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TAFE Institutes
TAFE INSTITUTES BILL 1998
EXPLANATORY NOTES
GENERAL OUTLINE
Short title of the Act
TAFE Institutes Act 1998
Objectives of the Act
The principal objective of the Act is to provide for the establishment and
management of TAFE institutes in the State of Queensland by:
· establishing TAFE institutes; and
· providing for the management of TAFE institutes; and
· providing a mechanism by which industry and the community
can have input into the strategic direction of TAFE institutes.
Reasons for the Bill
The operations of TAFE colleges are currently managed under the
Vocational Education, Training and Employment Act 1991 by the
Vocational Education, Training and Employment Corporation, which had
functions and powers in maintaining TAFE colleges. That Act also
provides the framework for the vocational education and training system in
Queensland, which includes the administration of structured training;
accreditation of courses; and the registration of training providers to offer
accredited training.
New legislation (Vocational Education and Training Act 1998) is being
introduced concurrently with this Act to implement a new and simplified
system for the development and delivery of vocational education and
training in Queensland. When proclaimed, the new legislation will repeal
the existing Act.
The Act will provide a framework for the management of TAFE
institutes and colleges. The main catalyst for the legislation is the dramatic
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change to the operating environment for TAFE since the current legislation
came into force. Since then, the rapid growth in the number of registered
training providers in Queensland has created a more competitive, client
driven training market with implications for TAFE Queensland. Over 1200
non-TAFE providers are now registered to deliver accredited courses while
the proportion of Commonwealth and State funds allocated by competitive
processes open to all registered training providers, has progressively
increased. Consequently, TAFE is increasingly required to compete on a
commercial basis to secure government funds.
The changed environment means that TAFE institutes require greater
business freedom in order to operate effectively in a competitive training
market. Enhanced local decision making, within a sound framework of
accountability, is required to expedite efficient client service which is
responsive to local needs.
Notwithstanding this, TAFE institutes, like other registered training
providers, will still be subject to the vocational education and training
legislation in so far as they operate within that system as training
organisations offering vocational education and training courses and
qualifications.
The need for the separation of the Government's roles with respect to
purchaser and provider of vocational education and training is also an
imperative for change. The Queensland Commission of Audit Report 1996,
recommended that the Government clearly separate and distinguish its role
as purchaser from its role as provider; provide funding for outputs or
results; and impose the strongest feasible framework of competition and
accountability. TAFE performs the Government's "provider" role in the
delivery of vocational education and training services. Even though TAFE
is administratively a separate entity within the Department of Training and
Industrial Relations, there is a need to further separate TAFE from the
purchaser, owner and funder roles performed by the Department.
Consistency with fundamental legislative principles
The provisions of the Bill are consistent with the fundamental legislative
principles provided for under the Legislative Standards Act 1993.
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Estimated cost for government implementation
Funds are available to establish, maintain and provide for the
management of TAFE institutes.
Consultation
Extensive consultation has taken place with stakeholders in the vocational
education and training system, primarily with respect to the proposed
introduction of a new and simplified system.
A Position Paper was forwarded to over 9,000 stakeholders in the
system involving employers, industry training advisory bodies, training
organisations (including TAFE colleges), group training schemes, industry
organisations and associations and unions. Advertisements inviting
submissions were placed in metropolitan and regional newspapers. 79
written submissions were received. Twenty public forums were held at
metropolitan and regional locations throughout the State.
A TAFE Institutes Bill was then drafted during 1997, and a Consultation
Draft of this Bill was widely circulated to stakeholders in November 1997,
together with a Consultation Draft of the Vocational Education and
Training Bill. The closing date for comments on the Consultation Draft was
6 February 1998.
A total of 52 written submissions were received on both draft Bills from
major stakeholders, including the Australian National Training Authority
(ANTA), employer organisations, unions, industry training advisory
bodies, group training schemes, training providers and government
departments. The majority of the responses related to the Vocational
Education and Training Bill. However, there were six submissions
focusing on the TAFE Institutes Bill, although other submissions made
some reference to it. An analysis of all submissions was carried out and
amendments were made where this was practicable.
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NOTES ON PROVISIONS
PART 1--PRELIMINARY
Short title
Clause 1 provides the short title for the legislation
Commencement
Clause 2 provides that the commencement date for provisions in the Act
will be proclaimed.
Objective of Act
Clause 3 sets out the objectives of the Act, namely providing for the
establishment and management of TAFE institutes, and for mechanisms
for industry and the community to have input into the strategic direction of
TAFE institutes.
Definitions--the dictionary
Clause 4 provides for a dictionary in the Schedule at the back of the Act.
The dictionary defines particular words.
PART 2--TAFE INSTITUTES
What is a TAFE Institute
Clause 5 defines a TAFE institute. In addition to providing vocational
education and training, an institute may also provide adult community
education or general education for students who would otherwise be at
school in years 11 and 12.
An institute may include colleges or campuses.
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Power to establish TAFE institutes
Clause 6 provides for the establishment of TAFE institutes, colleges and
campuses and the amalgamation of institutes or parts of institutes, by the
Minister. This clause also provides for the abolition or closure of an institute
or part of an institute, by the Minister.
PART 3--TAFE INSTITUTE BUSINESS BOARDS
Division 1--Application
Application
Clause 7 applies the provisions of this part to each TAFE Institute.
Division 2--The board
TAFE institute business boards
Clause 8 requires a TAFE institute business board for each institute.
Board's functions
Clause 9 provides for the functions of a board which are to :
· approve the institute's business plan and ensure it is consistent
with the TAFE institute's corporate plan;
· monitor implementation of the institute's business plan, budget
and policy guidelines issued by the chief executive;
· advise the institute director on industry, business and market
trends and on improving the institute's business performance;
· contribute to planning processes for the vocational education and
training system;
· consult and collaborate with other boards, institutes, the
Queensland Training Authority and the department in performing
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its functions;
· provide representation on institute committees when appropriate;
· monitor the outcomes of the institute's courses, programs and
services;
· foster cooperation with other institutes; and
· promote the institute and its services and report to the Minister on
the board's activities, the effectiveness of the board's advice and
decisions, or any other matter requested or initiated.
In addition to the specific functions above, the board has the power to do
whatever is necessary for the performance of its functions.
Board subject to Minister's directions
Clause 10 requires a board to comply with Ministerial direction
regarding policy, the performance of its functions and the exercise of its
powers. A board must disclose such directions in the Department's annual
report.
Division 3--Board membership
Composition of board
Clause 11 states that the Minister is to appoint board members
consisting of the institute's director and at least 7 (but no more than 10)
people who have:
· knowledge of or experience in:
-- business or commerce; and
-- vocational education, training and industry, or community
affairs; and
· the ability to contribute to the strategic direction of the institute.
The Minister is also to appoint a member of the board, other than the
institute's director, as chairperson. The appointed members must include at
least one college council chair if the institute includes 1 or more colleges for
which there is a college council. The Minister may appoint a member as
deputy chairperson of the board. The director cannot be the chairperson or
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deputy chairperson of the board.
Duration of appointment
Clause 12 states that the term of an appointment of a board member is
for up to 3 years.
Conditions of appointment
Clause 13 provides for the Minister to decide the conditions for which a
member holds office. (For example, conditions could include that an
appointed member be paid any reasonable expenses incurred in attending
meetings of the board.)
Vacancy in membership
Clause 14 provides that an appointed member's position on a board
becomes vacant if the member dies; resigns in writing to the Minister; or is
absent from 3 consecutive meetings without the board's leave or a
reasonable excuse.
In addition, the clause enables the Minister to terminate a member's
appointment if the member:
· acts improperly (for example, claims reimbursement of expenses
not incurred);
· becomes incapable of performing the required duties due to
mental or physical incapacity;
· is incompetent;
· is convicted of an indictable offence (eg. fraud) or an offence
against the Act (for example, discloses confidential information
without appropriate authorisation, or fails to disclose a conflict or
interest).
Division 4--Board meetings
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Times and places of meetings
Clause 15 provides for the board to hold meetings at times and places it
decides, but the chairperson or the Minister may call a meeting of the board
at any time.
A quorum will be a simple majority of members (for example if the
number of members is 9, the quorum will be 5).
A member of the board may participate in a meeting by way of
telephone, closed-circuit television or another means of communication. A
member who takes part in the meeting in this way, is regarded as being
present at the meeting.
Conducting meetings
Subclauses 16(1), (2) and (3) provide for the chairing of meetings. If the
chairperson is not present at a meeting, the deputy is to preside if one has
been appointed. If both the chairperson and deputy are not present, the
members present at the meeting are to choose a person to preside.
Subclause (4) and (5) provide for voting at meetings. Board decisions
are to be decided by a majority vote. Where voting is tied, the person
presiding at the meeting has a deciding vote.
Subclause (6) requires a board to keep a record of its minutes and its
decisions.
Subclause (7) states that notwithstanding the above provisions, the board
is empowered to conduct its meetings in the way that it considers
appropriate.
Disclosure of interests by member of board
Clause 17 requires a member of a board to disclose the nature of a direct
or indirect interest in a matter to be considered. This is particularly
important because TAFE institutes operate in a competitive training market.
A matter which must be disclosed may, for example, be where a
member stands to benefit directly or indirectly from a matter being
considered or the matter concerns a family member or business associate.
A penalty for non-compliance may apply. Where an interest is disclosed,
it must be recorded in the minutes.
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On the face of it, the reference to direct and indirect interest is undefined.
However, these words are used in a number of recent major Queensland
statutes and are based on court interpretations of the terms. To define them
would unnecessarily restrict their scope of operation because of the range of
interests which may arise.
Voting etc. by interested member of board
Clause 18 prohibits a member of a board from voting on a matter being
decided in which the member has a material personal interest. The member
must not be present while the matter is considered, or in any way participate
in any decision relating to the matter.
This provision will not apply in relation to a matter on which the board
has passed a resolution clearly stating that the board is satisfied the interest
is such that it should not disqualify the member from participating in the
discussion or voting on the matter.
A penalty for non-compliance applies.
Furthermore, the provision will not apply where a quorum would lapse if
a declaring member withdrew from the meeting, and the Minister has given
a prior direction in writing to proceed without a quorum.
The intention of the clause is to clearly restrict a member with a material
personal interest in a matter, from participating in the discussion and voting
on the matter at a meeting. In the majority of instances of conflict of
interest, the member concerned would declare the interest and withdraw
from the meeting while the issue is being discussed and voted on.
(Please note that comments concerning `direct and indirect interest' under
clause 17 apply equally to the use of the term `material personal interest' in
this clause.)
Division 5--Other provisions about the board
Committees
Clause 19 empowers a board, with the Minister's written approval, to
establish committees to help it to perform its functions. The Minister's prior
written approval is required for the appointment of a person to a committee.
However, the Minister's prior written approval is not required for
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committees of board members which the board may set up.
Institute to help board
Clause 20 requires an institute to give the board reasonable help in the
performance of its functions, eg. administrative assistance.
Report on board's activities
Clause 21 provides that a board must give a report on its operations to
the Minister within 3 months of the end of each financial year.
PART 4--COLLEGE COUNCILS
Application
Clause 22 states that this part only applies to institutes having one or
more colleges as part of it and that there is to be a council for the college as
declared by gazette.
Appointment of college councils
Clause 23 provides that there is to be a college council for each college
comprised of between 7 and 12 persons appointed by the Minister, who
must be members of the local community and have knowledge of, or
experience in, vocational education and training, or industry or community
affairs. One member must be an officer employed at the institute and
nominated by the institute director. One of the members other than the
departmental member must be appointed by the Minister as chairperson.
College council's functions
Clause 24 provides for the functions of a council. The functions are to:
· identify vocational education and training needs for the local
community and provide advice to the board on these;
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· report to the board on the effectiveness of the college in delivering
its services and any other matters of strategic importance; and
· to foster relationships with local business, advisory bodies and
community groups.
The council is to have regard to its position as part of the institute to
ensure that its functions are performed consistent with the institute's
business plan.
Duration and conditions of appointment
Clause 25 empowers the Minister to decide the term and the conditions
for the appointment of college council members.
Conducting council meetings
Clause 26 enables a college council to conduct its meetings in a way it
considers appropriate.
Institute to help council
Clause 27 requires an institute to give a college council reasonable help to
assist it in the performance of its functions.
PART 5--ADMINISTRATION
Development of corporate plan for TAFE Institutes
Clause 28 requires the chief executive to develop for the Minister's
approval, a plan which provides a framework for the strategic planning and
management of all of the TAFE institutes for a particular term. The chief
executive may develop a new corporate plan for the Minister's approval
even though the specified period on the original plan has not ended.
The Minister may require a plan to be amended, and also that it state the
services that must be provided by the institute.
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Chief executive's functions for TAFE institutes
Clause 29 outlines that the functions of the chief executive for TAFE
institutes are to include:
· ensuring the provision of vocational education and training
services;
· producing and selling products and services;
· preparing, publishing or licencing the use of various material
including literary work, computer software etc;
· commercially exploiting appropriate TAFE resources including
research or knowledge; and
· undertaking research and development.
Chief executive's powers for TAFE institutes
Clause 30 provides that under the Minister and as an agent of the State,
the chief executive has all the powers of the State necessary and desirable to
perform the chief executive's functions. Anything done by the chief
executive in the name of or for the State binds the State. The chief executive
may for example exercise the following powers:
· enter into agreements and contracts, including fixing seals to any
document;
· acquire and deal with property;
· accept gifts or bequests;
· create and administer trust funds;
· issue directions and guidelines for the performance of functions
related to TAFE Institutes;
· charge and fix terms for goods and services supplied;
· authorise an entity to carry out functions on the chief executive's
behalf.
(These powers were exercised by the chief executive as Corporation sole
under the repealed Act.)
The clause also provides that the chief executive has the powers given
under the Act, another Act or at common law, however, the chief
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executive's powers are subject to any restriction imposed by this Act or
another Act.
The terms "function", "law" and "restriction" are defined for the
purpose of this clause.
Delegations
Clause 31 allows the chief executive to delegate his/her powers to an
appropriately qualified officer of the department.
The term "appropriately qualified" is defined for the purposes of this
clause.
Committees
Clause 32 authorises the chief executive to establish committees to help
perform his/her functions.
Membership of other bodies
Clause 33 authorises the chief executive to become a member, or
manager of an entity, the objectives of which:
· relate to vocational education or training, adult community
education or post compulsory general education; or
· relate to research in these areas.
However, the chief executive may only become a member or manager of
an entity with the agreement of the entity's governing body. If the chief
executive is a member or manager of such an entity, he/she may also be a
member of the entity's governing body.
The clause also authorises the chief executive to incur expenditure for
contributions or other liabilities that membership of the entity entails.
"Chief executive" is defined for this clause as including a person with
written authority of the chief executive, but restrictions are placed on another
person exercising these powers, including a restriction on the incurring of
expenditure.
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Returns to be given as required
Clause 34 requires the chief executive to furnish to the Minister reports,
returns and information on a corporation in whose formation the chief
executive has participated; and an entity of which the chief executive is a
member or manager.
"Chief executive" is defined to include a person with written authority of
the chief executive.
Use of facilities and staff
Clause 35 empowers the chief executive to make arrangements with an
entity for the entity to use facilities and staff available to the chief executive.
For example, this provision will enable the chief executive to provide
institute facilities and other services to entities who may contract with the
institute for particular projects.
PART 6--MISCELLANEOUS
Protection from liability
Clause 36 provides protection from civil liability for a member of a
board or college council, the Minister or a departmental official, for an act or
omission, provided it is done honestly and without negligence. Instead, civil
liability prevented by this clause will attach to the State.
Duty to act honestly
Clause 37 states that a person exercising powers or performing functions
under the Act, must at all times act honestly. Further, a person must not use
information acquired in exercising a power or performing a function, to
directly or indirectly advantage the person or someone else, or disadvantage
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someone else. Failure to act honestly or to use information in this way are
offences against the Act and penalties apply.
Protection of confidentiality
Clause 38 requires that a person who acquires information in the course
of performing a function under the Act, must treat that information
confidentially and not to disclose it to anyone else. An offence is created for
breaching this provision and a penalty will apply.
However, the clause allows disclosure under clearly defined specific
circumstances, namely, for the purposes of the Act; with the authorisation
of the chief executive; as required by a court or tribunal for proceedings
before it; or as otherwise required by law.
Regulating vehicles on institute land
Clause 39 provides for the making of a regulation allowing a board to
erect signs on institute land to control the driving, parking or standing of
vehicles on institute land, and to make contravention of the directions on
these signs an offence.
Notices at entrances
Clause 40 provides that persons are taken to be aware of the
requirements regulating vehicles under clause 39, if a notice containing
information of an offence and the penalty for contravention is displayed at
each commonly used entrance to the TAFE institute, including at colleges
and campuses. This also applies if a person gains access by using another
entrance.
Trespass on TAFE institutes
Clause 41 restricts a person from entering or being on TAFE premises
without lawful authority or excuse. A penalty applies where this provision
is contravened.
An authorised officer is empowered to require the person found
trespassing to state their name and address, and if suspicious of the
authenticity of the response, to produce supporting evidence. An `authorised
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officer' includes a person authorised by the institute director or a police
officer.
It is an offence for a person not to comply with this requirement unless
they have a reasonable excuse, and a penalty may apply.
Proceeding for offences
Clause 42 authorises that proceedings for offences are to be instituted
under the Justices Act 1886 before an industrial magistrate and in a
summary way. This provision will enable any person (eg. an institute
director or officer) to commence proceedings for an offence against the Act.
Evidentiary provisions
Clause 43 provides that in a proceeding for an offence against the Act, it
is not necessary to prove the appointment or signature of the chief
executive, or statements of the chief executive concerning membership of
the board or land and premises of the institute.
The intention of this clause is to facilitate and save time in court
proceedings by not having to prove certain appointments etc.
Regulation-making power
Clause 44 provides that the Governor in Council may make regulations
as necessary under the Act. Issues specifically identified for coverage by
regulation are fees, creating offences and fixing a penalty. The maximum
penalty is 20 penalty units which is 50% of the maximum penalty under the
Act.
PART 7--TRANSITIONALS AND SAVINGS
PROVISIONS
Existing State colleges
Clause 45 continues in existence TAFE institutes, which may comprise
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colleges and campuses, which existed at the commencement of the Act.
Dissolution of State college councils
Clause 46 dissolves TAFE college councils in existence before
commencement of the Act and provides for members to go out of office.
These councils were appointed for administrative convenience. They will be
replaced by TAFE institute business boards.
Continuation of college councils
Clause 47 provides that a college council appointed under the former
VETE Act, which existed immediately before the commencement, is to
continue in existence as a college council under this Act. This will continue
community input into the strategic direction and business of the institutes.
The term of office of a college council member is also continued.
Provisions made by chief executive
Clause 48 provides for provisions made under the former VETE Act by
the chief executive concerning the maintenance of State colleges, to continue
in force for TAFE institutes as if they were made by the chief executive
under this Act.
References
Clause 49 provides that a reference concerning a State college in the
former VETE Act, may be taken as a reference to this Act if the context
permits. Also, references to the Vocational Education, Training and
Employment Corporation in relation to a State college may be taken to be a
reference to the chief executive, if the context permits.
The intention of this clause is to ensure that references to State colleges
and the Corporation in the former Act continue to be applicable, if relevant
when taken in context. This will ensure the smooth transition for TAFE
institutes under the new Act.
SCHEDULE
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DICTIONARY
This Schedule introduces a dictionary of definitions as referred to in part
1 of the Act. This dictionary defines terms for the purposes of the Act.
Terms already defined and `signposted' in the body of the Act are repeated
and cross-referenced in the dictionary.
© The State of Queensland 1998