1997

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

EDUCATION LEGISLATION AMENDMENT BILL 1997

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Employment, Education, Training and Youth Affairs, Senator the Honourable Amanda Vanstone)

80921  Cat. No. 96 7362 8  ISBN 0644 497742

EDUCATION LEGISLATION AMENDMENT BILL 1997

OUTLINE

The Education Legislation Amendment Bill 1997The Education Legislation Amendment Bill 1997 gives effect to the transfer of responsibility for the University of Canberra from the Commonwealth to the Australian Capital Territory (ACT) and makes a minor amendment to the Maritime College Act 1978.In order to facilitate the transfer of the University of Canberra this Bill:-	amends the University of Canberra Act 1989 (the Act) where appropriate and necessary 	prior to the conversion so that the Act will reflect the change of jurisdiction;-	amends the Australian Capital Territory (Self-Government) Act 1988 to make the Act an 	ACT enactment;-	provides consequential amendments to the Remuneration Tribunal Act 1973; and-	provides certain transitional arrangements in relation to preservation of the rights and 	accrued entitlements of University officers and staff.This Bill also amends the Maritime College Act 1978 to provide the Council of the Australian Maritime College (AMC) with the power to make statutes for, or in relation to, the regulation or control of traffic or parking.  Currently, parking spaces at the AMC are being used by others to the detriment of the college staff and students.  The Act is amended to allow the college to enforce car parking regulations.
FINANCIAL IMPACT
There is no financial impact as a result of this Bill.

EDUCATION LEGISLATION AMENDMENT BILL 1997

NOTES ON CLAUSES

Clause 1 - Short Title

Clause 1 provides for this Bill to be cited as the Education Legislation Amendment Bill 1997.

Clause 2 - Commencement

Clause 2 provides for this Bill to commence on the day it receives the Royal Assent subject to the following:

Part 1 of Schedule 1 commences on:

	a day to be fixed by Proclamation; or

	the first day after the end of the period of 6 months beginning on the day on which 		this Bill receives the Royal Assent, whichever is the earlier.

Parts 2, 3 and 4 of Schedule 1 commence immediately after the commencement of Part 1 of Schedule 1.

Clause 3 provides that, subject to clause 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

SCHEDULE 1

AMENDMENTS RELATING TO THE TRANSFER OF THE UNIVERSITY OF CANBERRA

PART 1

AMENDMENT OF THE UNIVERSITY OF CANBERRA ACT 1989

Part 1 of Schedule 1 sets out amendments to be made to the University of Canberra Act 1989 to give effect to the Government's intention to transfer the responsibility for the University of Canberra from the Commonwealth to the ACT.  The amendments primarily remove spent provisions relating to the sponsorship of the University of Canberra by Monash University when the University of Canberra was initially created.  The sponsorship arrangements with Monash University commenced in 1989 to assist the transition of the Canberra College of Advanced Education to a university.

The sponsorship arrangements gave Monash University powers of approval over the development of the University of Canberra's graduate programs and over staff appointments at certain levels.  In 1992, the Vice-Chancellors of the University of Canberra and Monash University wrote jointly to the Government seeking an end to the sponsorship arrangements based on the jointly held view that the principal contributions of the sponsoring university were made at the beginning of the sponsorship and that the continuation of the sponsorship was unnecessary.

In 1989, the University of Canberra (Cessation of Sponsorship) Regulations were made ending Monash University's sponsorship of the University of Canberra by repealing section 5 of the University of Canberra Act 1989.

Item 1 amends the Act to provide for the omission of the words "under the sponsorship of Monash University, to repeal the Canberra College of Advanced Education Act 1967" from the title of the Act.  This amendment reflects the fact that the sponsorship arrangements agreed to by Monash University for the establishment of the University of Canberra no longer apply.  Section 5 of the Act, which provided for that sponsorship, ceased to have effect when it was repealed by regulations made pursuant to subsection 5(4) of the Act.

Item 2 provides for the omission of the first and second paragraphs of the preamble.  Those paragraphs relate to the desirability of establishing a new university in the ACT and to the sponsorship by Monash University.  They are no longer relevant to the Act.

Item 3 amends Section 3 (definition of Vice Chancellor) by omitting “or 50”, referring to section 50 of the Act which is now repealed.

Item 4 provides for the amendment of paragraph 11(1)(c) by providing that the Chief Minister of the ACT shall appoint 3 rather than 2 persons to the University Council.  This amendment clarifies the operation of the effect of the repeal of section 5 of the Act which occurred by regulation (Statutory Rules 1993 No. 69).  Subsection 5(3) provided for the sponsorship of the University of Canberra by Monash University, the cessation of that sponsorship and the removal of arrangements for the participation of Monash University in the affairs of the University of Canberra with the increased involvement of the ACT.

Item 5 provides for the omission of paragraph 11(1)(d).  That paragraph permitted the Vice-Chancellor of Monash University to nominate 2 persons to be appointed to the University Council.  As Monash University now no longer sponsors the University, the provision is unnecessary and is to be deleted.

Item 6 is consequential to Item 5.  The amendment removes a reference to paragraph 11(1)(d) in subsection 11(4) to the Act, which deals with the length of time certain members of Council remain members of it.  As paragraph 11(1)(d) is removed, the reference to the paragraph in this provision is unnecessary.  It is therefore removed.  A similar reference to the paragraph, contained in paragraph 15(1)(f), which deals with how a Monash University appointee may cease to hold their position on the Council, is also removed by Item 7.

Item 8 provides for the repeal of paragraph 20(e).  Paragraph 20(e) provided for the Vice-Chancellor of Monash University to nominate 2 persons to be appointed to the Academic Board of the University.  Following the termination of the Monash University sponsorship, this paragraph is unnecessary.  It is removed.

Item 9 is consequential to Item 8.  It removes a reference to paragraph 20(e) contained in subsection 22(2), which deals with the length of time certain members of the Academic Board remain a member of it.  As paragraph 20(e) is removed, the reference to it is unnecessary.  It is, therefore, removed.

Item 10 provides for the repeal of section 38.  Section 38 provides for the exemption of the University from Commonwealth, State and Territory taxation.  Provisions exempting higher education institutions from Commonwealth taxation are found in the relevant tax codes.  The University should not be subject to a taxation regime that is different to the other Australian higher education institutions.  The matter of whether the University should be subject to Territory taxes is a matter for the ACT Legislative Assembly after it takes responsibility for the institution.  For these reasons, the section is removed.

Item 11 provides for the repeal of Division 2 of Part 5.  Division 2 of Part 5 provides for the repeal of the Canberra College of Advanced Education Act 1967.  This is a spent provision and is no longer required.

Item 12 provides for the repeal of sections 50, 53 and 54.  

Section 50 provides for the person who was the Principal of the Canberra College of Advanced Education to become the first Vice-Chancellor of the University and that that person's terms and conditions were to be no less favourable, on becoming Vice-Chancellor.  The section serves no further purpose as the University now has its second Vice-Chancellor.

Section 53 provides that, for the purposes of an Appropriation Act, references to the College are to be read as references to the University and references to the College Act are to be read as references to the University of Canberra Act 1989.  There are no references to the College in any operative Appropriation Acts, thus the section serves no further purpose.

Section 54 is a transitional provision which modified the application of sections 37 and 39 of the Act, dealing with the annual report and financial statements required to be prepared each year ending 31 December after the Canberra College of Advanced Education became the University of Canberra.  The requirements of sections 37 and 39, as modified by section 54, have been complied with, thus the section serves no further purpose.

Item 13 provides for the repeal of Divisions 4 and 5 of Part 5.

Division 4 establishes transitional provisions enabling the preservation of membership of the University Council of certain representative members of the Council who would have ceased to be members by virtue of the conversion of the Canberra College of Advanced Education to the University of Canberra, by allowing those members to be appointed by the Minister.  None of the appointments made pursuant to Division 4 remain operative, thus the Division serves no further purpose.

Division 5 contained consequential amendments to the Remuneration Act 1973, the Employment, Education and Training Act 1988 and the Higher Education Funding Act 1988 which were incorporated into the reprints of those Acts, thus the Division serves no further purpose.

PART 2

AMENDMENT OF THE AUSTRALIAN CAPITAL TERRITORY (SELF-GOVERNMENT) ACT 1988

Item 14 amends Schedule 2 of the Australian Capital Territory (Self-Government) Act 1988 to include the University of Canberra Act 1989.  The effect of this amendment is to convert the University of Canberra Act 1989 to an enactment of the ACT giving the ACT Legislative Assembly responsibility for the Act.

PART 3

AMENDMENTS OF THE REMUNERATION TRIBUNAL ACT 1973

The items amending the Remuneration Tribunal Act 1973 give effect to the policy that it is appropriate for higher education institutions in the States and Territories to decide for themselves what role, if any, the Remuneration Tribunal should have in relation to determining salaries in such areas.

Item 15 amends subsection 3(1) of the Act to provide that a higher education institution established by or under a law of the ACT is not included within the definition of “Commonwealth higher education institution”.

Item 16 amends subsection 3(1) of the Act to add the word "or" at the end of paragraph (a) of the definition of “executive education office”.  This is because the operation of Item 17 below will effect the omission of paragraph (b) of the definition of “executive education office”.

Item 17 amends subsection 3(1) of the Act to repeal paragraph (b) from the definition of “executive education office”.  This will have the effect of removing the offices of Vice-Chancellor and Deputy Vice-Chancellor of the University of Canberra from the definition of “executive education office”.

Item 18 amends paragraph 5(2)(b) of the Act to remove the reference to “, the University of Canberra”.  This will have the effect of removing the ability of the Remuneration Tribunal to advise in relation to terms and conditions (including remuneration and allowances) of University of Canberra executive education office holders.

PART 4

TRANSITIONAL PROVISIONS

Part 4 sets out transitional provisions relating to the transfer of the responsibility for the University of Canberra from the Commonwealth to the ACT.  The transitional provisions preserve rights or entitlements that may be held by people under Commonwealth legislation.  It also deals with final auditing and reporting requirements for the University for the period immediately preceding the day upon which responsibility for the University transfers from the Commonwealth to the ACT.

Item 19 establishes the purpose of the Part as discussed above.

Item 20 sets out a number of definitions applying to Part 4 of Schedule 1 and provides that, unless the contrary intention appears:
ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government) Act 1988.
transfer day means the day on which Part 1 of this Schedule of this Bill commences.
University means the University of Canberra established by section 4 of the University Act.
University Act means the University of Canberra Act 1989 as in force from time to time before the transfer day.

Item 21 provides that the terms and conditions (including any accrued entitlement to benefits) of a person who was employed by the University immediately before the transfer day are not affected by this Bill.  This item makes clear that the conversion of the University of Canberra Act 1989 to an ACT enactment will not affect the entitlements of the senior officers of the University or of any person employed as a member of the general staff of the University.  As at transfer day, all senior officers and employees will retain existing rights and entitlements as to terms and conditions of their employment, including entitlement to accrued recreation and sick leave.

Section 37 of the University Act imposes requirements in relation to the auditing of the University's accounts and records of financial transactions.  Such audits must be carried out by the Commonwealth Auditor-General and the Auditor-General must report to the Commonwealth Minister.
Item 22 provides that if transfer day is less than a year after the end of the last period in respect of which a report was made by the Auditor-General under subsection 37(4) of the University Act, that subsection has effect in respect of that period beginning immediately after the end of that last period and ending immediately before the transfer day.  This means that if the Auditor-General's last report covered the period 1 July 1996 to 30 June 1997 and the University is transferred to the ACT on 1 January 1998, then the final reporting period covers the period 1 July 1997 to 1 January 1998.

Section 39 of the University Act provides for the requirement for an Annual Report and financial reporting requirements for the University.
Item 23 provides that if the transfer day is less than a year after the end of the last year in respect of which a report was prepared under section 39 of the University Act, then, that section has effect in respect of the period beginning immediately after the end of that last year and ending immediately before the transfer day as if a reference in that section to a year were a reference to that period and a reference in that section to 31 December were a reference to the transfer day.  This item will ensure that the Council and the relevant Commonwealth Minister must only comply with the obligations of section 39 in respect of any year, or part of a year, during which the Act is not an ACT enactment.

Item 24 provides for the transitional application of the Administrative Appeals Tribunal Act 1975.  The item provides that, if immediately before the transfer day:

	a person had a right to apply under the Administrative Appeals Tribunal Act 1975 for a 	review of a decision of the University made under the Freedom of Information Act 1982 	concerning an act or practice of the University or request under the Administrative Appeals Tribunal Act 1975 a statement of reasons for such a decision; or

	before the transfer day, a person made such an application or request but it had not been 	finally disposed of under the Act by the transfer day;

that Act continues to apply in respect of that right, application or request as if the University Act had not become an ACT enactment.  

The Administrative Appeals Tribunal has jurisdiction to review decisions made by an officer of the University under the Freedom of Information Act 1982.  Therefore, if a person applies to the Administrative Appeals Tribunal for review of a decision under the Freedom of Information Act 1982 in accordance with item 27 of the Part, or if the person had a right to do so but had not yet acted on it, the Administrative Appeals Tribunal may deal with that matter as if the Administrative Appeals Tribunal Act 1975 had continued to apply to the University and the University Act had not become an ACT enactment.  This item ensures that if a person had a right to take action under the Administrative Appeals Tribunal Act 1975 prior to transfer day and either had or had not acted on that right, that person's right continues under that Act notwithstanding the transfer of the University to the ACT.  Rights that arise after transfer day will be subject to the relevant provisions of the ACT law. 

Item 25 provides for the transitional application of the Administrative Decisions (Judicial Review) Act 1977.  The item provides that, if before the transfer day:

	a person had a right to apply under the Administrative Decisions (Judicial Review) Act 	1977 for a review of a decision of the University or to request under that Act a statement 	of reasons for a decision of the University; or

	before the transfer day, a person made such an application or request but it had not been 	finally disposed of under that Act by the transfer day;

that Act continues to apply in respect of that right, application or request as if the University Act had not become an ACT enactment.

The item provides that a reference to a decision includes a reference to a failure to make a decision or conduct for the purpose of making a decision.  This item ensures that if a person had a right to take action under the Administrative Decisions (Judicial Review) Act 1977 prior to transfer day and either had or had not acted on that right, that person's right continues under that Act notwithstanding the transfer of the University to the ACT.  Rights that arise after transfer day will be subject to the relevant provisions of the ACT law. 

Item 26 establishes the transitional provisions protecting rights that have accrued under the Freedom of Information Act 1982.  The item provides that, if before the transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the University and the request had not been finally disposed of under that Act immediately before the transfer day, that Act continues to apply to the matter and the parties concerned as if the University Act had not become an ACT enactment.  This means that the review will be conducted pursuant to Commonwealth law.

Item 27 provides for the transitional application of the Long Service Leave (Commonwealth Employees) Act 1976.  The item provides that, if but for this item, an amount would become due on the transfer day under the Long Service Leave (Commonwealth Employees) Act 1976 to a person employed by the University and that amount became due solely because the person would cease to be an employee within the meaning of that Act as a result of the University Act becoming an ACT enactment, the amount does not become due.

Item 28 provides for the transitional application of the Occupational Health and Safety (Commonwealth Employment) Act 1991.  The item provides that, if before the transfer day:

	a provisional improvement notice was issued to the University under section 29 of the 	Occupational Health and Safety (Commonwealth Employment) Act 1991; or

	a prohibition notice was issued to the University under section 46 of that Act to remove 	an immediate threat to the health or safety of any person; or

	an improvement notice was issued to the University under section 47 of that Act to take 	action to remedy a contravention of the Act; or

	an investigation concerning the University commenced under section 41 of that Act to 	ascertain whether any requirements made under the Act or regulations are being complied 	with or whether there has been a contravention of the Act or concerning an accident or 	dangerous occurrence that has happened in the performing of work ; and

the matter has not been finally disposed of under that Act immediately before the transfer day, that Act continues to apply to the matter and the parties concerned as if the University Act had not become an ACT enactment.

The item further provides that, except as provided above, on and after the transfer day, the Occupational Health and Safety (Commonwealth Employment) Act 1991 ceases to apply in relation to an act concerning the University that occurred before the transfer day.

Item 29 provides for the University to be entitled to a refund of part of its payment of the contribution to the cost of the administration of the Occupational Health and Safety (Commonwealth Employment) Act 1991 where the University has paid a contribution under section 67H of that Act in respect of the financial year in which the transfer day occurs and the transfer day is a day in that financial year.  The University is entitled to a refund calculated by multiplying the contribution it has paid by the number of refund days divided by 365.

Contribution means the contribution paid by the University in respect of that financial year.  Number of refund days means the total number of days in the period beginning on the transfer day and ending on the last day of the financial year in which the transfer day occurs.

Item 30 establishes the transitional provisions protecting rights that have accrued under the Ombudsman Act 1976.  The item provides that, if immediately before the transfer day:

	a person had a right to make a particular complaint to the Ombudsman under the 	Ombudsman Act 1976 in relation to a particular action that had been taken by the 	University; or

	before the transfer day, a person had made such a complaint but it had not been finally 	disposed of under that Act by the transfer day;

that Act continues to apply in respect of that right or complaint as if the University Act had not become an ACT enactment.

The item further provides that, if immediately before transfer day:

	the Ombudsman was entitled to commence an investigation under the Ombudsman Act 	1976 in relation to a particular action that had been taken by the University; or

	before the transfer day, the Ombudsman commenced such an investigation but it had not 	been finally disposed of under that Act by the transfer day;

that Act continues to apply in respect of that entitlement or investigation as if the University Act had not become an ACT enactment.

This item ensures that if a person had a right to take action under the Ombudsman Act 1976 prior to transfer day and either had or had not acted on that right, that person's right continues under that Act notwithstanding the transfer of the University to the ACT.  Similarly, if the Ombudsman had an entitlement to investigate under the Act, that entitlement is preserved.  Rights and entitlements that arise after transfer day will be subject to the relevant provisions of the ACT law.

Item 31 provides for the transitional application of the Public Service Act 1922.  Part IV of the Public Service Act 1922 provides for officers of the Australian Public Service who hold public offices or are employed by public authorities; it deals with such matters as the reintegration back to the Australian Public Service of officers, preserved rights and entitlements and promotion issues of such persons.  The University employs a number of officers of the Australian Public Service to which Part IV of the Public Service Act 1922 apply.  That item provides that, if immediately before the transfer day:

	a provision of Part IV of the Public Service Act 1922 applied to a person employed by the 	University; and 

	the provision applied to the person because the University was a public authority within 	the meaning of Part IV of that Act;

the provision continues to apply to the person while the person remains an employee of the University as if the University were still a public authority within the meaning of Part IV of the Act.

Item 32 provides for the transitional application of the Safety, Rehabilitation and Compensation Act 1988.  The item provides that, if before the transfer day, an application was made under the Safety, Rehabilitation and Compensation Act 1988 for compensation in respect of injuries arising out of, or in the course of a person's employment by the University or disease, or loss of or damage to property, suffered by a person in connection with the person's employment by the University and the matter has not been finally disposed of under the Act immediately before the transfer day, that Act continues to apply to the matter and the parties concerned as if the University Act had not become an ACT enactment.

Item 33 provides that, if the University has paid an amount of premium under Division 4A of Part VII of the Safety, Rehabilitation and Compensation Act 1988 in respect of a part of the financial year in which the transfer day occurs and that part of the financial year occurs on and after the transfer day, that amount is taken to be part of the premium of the ACT for that financial year under that Division paid on behalf of the Territory by the University and the University is not entitled to claim a refund of that amount.

This provision clarifies the situation of the University in relation to its premium under the Safety, Rehabilitation and Compensation Act 1988 in the event that the University is transferred part way through a financial year.

SCHEDULE 2

AMENDMENT OF THE MARITIME COLLEGE ACT 1978

The items in this Schedule permit the Australian Maritime College to control the movement of traffic within areas occupied by the College within the State of Tasmania.

Item 1 introduces new section 24A into the Maritime College Act 1978 to enable the Council of the Maritime College to make Statutes to regulate and control traffic on land occupied by the Maritime College in Tasmania.

New section 24A confers on the Council a broad power to make Statutes in relation to all aspects of the regulation or control of traffic or the parking, stopping, standing or leaving of vehicles on land occupied by the College in the State of Tasmania (subsection 24A(1)).

Without limiting subsection (1), a Statute made under that subsection may authorise, and provide for the effect of, signs and markings and provide for the punishment, upon summary conviction, by a fine not exceeding 2 penalty units, of offences made under that subsection (subsection 24A(2)).