Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Jobs and Skills Australia Bill 2022
Jobs and Skills Australia (National Skills Commissioner Repeal) Bill 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Skills and Training, the Hon Brendan O'Connor
MP)
TABLE OF CONTENTS
GLOSSARY ........................................................................................................................................................ 1
OUTLINE .......................................................................................................................................................... 2
FINANCIAL IMPACT STATEMENT ...................................................................................................................... 3
CONSULTATION ............................................................................................................................................... 3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS................................................................................... 4
NOTES ON CLAUSES - JOBS AND SKILLS AUSTRALIA BILL ................................................................................. 9
Part 1 Preliminary........................................................................................................................................ 9
Part 2 Establishment and functions of Jobs and Skills Australia ................................................................. 10
Part 3 Establishment and functions of the JSA Director and staff assisting ................................................ 14
Part 4 Administration ................................................................................................................................ 16
Part 5 Miscellaneous ................................................................................................................................. 20
NOTES ON CLAUSES - JOBS AND SKILLS AUSTRALIA (NATIONAL SKILLS COMMISSIONER REPEAL) BILL ......... 23
Schedule 1--Repeal of the National Skills Commissioner Act 2020 ................................................................ 23
GLOSSARY
Abbreviation Definition
Acts Interpretation Act Acts Interpretation Act 1901
Bill Jobs and Skills Australia Bill 2022
JSA Director Jobs and Skills Australia Director
Legislation Act Legislation Act 2003
NSC National Skills Commissioner
PGPA Act Public Governance, Performance and
Accountability Act 2013
Public Service Act Public Service Act 1999
Repeal Bill Jobs and Skills Australia (National Skills
Commissioner Repeal) Bill 2022
Secretary Secretary of the Department
SES Senior Executive Service
VET Vocational education and training
1
JOBS AND SKILLS AUSTRALIA BILL 2022
JOBS AND SKILLS AUSTRALIA (NATIONAL SKILLS COMMISSIONER REPEAL) BILL 2022
OUTLINE
The purpose of the Jobs and Skills Australia Bill 2022 (the Bill) is to establish Jobs and Skills
Australia as a new statutory body within the Department of Employment and Workplace
Relations and set out the initial functions of Jobs and Skills Australia.
Once established, Jobs and Skills Australia's functions will include an advisory role, providing
independent advice to the Minister for Employment and Workplace Relations and the
Minister for Skills and Training or to the Secretary of the Department in relation to a range
of current and emerging labour market and workforce skills and training issues to improve
employment opportunities for individuals and help drive economic growth.
Jobs and Skills Australia will also play an important role in helping to strengthen Australia's
economy. It will deliver this by leading research and analysis, harness insights from industry,
undertake workforce forecasting and prepare capacity studies for emerging and growing
industries. This will provide a greater understanding of current, emerging and future
Australian workforce skills needs to inform Australia's skills system policy and program
settings. Its research and analysis will consider the resourcing and funding requirements for
registered training organisations to deliver accessible quality VET courses which will assist
students and learners and better support government's investment decisions in the sector.
Jobs and Skills Australia will give effect to the Government's commitments to tripartism. In
exercising its functions, Jobs and Skills Australia will be required (where appropriate) to
genuinely consult and work with the State and Territory governments and other key
stakeholders including, for example, employer associations, unions, training providers and
regional organisations. This partnership approach will ensure Jobs and Skills Australia's
advice matches and responds to the evolving demands of the economy, Australia's
workforce and learners and supports the training system to deliver the skilled workers
Australia needs.
An interim director of Jobs and Skills Australia (JSA Director) will initially be appointed by the
Minister. The primary function of the JSA Director is to lead Jobs and Skills Australia in the
performance of its functions. The JSA Director will be supported by employees of the
Department who will, in turn, be subject to the direction of the JSA Director.
Establishing Jobs and Skills Australia will enable its critical work to commence immediately
while more extensive consultation on the permanent model for Jobs and Skills Australia
occurs. Following consultation, including as part of the Jobs and Skills Summit, the
Government will introduce a new Bill to establish Jobs and Skills Australia's permanent
functions, structure and governance arrangements. The interim JSA Director will support the
transition to the permanent model for Jobs and Skills Australia.
2
The Job and Skills Australia (National Skills Commissioner Repeal Bill 2022 (the Repeal Bill)
repeals the National Skills Commissioner Act 2020.
Jobs and Skills Australia will have a broader and more strategic focus than the National Skills
Commissioner. Through the use of data, evidence and analysis, Jobs and Skills Australia will
play a proactive role in workforce planning. This will include delivering products such as
capacity studies for new and emerging industries to help ensure Australia has a pipeline of
appropriately skilled workers. Jobs and Skills Australia will also have a wider remit to work in
genuine partnership with industry and other key stakeholders, with the consultation
requirements embedded in legislation. This will enable the skills and workforce needs of all
participants in the Australian economy to be at the forefront when the Government is
considering workforce, employment and skills policies and programs.
FINANCIAL IMPACT STATEMENT
There are nil financial impacts for the Commonwealth of the proposed Bill and the Repeal
Bill.
Jobs and Skills Australia will be funded from savings realised by abolishing the role of the
National Skills Commissioner.
CONSULTATION
The Department of Employment and Workplace Relations (the Department) consulted with
other Commonwealth agencies to understand the intersection of the functions of Jobs and
Skills Australia and functions undertaken by those departments. The Department also
sought general feedback on design, functions, governance of the agency and processes for
working with Commonwealth agencies. Consultations have occurred with several industry
peak bodies and education and training provider representatives. This feedback has
informed the development of the Bill.
The Commonwealth will consult further with State and Territory Ministers on Jobs and Skills
Australia functions and outputs, mechanisms for engaging with States and Territories, and
any priorities for the initial workplan of Jobs and Skills Australia.
To inform the permanent model for Jobs and Skills Australia, further consultation will be
undertaken with non-government stakeholders, including as part of the Jobs and Skills
Summit to be held in early September 2022.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Jobs and Skills Australia Bill 2022
Jobs and Skills Australia (National Skills Commissioner Repeal) Bill 2022
The Jobs and Skills Australia Bill 2022 (the Bill) and the Jobs and Skills Australia (National
Skills Commissioner Repeal) Bill 2022 (the Repeal Bill) are compatible with the human rights
and freedoms recognised or declared in the international instruments listed in section 3 of
the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Bill is to establish a new statutory body within the Department of
Employment and Workplace Relations (the Department) and set out the initial functions of
Jobs and Skills Australia.
Once established, Jobs and Skills Australia's functions will include an advisory role, providing
independent advice to the Minister for Employment and Workplace Relations and the
Minister for Skills and Training or to the Secretary of the Department in relation to a range
of current and emerging labour market and workforce skills and training issues to improve
employment opportunities for individuals and drive economic growth.
Jobs and Skills Australia will also play an important role in helping to strengthen Australia's
economy. It will deliver this by leading research and analysis, harness insights from industry,
undertake workforce forecasting and prepare capacity studies for emerging and growing
industries. This will provide a greater understanding of current, emerging and future
Australian workforce skills needs to inform Australia's skills system policy and program
settings. Its research and analysis will consider the resourcing and funding requirements for
registered training organisations to deliver accessible quality VET courses which will assist
students and learners and better support government's investment decisions in the sector.
Jobs and Skills Australia will give effect to the Government's commitments to tripartism. In
exercising its functions, Jobs and Skills Australia will be required (where appropriate) to
consult and work genuinely with the State and Territory governments and other key
stakeholders including, for example, employer associations, unions, training providers and
regional organisations. This partnership approach will ensure Jobs and Skills Australia's
advice matches and responds to the evolving demands of the economy, Australia's
workforce and learners and supports the training system delivers the skilled workers
Australia needs.
An interim director of Jobs and Skills Australia (JSA Director) will initially be appointed by the
Minister. The primary function of the JSA Director is to assist Jobs and Skills Australia in the
4
performance of its functions. The JSA Director will be supported by employees of the
Department who will, in turn, be subject to the direction of the JSA Director.
Establishing Jobs and Skills Australia will enable its critical work to commence immediately
while more extensive consultation on the permanent model for Jobs and Skills Australia
occurs. Following consultation, including as part of the Jobs and Skills Summit, the
Government will introduce a new Bill to establish Jobs and Skills Australia's permanent
functions, structure and governance arrangements. The interim JSA Director will support the
transition to the permanent model for Jobs and Skills Australia.
The purpose of the Repeal Bill is to repeal the National Skills Commissioner Act 2020.
Jobs and Skills Australia will have a broader and more strategic focus than the National Skills
Commissioner. Through the use of data, evidence and analysis, Jobs and Skills Australia will
play a proactive role in workforce planning. This will include delivering products such as
capacity studies for new and emerging industries to help ensure Australia has a pipeline of
appropriately skilled workers. Jobs and Skills Australia will also have a wider remit to work in
genuine partnership with industry and other key stakeholders. This will enable the skills and
workforce needs of all participants in the Australian economy to be at the forefront when
the Government is considering workforce, employment and skills policies and programs.
Human rights implications
The Repeal Bill in isolation does not engage any of the applicable rights or freedoms. The
repeal of the NSC is consequential to establishing Jobs and Skills Australia pursuant to the
Bill once enacted.
The Bill engages the following rights:
• the right to education - Article 13 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR);
• the right to work - Article 6 of the ICESCR; and
• the right to privacy and reputation - Article 17 of the International Covenant on Civil
and Political Rights (ICCPR).
Right to education
The Bill engages the right to education contained in Article 13 of the ICESCR. Article 13(2)(b)
states that secondary education, including technical and vocational secondary education
shall be made generally available and accessible to all by every appropriate means and, in
particular, by the progressive introduction of free education.
Technical and vocational education should enable students to acquire knowledge and skills
which contribute to their employability and enhance their productivity.
5
By establishing Jobs and Skills Australia, the Bill promotes the right to education because it
enables that body to provide advice and analysis on national skills and training needs and
priorities and advice on the adequacy of the Australian VET system.
Relevantly, the functions of Jobs and Skills Australia are to include:
• providing advice to the Minister or to the Secretary in relation to: Australia's current,
emerging and future skills and training needs and priorities (including in relation to
apprenticeships) and the adequacy of the Australian system for providing VET, including
training outcomes;
• undertaking research and analysis on the resourcing and funding requirements for
registered training organisations to deliver accessible quality VET courses;
• undertaking workforce forecasting, assessing workforce skills requirements and
undertaking cross-industry workforce analysis; and
• collecting, analysing, sharing and publishing data and other information about these
matters.
These functions will strengthen the integrity and quality of the VET sector, as well as
safeguard the interests of students who are engaged in VET and university education. These
functions will also enable students to be better informed about the employment
needs/outcomes for the qualifications they pursue, including the potential financial
benefits, and to be confident that they are paying appropriate fees for the acquisition of
those qualifications.
The Bill therefore would promote, and have a positive impact on, the right to education.
The Bill is compatible with the right to education.
Right to work
The Bill also engages the right to work contained in Article 6(1) of the ICESCR. Article 6(1)
recognises the right to work, which includes the right to the opportunity to gain a living by
work which a person freely chooses or accepts. Article 6(2) states that the steps to be taken
shall include technical and vocational guidance and training programmes, policies and
techniques to achieve steady economic, social and cultural development and full and
productive employment under conditions safeguarding fundamental political and economic
freedoms to the individual.
By establishing Jobs and Skills Australia, the Bill promotes the right to work because it
enables that body to provide advice and analysis to improve and enhance Australia's labour
market and workforce needs and priorities.
6
Relevantly, the functions of Jobs and Skills Australia are to include (in addition to those
described above):
• providing advice to the Minister or to the Secretary in relation to Australia's current
and emerging labour market, including advice on workforce needs and priorities; and
• preparing capacity studies, including for emerging and growing industries and
occupations.
The measures in the Bill also enhance the realisation of the right to work by identifying the
skills that contribute to a person's employability through better information and analysis on
the skills, VET and university qualifications required for jobs:
o that have an existing/projected need for workers; and
o for which students have achieved the most positive financial outcomes.
The Bill therefore would, generally, have a positive impact on the right to work and
promotes that right.
The Bill is compatible with the right to work.
Right to privacy
The Bill engages Article 17 of the ICCPR, which requires that everyone has the right to the
protection of the law against arbitrary or unlawful interference with their privacy.
The functions of Jobs and Skills Australia include collecting, analysing, sharing and publishing
VET data and other information to inform policy development and program delivery
(proposed paragraph 9(f)). This information may also be provided to the public.
In the exercise of its functions, including the provision of advice to the Minister or to the
Secretary, analysis and the preparation of reports, Jobs and Skills Australia will
predominantly only use de-identified personal information and usually information that is
aggregated. Examples of information Jobs and Skills Australia may utilise in the preparation
of its reports and advice include generic information relating to job vacancies and data
collected by other data custodians (such as the ABS Multi-Data Integration Project data)
which has been de-identified. It is, therefore, unlikely that there will be any need for Jobs
and Skills Australia to use or disclose personal or sensitive information in order to perform
its paragraph 9(f) function.
In the event that Jobs and Skills Australia does collect personal information in performing its
functions, for example from surveys completed by individuals or other organisations, its
collection, use, disclosure and storage of personal information will be required to be
managed according to the existing provisions of the Privacy Act 1988. Jobs and Skills
Australia is to be a statutory body created within the Department of Employment and
Workplace Relations and consequently the Australian Privacy Principles which deal with all
7
stages of the information lifecycle will apply. The same will apply to the JSA Director and
the staff assisting the JSA Director given they are officials of the Department (see proposed
section 8 of the Bill). Therefore, Jobs and Skills Australia will be required to take reasonable
steps to protect personal information it will hold from misuse, interference and loss, and
from unauthorised access, modification or disclosure.
The Bill is compatible with the right to privacy.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human rights
and does not limit any human rights.
Minister for Skills and Training
The Hon Brendan O'Connor MP
8
JOBS AND SKILLS AUSTRALIA BILL 2022
NOTES ON CLAUSES
Part 1
Preliminary
Outline of Part
1. This Part of the Bill provides for some preliminary matters and includes clauses on the
short title of the Bill, the commencement, an outline and definitions.
Detailed explanation
Clause 1: Short title
2. This is a formal provision specifying the short title of the Act to be the Jobs and Skills
Australia Act 2022.
Clause 2: Commencement
3. The table in this clause specifies that the whole of the Bill, once enacted, commences
on the day after the end of the period of seven days beginning on the day the Bill
receives the Royal Assent.
Clause 3: Simplified outline of this Act
4. This clause provides a simplified outline of the Bill. This outline is included to assist
readers to understand the substantive provisions of the Bill but is not intended to be
comprehensive. It is intended that readers should rely on the substantive provisions.
Clause 4: Definitions
5. This clause defines terms and expressions that appear in the Bill.
JSA Director means the Jobs and Skills Australia Director.
paid work means work for financial gain or reward (whether as an employee, a self-
employed person or otherwise).
rules means the rules made under clause 30.
Secretary means the Secretary of the Department.
VET means vocational education and training.
VET course has the same meaning as in the National Vocational Education and Training
Regulator Act 2011.
9
Part 2
Establishment and functions of Jobs and Skills Australia
Outline of Part
6. This Part of the Bill establishes Jobs and Skills Australia and sets out its functions.
Detailed explanation
Clause 5: Simplified outline of this Part
7. This clause provides a simplified outline of this Part. This outline is included to assist
readers to understand the substantive provisions of the Part but is not intended to be
comprehensive. It is intended that readers should rely on the substantive provisions.
Clause 6: Establishment
8. This clause establishes Jobs and Skills Australia.
Clause 7: Composition
9. This clause provides that Jobs and Skills Australia is to be composed of the JSA Director
and staff made available to assist the JSA Director pursuant to clauses 14 and 15.
Clause 8: Part of the Department for certain purposes
10. This clause specifies that Jobs and Skills Australia is prescribed in relation to the
Department for the purposes of paragraph (a) of the definition of 'Department of State'
in section 8 of the PGPA Act. This means that Jobs and Skills Australia will be treated as
part of the Department for the purposes of the PGPA Act. Public resources expended
for the purposes of Jobs and Skills Australia will be used and managed by the
Department through the Secretary as the accountable authority.
11. A note under this clause explains that the effect of clause 8 is that the JSA Director and
staff assisting the JSA Director are 'officials of the Department' for the purposes of the
PGPA Act. As officials of the Department, the JSA Director and the staff assisting the JSA
Director will need to comply with the accountability obligations under the PGPA Act
including the general duties of an official under sections 25 to 29 of that Act.
Clause 9: Functions of Jobs and Skills Australia
12. This clause sets out the functions of Jobs and Skills Australia.
13. Paragraph (a) provides that Jobs and Skills Australia is to give advice to the Minister
(which will include both the Minister for Employment and Workplace Relations and the
10
Minister for Skills and Training) or the Secretary in relation to:
• Australia's current and emerging labour market, including advice on workforce needs
and priorities. Amongst other matters, this advice will assist in the development of
government policy to improve employment opportunities for individuals and help
drive economic growth;
• Australia's current, emerging and future skills and training needs and priorities
(including in relation to apprenticeships). This may include, for example, advice
regarding the demand for, and availability of, workers with particular skills or training
across the States, Territories, industries and occupations;
• the adequacy and performance of Australia's system for providing VET, including
training outcomes. For example, this advice may consider the analysis of linked
datasets to identify the benefits and outcomes of specific courses for individuals,
such as the VET National Data Asset;
14. Paragraph (b) provides that Jobs and Skills Australia is to prepare capacity studies,
including for emerging and growing industries and occupations. These studies will
support the Government in its effective planning and policy development to ensure
Australia's skills and higher education systems are responsive to current and emerging
labour market and workforce needs and priorities. As part of these capacity studies,
Jobs and Skills Australia may undertake labour market analysis on the factors impacting
supply and demand for workers in a particular sector, undertake gap analysis of skills in
demand and consider when workers will be needed in the future.
15. Paragraph (c) provides that Jobs and Skills Australia is to undertake workforce
forecasting, assess workforce skills requirements and undertake cross-industry
workforce analysis. These functions may include the systematic identification, analysis
and planning of future workforce needs to support industry and economic growth
across the labour market. Priorities for more targeted analysis may include, for
example, where the Australian Government is a major funder (such as the National
Disability Insurance Scheme, aged care and health) or where demand is forecast to
grow.
16. Paragraph (d) provides that Jobs and Skills Australia is to undertake research and
analysis on the resourcing and funding requirements for registered training
organisations to deliver accessible quality VET courses. Registered training organisations
are those organisations listed on the National Register (as defined in the National
Vocational Education and Training Regulator Act 2011). This function will consider the
costs involved in the provision of quality VET courses from the perspective of both
11
registered training organisations and students and better support government
investment decisions for delivering quality training.
17. Paragraph (e) provides that Jobs and Skills Australia is to inform the public about the
matters mentioned above. This may include, for example, through regular publishing
online of its analyses, forecasting and capacity studies.
18. Paragraph (f) provides that Jobs and Skills Australia is to collect, analyse, share and
publish data and other information about the matters mentioned above to inform
policy development and program delivery. This will enable, for example, Jobs and Skills
Australia to share advice with other portfolio Ministers (such as the Minister for
Immigration relating to labour market requirements for skilled migration), State and
Territory governments, unions, training providers and industry stakeholders to support
targeted investment in training and skilling of Australians. The sharing of the data will
also support the effective targeting of employment services to respond to labour
market conditions with the information helping to enable the Government and
employment services providers to better support job seekers to find available or
anticipated employment opportunities in their local areas that are suited to their skills
and experience or to develop the skills that are needed by employers.
19. In the exercise of its functions, including the provision of advice to the Minister or to
the Secretary, analysis and the preparation of reports, Jobs and Skills Australia will
predominantly only use de-identified personal information. Examples of information
Jobs and Skills Australia may utilise in the preparation of its reports and advice include
generic information relating to job vacancies and data collected by other data
custodians (such as the ABS Multi-Data Integration Project data) which has been de-
identified. It is, therefore, unlikely that there will be any need for Jobs and Skills
Australia to use or disclose personal or sensitive information in order to perform its
paragraph 9(f) function.
20. In the event that Jobs and Skills Australia does collect personal information in
performing its functions, for example from surveys completed by students or other
organisations, its collection, use, disclosure and storage of personal information will be
required to be managed according to the existing provisions of the Privacy Act 1988.
Jobs and Skills Australia will be a statutory body created within the Department and
consequently the Australian Privacy Principles which deal with all stages of the
information lifecycle will apply. The same will apply to the JSA Director and the staff
assisting the JSA Director given they are officials of the Department (see clause section
8 of the Bill). Therefore, Jobs and Skills Australia will be required to take reasonable
steps to protect personal information it will hold from misuse, interference and loss,
and from unauthorised access, modification or disclosure.
12
21. Paragraph (g) provides that Jobs and Skills Australia is to undertake any other function
that is either conferred on it by the rules, by this Bill or any other law of the
Commonwealth, or that is incidental or conducive to the performance of the functions
described in this Part. Enabling the rules to confer other functions on Jobs and Skills
Australia allows for flexibility. Subclause 30(2) sets clear parameters as to what are not
permitted in the rules.
Clause 10: Performance of functions
22. This clause provides that, in performing its functions, Jobs and Skills Australia must
consult and work with: State and Territory governments; relevant government
authorities; employers, unions, training providers and other industry stakeholders and
other persons or bodies with an interest in the labour market, workforce skills or
workforce training needs. Jobs and Skills Australia is only required to consult with these
persons or bodies where it is considered appropriate. The purpose of this clause is to
ensure Jobs and Skills Australia develop and maintain relationships with relevant
stakeholders to give effect to the Government's commitments to tripartism and
working genuinely with all relevant parties to help the training system deliver the skilled
workers Australia needs.
13
Part 3
Establishment and functions of the JSA Director and staff assisting
Outline of Part
23. This Part of the Bill establishes the office of the JSA Director and sets out the JSA
Director's role and functions and staff assisting the JSA Director.
Detailed explanation
Clause 11: Simplified outline of this Part
24. This clause provides a simplified outline of this Part. This outline is included to assist
readers to understand the substantive provisions of the Part but is not intended to be
comprehensive. It is intended that readers should rely on the substantive provisions.
Clause 12: JSA Director
25. This clause provides that there is to be a Jobs and Skills Australia Director.
Clause 13: Functions of the JSA Director
26. This clause prescribes the functions of the JSA Director, which are to:
• assist Jobs and Skills Australia in the performance of its functions;
• perform such other functions conferred on the JSA Director by the rules, this Bill or
any other law of the Commonwealth; and
• do anything incidental or conducive to the performance of the above functions.
27. By enabling the rules to confer other functions on the JSA Director allows for
flexibility, for example, if following substantive consultation further functions are
recommended. Subclause 30(2) sets clear parameters as to what are not permitted in
the rules.
Clause 14: Arrangements relating to staff of the Department
28. This clause allows for the Secretary to make employees of the Department available to
assist the JSA Director in connection with the performance of their duties. When
performing services for the JSA Director, these APS employees are subject to the
directions of the JSA Director.
Clause 15: Other persons assisting the JSA Director
29. This clause provides that, in addition to those employees of the Department made
available by the Secretary, the JSA Director may also be assisted by employees of other
Agencies (within the meaning of the Public Service Act) whose services are made
available to the JSA Director in connection with the performance of any of the JSA
Director's functions.
14
30. Section 7 of the Public Service Act currently provides that an Agency means a
Department, an Executive Agency established under section 65 of that Act, or another
body or group of persons declared to be a Statutory Agency for the purposes of that
Act.
31. Clause 15 has been included to allow Commonwealth agencies other than the
Department to make staff available to assist the JSA Director. When performing
services for the JSA Director, these Agency employees are subject to the directions of
the JSA Director.
Clause 16: Consultants
32. This clause allows for the JSA Director, on behalf of the Commonwealth, to engage
consultants to assist in the performance of the JSA Director's functions. The
consultants are to be engaged on the terms and conditions that the JSA Director
determines in writing. Examples of work that the JSA Director might engage
consultants to perform include tasks or projects for which the Department may not
have sufficient in-house expertise, or where additional perspective is valuable.
15
Part 4
Administration
Outline of Part
33. This Part of the Bill deals with administrative matters relating to the office of the JSA
Director, including the appointment of the JSA Director and the terms and conditions
on which the JSA Director holds office.
Detailed explanation
Clause 17: Simplified outline of this Part
34. This clause provides a simplified outline of this Part. This outline is included to assist
readers to understand the substantive provisions of the Part but is not intended to be
comprehensive. It is intended that readers should rely on the substantive provisions.
Clause 18: Appointment
35. This clause provides that the JSA Director is to be appointed by the Minister by written
instrument, on a part-time or full-time basis. The JSA Director is to be appointed for
the period specified in the instrument of appointment, which must not exceed one
year. This reflects the intention that it is only to be an interim arrangement whilst a
permanent model for Jobs and Skills Australia is developed following further
consultation.
36. A note under subclause (1) reminds the reader that the JSA Director may be
reappointed pursuant to section 33A of the Acts Interpretation Act. Section 33A of that
Act provides that if an Act confers a power to make an appointment, the power is
taken to include a power of reappointment.
37. Subclause (3) provides that a person may only be appointed as the JSA Director if the
Minister is satisfied that the person has appropriate qualifications, knowledge or
experience. Examples of such qualifications, knowledge or experience may include:
• relevant tertiary qualifications;
• experience as a senior organisational leader and innovator across public or private
sector(s);
• knowledge and experience in the use of existing and emerging data sources;
• knowledge and experience in research and analysis, and in the use of cutting-edge
analytic techniques to underpin that research and analysis; and
• strong representation, communication and stakeholder engagement skills.
Clause 19: Acting appointments
16
38. This clause allows the Minister to appoint a person to act as the JSA Director during a
vacancy in the office of the JSA Director (whether or not an appointment has
previously been made to the office), or during any period when the JSA Director is
absent from duty or from Australia or is otherwise unable to perform the duties of the
office for any reason. It is proposed this provision will be utilised to appoint an acting
JSA Director for the interim period whilst further consultation is undertaken to
determine the more permanent structure for Jobs and Skills Australia.
39. A note under subclause (1) refers the reader to the rules that apply to acting
appointments under sections 33AB and 33A of the Acts Interpretation Act.
40. Subclause (2) provides that a person may be appointed to act as the JSA Director only if
the Minister is satisfied that the person has appropriate qualifications, knowledge and
experience.
Clause 20: Remuneration
41. This clause sets out the remuneration arrangements for the JSA Director. Subclause (1)
provides that the JSA Director is to be paid the remuneration that is determined by the
Remuneration Tribunal, and that if no such determination is in operation, then the JSA
Director is to be paid the remuneration as prescribed by the rules. Subclause (2)
provides that the JSA Director is to be paid the allowances that are prescribed by the
rules. Subclause (3) makes clear that clause 20 has effect subject to the Remuneration
Tribunal Act 1973.
Clause 21: Leave of absence
42. This clause provides for the granting of leave of absence. Subclause (1) provides that if
the JSA Director is appointed on a part-time basis, the Minister may grant leave of
absence to the JSA Director on such terms and conditions as the Minister considers
appropriate. If the JSA Director is appointed on a full-time basis, then subclause (2)
provides that the JSA Director has the recreation leave entitlements that are
determined by the Remuneration Tribunal but that for any other leave of absence, the
Minister may grant the JSA Director leave of absence on the terms and conditions that
the Minister determines.
Clause 22: Engaging in other paid work
43. This clause sets out the rules in regard to the JSA Director engaging in paid work
outside the duties of the JSA Director's office. The Bill contains a definition of paid
work, which means work for financial gain or reward (whether as an employee, self-
employed person or otherwise).
17
44. Subclause (1) provides that if the JSA Director is appointed on a part-time basis, then
the JSA Director must not engage in any paid work that, in the Minister's opinion,
conflicts or would conflict with the proper performance of the JSA Director's functions.
If the JSA Director is appointed on a full-time basis, then subclause (2) provides that
the JSA Director must not engage in paid work outside the duties of the JSA Director's
office without the Minister's approval.
45. The purpose of this clause is to ensure that the JSA Director can commit themselves to
the role of JSA Director and avoid any potential, real or perceived conflicts of interest.
In doing so, this clause is intended to uphold principles of independence, transparency
and accountability.
Clause 23: Other terms and conditions
46. This clause allows the Minister to determine terms and conditions of the JSA Director's
appointment in relation to any matters not covered by the Bill.
Clause 24: Resignation
47. This clause allows the JSA Director to resign from their appointment as JSA Director by
giving a written resignation to the Minister. The resignation takes effect on the day it is
received, or on a later day if specified in the resignation.
Clause 25: Termination of appointment
48. This clause prescribes the circumstances in which the Minister may terminate the
appointment of the JSA Director.
49. Subclause (1) provides that the Minister may terminate the appointment of the JSA
Director for misbehaviour, or if the JSA Director is unable to perform the duties of their
office because of physical or mental incapacity.
50. Subclause (2) provides that the Minister may terminate the appointment of the JSA
Director if the JSA Director: becomes bankrupt; applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors; compounds with the JSA Director's
creditors; or makes an assignment of the JSA Director's remuneration for the benefit of
the JSA Director's creditors.
51. Subclause (2) further provides that the JSA Director's appointment may be terminated
if: the JSA Director is absent, except on leave of absence, for 14 consecutive days or for
28 days in any 12 months; the JSA Director engages (if part-time) in paid work that in
the Minister's opinion conflicts or could conflict with the proper performance of the
18
JSA Director's duties; the JSA Director engages (if full-time), except with the Minister's
approval, in paid work outside the duties of the JSA Director's office; or the JSA
Director fails, without reasonable excuse, to comply with the requirements of officials
to disclose conflicts of interest under section 29 of the PGPA Act or rules made for the
purposes of that section.
19
Part 5
Miscellaneous
Outline of Part
52. This Part of the Bill contains miscellaneous provisions, such as provisions about
Ministerial directions, annual reports, delegations and the general rule-making power.
Detailed explanation
Clause 26: Simplified outline of this Part
53. This clause provides a simplified outline of this Part. This outline is included to assist
readers to understand the substantive provisions of the Part but is not intended to be
comprehensive. It is intended that readers should rely on the substantive provisions.
Clause 27: Ministerial directions
54. This clause enables the Minister to give the JSA Director directions about the way in
which the JSA Director is to carry out the functions of the JSA Director or the functions
of Jobs and Skills Australia. For example, the Minister may direct the JSA Director for
Jobs and Skills Australia to prioritise workforce forecasting in industries where the
Australian Government is the major funder (such as the National Disability Insurance
Scheme, aged care and health). It is not necessary for these directions to be given in
writing.
55. Subclause (2) makes clear that the Minister may not direct Jobs and Skills Australia
about the content of any advice that may be given by the JSA Director or Jobs and Skills
Australia. This supports the independence of the JSA Director and Jobs and Skills
Australia.
56. Subclause (3) compels the JSA Director to comply with any directions given under
subclause (1).
57. Subclause (4) provides that, if a direction given by the Minister under subclause (1) is in
writing, the direction is not a legislative instrument. Any such directions would be
considered administrative in character because they apply to the JSA Director and do
not determine any functions under the law, but rather, determine the way in which the
functions are to be performed with the functions being specified elsewhere in the Bill.
Therefore, this subclause is declaratory of the law and does not create a substantive
exemption from the requirements of the Legislation Act 2003.
Clause 28: Annual report
20
58. This clause provides that when preparing the Department's annual report under
section 46 of the PGPA Act for a period, the Secretary must include information in that
report about the performance of Jobs and Skills Australia's functions during that
period.
Clause 29: Delegation
59. This clause allows the Minister and the JSA Director to delegate certain powers under
the Bill.
60. Subclause (1) provides that the Minister may, in writing, delegate the Minister's
powers under subclauses 19(1) or 21(1) or paragraph 21(2)(b) to the Secretary of the
Department, an SES employee or an acting SES employee in the Department. These
powers are the power to appoint a person to act as the JSA Director and the power to
grant the JSA Director leave of absence (unless if the JSA Director is appointed full-
time, in which case the power doesn't apply to recreation leave since that entitlement
is determined by the Remuneration Tribunal). These delegations of power are
appropriate given they relate to temporary arrangements only and may arise in
circumstances where it is necessary to exercise the powers at short notice.
61. A note under subclause (1) provides a reminder that sections 34AA and 34A of the Acts
Interpretation Act contain provisions relating to delegations.
62. Subclause (2) provides that the JSA Director may, in writing, delegate all or any of the
JSA Director's functions or powers (see clause 13) under this Act to an SES employee,
or an acting SES employee, in the Department. By granting the JSA Director the power
to delegate any or all of their functions and powers, the JSA Director can ensure all of
their functions and powers are effectively exercised given it may not be feasible for the
JSA Director to personally exercise all of their functions and powers in a timely manner.
63. Subclause (3) provides that in performing a delegated function or exercising a
delegated power, the delegate must comply with any written directions of the Minister
or the JSA Director as the case requires.
Clause 30: Rules
64. This clause enables the Minister, by legislative instrument, to make rules prescribing
matters that are required or permitted by other provisions in the Bill to be prescribed
by the rules, or that are necessary or convenient for carrying out or giving effect to the
Bill. For example, paragraph 9(g) enables the rules to confer additional functions on
Jobs and Skills Australia and subclause 20(2) enables the rules to prescribe the
allowances that are to be paid to the JSA Director.
21
65. For the avoidance of doubt, subclause 30(2) provides that the rules must not create an
offence or civil penalty, provide for powers of arrest or searches, impose a tax, provide
for any appropriations or directly amend the text of this Bill.
22
JOBS AND SKILLS AUSTRALIA (NATIONAL SKILLS COMMISSIONER REPEAL) BILL 2022
NOTES ON CLAUSES
Clause 1: Short title
1. This is a formal provision specifying the short title of the Act to be the Jobs and Skills
Australia (National Skills Commissioner Repeal) Bill 2022.
Clause 2: Commencement
2. The table in this clause specifies that the whole of the Repeal Bill (once enacted)
commences at the same time as the Jobs and Skills Australia Bill (the Bill) but that none
of the provisions of the Repeal Bill will commence at all if the Bill is not enacted. If
enacted, the whole of the Bill commences on the day after the end of the period of
seven days beginning on the day the Bill receives the Royal Assent.
Clause 3: Schedule
3. This clause gives effect to the provisions in the Schedule to the Repeal Bill.
Schedule 1--Repeal of the National Skills Commissioner Act 2020
National Skills Commissioner Act 2020
Item 1: The whole of the Act
4. This item repeals the whole of the National Skills Commissioner Act 2020.
23