; and
c: the remuneration of arbitrators or mediators; and
d: the payment of costs in relation to arbitration or mediation; and
e: any other matters relating to the resolution of disputes.
49: Disputes about coverage
1: If there is a dispute about whether a person is within a levy group, whether before or after the ballot, the dispute must be referred to the Commission, which must determine the matter.
2: The industry training organisation that is proposing to impose a levy or, if a levy order has been made, that is responsible for administering the levy must pay the reasonable costs of the Commission for determining disputes.
50: Appeals to District Court
1: If a dispute is unresolved following arbitration or mediation in accordance with the method specified in the levy order, or if a party wishes to appeal a decision of an arbitrator or mediator, the dispute may be referred, or the decision may be appealed, to a District Court.
2: A determination by the Commission under section 49
3: An appeal under subsection (2) may be made to a District Court by the person disputing membership of the levy group or by the industry training organisation that is proposing to impose, or responsible for administering, the levy. Confirmation and expiry of orders
51: Orders must be confirmed
1: Subsection (2) applies to a levy order that is made on or after 1 January and before 1 July in any year, and that—
a: has not been revoked with effect on or before 1 July in the next year; and
b: has not ceased, and will not cease, to have effect on or before 1 July in the next year by virtue of the Regulations (Disallowance) Act 1989
2: If subsection (1) applies to a levy order, the order is deemed to be revoked with the close of 30 June in that next year unless it has been confirmed by an Act of Parliament passed on or before that day.
3: Subsection (4) applies to a levy order that is made after 30 June and on or before 31 December in any year, and that—
a: has not been revoked with effect on or before 1 January in the year after the next year; and
b: has not ceased, and will not cease, to have effect on or before 1 January in the year after the next year by virtue of the Regulations (Disallowance) Act 1989
4: If subsection (3) applies to a levy order, the order is deemed to be revoked with the close of 31 December in the year after the year in which it was made unless it has been confirmed by an Act of Parliament passed on or before that day.
5: The Minister on whose recommendation a levy order was made must, by notice published in the Gazette
a: revoked; or
b: disallowed under the Regulations (Disallowance) Act 1989
c: confirmed by an Act of Parliament.
52: Expiry of levy orders
1: A levy order expires 5 years after the day on which it was made unless it is sooner—
a: revoked; or
b: disallowed under the Regulations (Disallowance) Act 1989
2: A levy order is deemed to be revoked if the industry training organisation responsible for administering the levy ceases to be recognised.
17: Collection of levy if person switches industry training organisation
Section 43 10(2A) 10A
18: Part 4 repealed
Part IV
19: New Schedule 4 inserted
The principal Act is amended by inserting the Schedule 4 Schedule 1
20: Consequential amendments to principal Act
The principal Act is consequentially amended in the manner set out in Schedule 2