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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN TECHNICAL COLLEGES (FLEXIBILITY IN ACHIEVING
AUSTRALIA'S SKILLS NEEDS) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Vocational and Technical Education
the Honourable Gary Hardgrave MP)
AUSTRALIAN TECHNICAL COLLEGES (FLEXIBILITY IN ACHIEVING
AUSTRALIA'S SKILLS NEEDS) BILL 2005
OUTLINE
The purpose of the Bill is to implement the Government's election commitment to establish
Australian Technical Colleges for years 11 and 12 students in 24 regions throughout Australia.
These Colleges will offer high quality training and facilities that will further strengthen Australia's
vocational education and training system and promote pride and excellence in the acquisition of
trade skills. Establishment of these Colleges is a vital step in addressing the skills needs that
Australia is experiencing in a number of traditional nation building trades.
The Bill provides for funding agreements between the Australian Government and the Colleges
that can be tailored to the needs and challenges of each region. While some governance and
administrative requirements will be set as standard conditions in each funding agreement, the Bill
does not prescribe any particular model of operation. This means that each College will be able to
operate in a manner that best meets the needs of industry and students in the region in which it is
established.
The Bill secures supplementary funding to support the Australian Technical College initiative.
Appropriations totalling $343.6 million over five years will provide for the allocation of funds to
the Colleges to support infrastructure development as well as the additional costs associated with
the delivery of the specialised services that the Colleges will provide. The Bill is complementary
to the Schools Assistance (Learning Together-Achievement Through Choice and Opportunity)
Act 2004 through which the Colleges may receive general recurrent grant funding, in addition to
the supplementary funding.
The supplementary funding will enable the Colleges to have access to high quality facilities and
offer appealing working conditions through Australian Workplace Agreements to attract and
retain the best available staff. Colleges will have a governing body, chaired by a local business
person and consisting of local industry and community representatives that will ensure that the
skills taught to students will be directly relevant to the needs of local industry. Each College
which is a non-government school will have to be registered as a school in the State or Territory
in which it operates and accredited to deliver curriculum leading to achievement of the senior
secondary certificate of education. These features will allow the Colleges to establish themselves
as centres of excellence and raise the profile and status of vocational pathways in schools.
As with other school based programs, the legislative base for the Australian Technical Colleges
will be underpinned by funding agreements with either State or Territory Governments or the
ATC authority of the College. The funding agreements will contain the conditions under which
funding will be allocated to Colleges and include a schedule of the payments to be made to each
College over the term of the agreement. Ongoing funding may also be contingent on Colleges
meeting specified eligibility criteria.
This Bill includes, as a condition of funding, a requirement for all Colleges to provide reports
covering financial expenditure and performance outcomes. This information, to be specified in
the funding agreement, will include such information as the vocational education and training
options being offered, academic outcomes, school leaver destinations and retention rates.
FINANCIAL IMPACT
The Bill provides for an appropriation of $343.6 million over the period 2005 to 2009 to support
the establishment and operation of the Colleges.
AUSTRALIAN TECHNICAL COLLEGES (FLEXIBILITY IN ACHIEVING
AUSTRALIA'S SKILLS NEEDS) BILL 2005
Part 1--Preliminary
Clause 1 - Short title
Provides for the Act to be cited as the Australian Technical Colleges (Flexibility in Achieving
Australia's Skills Needs) Act 2005.
Clause 2 - Commencement
Provides for the Act to commence on the day on which it receives the Royal Assent.
Clause 3 - Definitions
Contains definitions of the terms and expressions used in the Act.*
*Note: The clauses in the Bill will become sections of the Act on Royal assent. In this
Explanatory Memorandum only the first reference to a clause or subclause uses that terminology.
Subsequent references use the terms "section" or "subsection" as appropriate.
Clause 4 Principal object of Act
Provides that the principal object of the Act is to provide for the establishment and operation of
Australian Technical Colleges in order to provide trade skills training, education and mentoring
for young Australians through:
promoting pride and excellence in trade skills training for young people; and
providing skills and education in a flexible learning environment to build a solid basis for
secure and rewarding careers; and
adopting a new industry-led approach to providing education and training in partnership
with local communities; and
establishing an industry-led governing council for each Australian Technical College that
is to set out strategic directions and performance objectives for the College and select
the principal of the College; and
providing trade training that is relevant to industry and that leads to nationally
recognised qualifications through School-Based New Apprenticeships, and academic
and vocational education that is relevant to trade careers and that leads to a Year 12
Certificate; and
ensuring the autonomy of the principal of each Australian Technical College to manage
the College, to select the best staff and to meet the targets and performance measures
set by the governing council of the College; and
encouraging an environment of freedom and reward for effort for the staff of Australian
Technical Colleges through flexible employment arrangements which provide rewards
linked to excellent performance.
Subsection 7(5) of the Act provides that the Minister must have regard to this object in
determining eligibility criteria.
Part 2--General provisions relating to grants
Division 1--Agreements
Clause 5 Minister may make agreements
Provides that the Minister may (on behalf of the Commonwealth) make an agreement under
Division 1 of Part 2.
Clause 6 Agreements with States for ATCs
Provides for the form of agreements between the Commonwealth and States for the establishment
or operation of Australian Technical Colleges (ATCs) as government schools.
Subclause 6(1) has the effect of providing that the Minister must not authorise a payment of
financial assistance under the Act to a State for the establishment or operation of an ATC as a
government school unless a written agreement is in force between the State and the
Commonwealth that sets out the following conditions:
a condition that the payments received under the agreement be spent for the
establishment or operation of the ATC;
the conditions mentioned in Division 2 of Part 2 (other than section 11).
Subclause 6(2) provides that an agreement may also specify other conditions and that the
payments under the Act are made on those conditions.
Clause 7 Agreements with ATC authorities for ATCs
Provides for the form of agreements between the Commonwealth and ATC authorities (as defined
in section 3) for the establishment or operation of ATCs as non-government schools.
Subclause 7(1) has the effect of providing that the Minister may determine that a body is the ATC
authority for an ATC.
Subclause 7(2) has the effect of providing that the Minister must not authorise a payment of
financial assistance under the Act to an ATC authority for the establishment or operation of an
ATC as a non-government school unless a written agreement is in force between the ATC
authority and the Commonwealth that sets out the following conditions:
either a condition that (while the agreement is in force) the ATC is a school of a kind in
respect of which financial assistance is payable under Part 6 of the Schools Assistance
(Learning Together-Achievement Through Choice and Opportunity) Act 2004 (the
Schools Assistance Act); or that if, when the agreement commences financial assistance
is not payable, a condition that the ATC is a school of a kind in respect of which
financial assistance will be payable under that Part by the date specified in the agreement
and for the remainder of the period that the agreement is in force;
a condition that the payments received under the agreement be spent for the
establishment or operation of the ATC; and
the conditions mentioned in Division 2 of Part 2 (other than subsection 8(2)).
Subclause 7(3) has the effect of providing that an agreement may also specify other conditions
and that the payments under the Act are made on those conditions.
Subclause 7(4) has the effect of providing that, in addition to the conditions specified in the
agreement, the Minister may determine eligibility criteria for the payment of financial assistance
under the Act to the ATC authority.
Subclause 7(5) has the effect of providing that, in determining eligibility criteria, the Minister must
have regard to the object of the Act.
Division 2--Other conditions of agreements
Clause 8 Certifying that payments duly spent or committed
Subclause 8(1) has the effect of providing that there must be a condition in Part 2 agreements that
the other party to the agreement gives the Secretary of the Department a certificate by a qualified
accountant certifying that the payments to the party have been spent (or committed to be spent)
for the purposes specified in the agreement.
Subclause 8(2) has the effect of providing that if the other party to the Part 2 agreement is a State
there must be a condition that, if not all the payments were spent (or committed to be spent) by
the State for the purposes specified in the agreement, the State will (if the Minister so determines)
pay the Commonwealth the amount stated in the determination within a period determined by the
Minister.
Subclause 8(3) has the effect of providing that the amount stated in a subsection 8(2)
determination must not exceed the sum of the unspent or uncommitted amounts.
Clause 9 Reports about financial expenditure
Has the effect of providing that there must be a condition in Part 2 agreements that the other
party to the agreement gives the Minister reports about the expenditure of financial assistance
under the Act containing the kind of information about assistance to that party that the Minister
thinks appropriate.
Clause 10 Reporting on performance
Has the effect of providing that there must be a condition in Part 2 agreements that the other
party to the agreement must comply with the performance reporting requirements mentioned in
the agreement.
Clause 11 Condition about access to accounts etc. of ATC authority
Subclause 11(1) has the effect of providing that, if the other party to a Part 2 agreement is an
ATC authority, there must be a condition in the agreement that the ATC authority allow a person
authorised in writing by the Minister for the purpose (and with such help as the person requires)
to:
Have full and free access (at all reasonable times) to accounts, records and other
documents of the ATC authority relating to information that the ATC authority is
required under the agreement to give to the Minister; and
To take extracts from, or make copies of, any such accounts, records and documents.
Subclause 11(2) provides that the authorised person must give the ATC authority reasonable
notice of his/her intention to obtain the form of access described in paragraph 11(1)(a) [dot point
1 above].
Clause 12 Conditions about reporting
Has the effect of providing that there must be a condition in Part 2 agreements that the other
party to the agreement give the Minister or the Secretary of the Department (as specified in this
Act or in the agreement) at the times (and in the manner) required by the agreement, the reports
or certificates mentioned in sections 8, 9 and 10 and any other reports of a kind or kinds specified
in the agreement.
Clause 13 Condition of agreement not fulfilled
Subclause 13(1) has the effect of providing that there must be a condition in an agreement with an
ATC authority that there will be certain consequences if certain conditions in the agreement are
not met. Paragraphs 13(1)(a) and (b) set out the breach of conditions which must be provided for
while paragraphs 13(1)(c), (d) and (e) set out the consequences which must be provided for in the
agreement for such breaches.
Breaches of conditions which must be provided for
Paragraph 13(1)(a) has the effect of providing that one of the breaches of conditions which must
be provided for is a breach of the condition in paragraph 7(2)(a) [dot point 1 in the explanation of
subclause 7(2)].
Paragraph 13(1)(b) has the effect of providing that the other breach of conditions which must be
provided for is the other party to the agreement failing to fulfil any other condition of the
agreement by the date specified in the agreement (or within such further period as the Minister
allows).
Consequences which must be provided for in the agreement for such breaches
Paragraphs 13(1)(c), (d) and (e) have the effect of providing that there must be a condition that,
in the event of a breach described in paragraph 13(1)(a) or (b), the other party will (if the Minister
so determines) repay to the Commonwealth the amount stated in the determination. If the other
party does not do so, the Minister may make a determination reducing one or more payments of
financial assistance under the Act to the other party and the Minister may delay the making of any
further payment under the Act to the other party until the conditions mentioned in paragraphs
13(1)(a) and (b) are fulfilled.
Subclause 13(2) has the effect of providing that the amount mentioned in paragraph 13(1)(c) [the
amount stated in the determination by the Minister] must not be more than:
if the other party is a State, the sum of the payments mentioned in paragraph 6(1)(a);
and
if the other party is an ATC authority, the sum of the payments mentioned in paragraph
7(2)(b).
Clause 14 Overpayments
Provides that there must be a condition that, if the amount of financial assistance paid under the
Act to the other party to the Part 2 agreement exceeds the amount that was properly authorised
to be paid, the other party will (if the Minister so determines) pay the Commonwealth an amount
(not more than the excess) stated in the determination.
Division 3--Other matters
Clause 15 Minister's power if amount repayable
Provides that the Minister may make a determination reducing an amount that is authorised to be
paid under the Act to the other party to a Part 2 agreement if (under a condition of the
agreement) the Minister determines that the other party is to pay an amount to the
Commonwealth and all or part of that amount remains unpaid. The amount of the reduction must
not be more than the amount unpaid.
Clause 16 Amount payable to the Commonwealth is a debt
Subclause 16(1) has the effect of providing that an amount payable by a State to the
Commonwealth under the Act (or under a Part 2 agreement) is a debt due by the State to the
Commonwealth.
Subclause 16(2) has the effect of providing that an amount payable by an ATC authority to the
Commonwealth under the Act (or a Part 2 agreement) is a debt due by the ATC authority to the
Commonwealth.
Clause 17 Determinations requiring repayments
Provides that, if the Minister is considering whether to make a determination under paragraph
13(1)(c) or section 14, he/she must take into account all relevant matters, including whether the
other party to the Part 2 agreement gave all relevant information to the Commonwealth before the
grant of financial assistance was made.
Part 3--Payments
Clause 18 Minister may make determinations authorising payments
Subclause 18(1) has the effect of providing that the Minister may make a determination
authorising payment of financial assistance under the Act to a State or an ATC authority.
Subclause 18(2) has the effect of providing that the Minister must not make a determination
authorising payment of financial assistance to an ATC authority if the Minister has determined
eligibility criteria for the payment of financial assistance under the Act to the ATC authority for
the ATC concerned and the Minister is satisfied that the eligibility criteria are not fulfilled.
Subclause 18(3) has the effect of providing that subsection 18(2) does not apply if the Minister is
satisfied that (in the circumstances) the payment should be authorised despite the non fulfilment of
the eligibility criteria.
Subclause 18(4) creates a table setting out the maximum aggregate amount which the Minister
may determine under subsection 18(1) for the years 2005, 2006, 2007, 2008 and 2009. The table
is divided into two columns. Column 1 lists each year and column 2 the maximum aggregate
amount which may be determined for each year.
Clause 19 Payments subject to conditions
Provides that a payment under the Act is subject to the conditions set out in the agreement for the
payment.
Clause 20 Minister may refuse to authorise, or delay, payment in certain circumstances
Subclause 20(1) provides that the Minister may refuse to authorise a payment to an ATC
authority under the Act for an ATC that is a non-government school in a State during any period
when the State Minister does not recognise the ATC as a school.
Subclause 20(2) has the effect of providing that the Minister may refuse to authorise (or may
delay) a payment to an ATC authority that is a body corporate if it is being wound up, a receiver
has been appointed in respect of its property or its affairs are under the control of a manager.
Subclause 20(3) has the effect of providing that the Minister may refuse to authorise (or may
delay) a payment to an ATC authority that is not a body corporate if the Minister considers that
its liabilities are substantially greater than its assets or it is (and is likely to continue for a
substantial period to be) unable to pay its debts as and when they fall due for payment.
Part 4--Miscellaneous
Clause 21 Minister may determine amounts and times of payment of financial assistance
Provides that the amounts of financial assistance authorised to be paid under the Act are to be
paid in such a way (including payment by instalments) and at such times as the Minister
determines.
Clause 22 Payment reduced for false or misleading statement
Subclause 22(1) has the effect of providing that, if a person made a statement to the Minister, the
Secretary or an APS employee in the Department for the purposes of the Act (or an agreement
made under the Act) about a grant of financial assistance, the statement was false or misleading in
a material particular and, relying on the statement, a payment has been made under the Act to a
State or to an ATC authority of an amount that (in the Minister's opinion) exceeds the amount
that would have been authorised to be paid if the statement had not been false or misleading in a
material particular, then the Minister may make a determination reducing by the amount of the
excess any amount payable under this Act to the State or the ATC authority.
Subclause 22(2) provides that a determination under section 22 may take effect from a day before
the day on which the determination was made.
Clause 23 Appropriation
Has the effect of providing that amounts payable by the Commonwealth under the Act are payable
out of the Consolidated Revenue Fund, which is appropriated accordingly.
Clause 24 Determinations etc.
Proposed subsection 24(1) provides that a determination under the Act must be in writing.
Proposed subsection 24(2) has the effect of providing that (subject to subsection 22(2)) a
determination takes effect on the day stated in the determination or, if no day is stated, the day on
which it is made.
Proposed subsection 24(3) has the effect of providing that, if a provision of the Act refers to a
determination made (or other act or thing done by) the Minister and no other provision of the Act
expressly authorises the Minister to make such a determination (or do such an act or thing) then
this subsection authorises the Minister to do so.
Proposed subsection 24(4) provides that a determination under the Act is not a legislative
instrument. This provision is included to assist readers, as determinations made under the Act are
not legislative instruments within the meaning of section 5 of the Legislative Instruments Act
2003.
Clause 25 Delegation
Provides that the Minister may, by writing, delegate to the Secretary or an SES employee in the
Department all or any of the Minister's powers under the Act (or under an agreement mentioned
in the Act).
Clause 26 Regulations
Provides that the Governor-General may make regulations prescribing matters required or
permitted by the Act to be prescribed (or necessary or convenient to be prescribed) for carrying
out or giving effect to the Act.