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2019 - 2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL SKILLS COMMISSIONER BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment, Skills, Small and
Family Business, Senator the Hon Michaelia Cash)
TABLE OF CONTENTS
OUTLINE .......................................................................................................................................................... 1
FINANCIAL IMPACT STATEMENT ...................................................................................................................... 2
CONSULTATION ............................................................................................................................................... 2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS................................................................................... 4
LIST OF ABBREVIATIONS .................................................................................................................................. 8
NOTES ON CLAUSES ......................................................................................................................................... 9
Part 1 Preliminary........................................................................................................................................ 9
Clause 1 - Short title ........................................................................................................................................... 9
Clause 2 - Commencement ................................................................................................................................ 9
Clause 3 - Simplified Outline of this Act ............................................................................................................. 9
Clause 4 - Definitions ......................................................................................................................................... 9
Part 2 Establishment and functions of the National Skills Commissioner................................................... 10
Clause 5 - Simplified outline of this Part .......................................................................................................... 10
Clause 6 - National Skills Commissioner .......................................................................................................... 10
Clause 7 - Functions of the National Skills Commissioner ............................................................................... 10
Clause 8 - Establishment and functions of advisory committees .................................................................... 11
Clause 9 - Members of advisory committees................................................................................................... 12
Clause 10 - Ministerial directions..................................................................................................................... 13
Part 3 Administration ................................................................................................................................ 14
Clause 11 - Simplified outline of this Part ........................................................................................................ 14
Clause 12 - Appointment ................................................................................................................................. 14
Clause 13 - Acting appointments ..................................................................................................................... 14
Clause 14 - Remuneration ................................................................................................................................ 15
Clause 15 - Leave of absence ........................................................................................................................... 15
Clause 16 - Engaging in other paid work .......................................................................................................... 15
Clause 17 - Other terms and conditions .......................................................................................................... 15
Clause 18 - Resignation .................................................................................................................................... 15
Clause 19 - Termination of appointment ......................................................................................................... 16
Clause 20 - Application of the finance law etc. ................................................................................................ 16
Clause 21 - Arrangements relating to staff of the Department ....................................................................... 16
Clause 22 - Other persons assisting the Commissioner ................................................................................... 17
Clause 23 - Consultants .................................................................................................................................... 17
Part 4 Miscellaneous ................................................................................................................................. 18
Clause 24 - Simplified outline of this Part ........................................................................................................ 18
Clause 25 - Delegation ..................................................................................................................................... 18
Clause 26 - Rules .............................................................................................................................................. 19
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NATIONAL SKILLS COMMISSIONER BILL 2020
OUTLINE
The purpose of the National Skills Commissioner Bill 2020 (the Bill) is to establish a new
statutory office, the National Skills Commissioner (the Commissioner), and specify the
Commissioner's functions. The Commissioner would be supported by employees of the
Department of Education, Skills and Employment (the Department), who would be subject
to the directions of the Commissioner. The Commissioner would be head of the relevant
area of the Department to be known as the National Skills Commission (the Commission).
The Commissioner would be a critical new part of Australia's economic institutional
infrastructure, providing independent and national leadership on skills, the labour market
and workforce development issues.
On 28 November 2018, the Prime Minister, the Hon Scott Morrison MP, announced an
independent review of Australia's vocational education and training (VET) sector to examine
ways to deliver skilled workers for a stronger economy. One of the key recommendations of
the 2019 expert review by the Honourable Steven Joyce, Strengthening Skills: Expert Review
of Australia's Vocational Education and Training System (the Joyce review), was that the
Commonwealth set up a National Skills Commission at the core of the skills system. The
Joyce review can be found at https://pmc.gov.au/resource-centre/domestic-policy/vet-
review/strengthening-skills-expert-review-australias-vocational-education-and-training-
system.
The Commissioner would have an advisory function, providing advice to the Minister and
Secretary of the Department in relation to: Australia's current, emerging, and future
workforce needs; the development of efficient prices for VET courses; the public and private
return on government investment in VET qualifications; the performance of Australia's
system for providing VET; and issues affecting the state of the Australian and international
labour markets. The Commissioner would also collect and analyse data to inform policy
development and program delivery. The Bill would also enable the establishment of
advisory committees to advise the Commissioner.
The Commissioner would therefore support a stronger, more agile VET system in two key
ways. By consolidating and strengthening labour market analysis, the Commissioner would
provide an independent and trusted source of information about what is occurring in the
labour market, plausible trends and skill needs. The Commissioner would lead a strong
research and analysis function, drawing on emerging data analytic techniques to ensure
Australia's labour market analysis capability is world leading. Having access to this
information is essential for governments, tertiary education providers, employers and
students to help them make smart choices about how to invest in training and skilling
Australians.
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The Commissioner would develop and maintain a set of efficient prices for VET courses.
Currently VET prices and subsidies vary considerably around Australia, with students paying
different prices for the same course, with differences in the quality of the course. The
Commissioner would examine the cost drivers for courses, the different public and private
returns for courses, and develop a list of efficient prices for courses. Core to this will be
consideration of quality - efficient price does not necessarily mean lowest price, rather it
means the price that needs to be paid to secure training that delivers students with the skills
employers need and sets students up for a valuable career.
The Commissioner would examine the effectiveness of investment in the VET system and
advise on the public and private returns on government investment. This would enable
governments to direct investment towards high quality courses that give students the best
chance of getting a job, while strengthening Australia's economy and society.
A strong VET sector is critical to our economy and helping prepare Australians for the
workforce opportunities of today and the future. VET, one of the key career pathways, can
further improve our capacity to grow, compete and thrive in a global economy.
Together with the National Vocational Education and Training Regulator Amendment
(Governance and Other Matters) Bill 2020, the Bill would deliver some of the key elements
of the Joyce Review. Together these Bills would help to drive an improvement in the quality,
relevance and accessibility of the VET system and best position the VET system to underpin
Australia's economic recovery.
FINANCIAL IMPACT STATEMENT
In the 2019-20 Budget, the Australian Government announced investment of $48.3 million
in the establishment of the Commission to better understand how the economy is changing
and how skills needs are changing in order to develop crucial advice on options for
forecasting labour market demand for skills and efficient pricing for VET.
CONSULTATION
Broad consultation occurred on the design of the Commission through a co-design process
from October to December 2019, under the guidance of the interim Commissioner Mr Adam
Boyton. The co-design process included public submissions, workshops, one-on-one
interviews and small round-table discussions. Five hundred and thirty six people from 398
organisations attended workshops held in every capital city and an additional five regional
locations (Bendigo, Cairns, Orange, Karratha, and Mount Isa) between 3 October 2019 and
26 November 2019. The workshops were complemented by 35 individual consultations with
key stakeholders (including business corporations, major unions, peak bodies, and not for
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profit organisations) from across the sector, including senior VET officials from each state
and territory (except Tasmania). Two roundtable events were held with small and medium
employers. A total of 59 submissions were made to the discussion paper.
There was a clear view amongst stakeholders (including employers, states/territories,
unions and peak bodies) that the new Commission should be independent, enduring,
transparent and authoritative.
State and territory Skills Ministers have been consulted on the design of the Commission
and are continuing to be engaged on the implementation of the Skills Package through the
development of the COAG VET Reform Roadmap.
Feedback from stakeholders on the functions of the Commission have directly informed the
design of the Commissioner's functions and powers outlined in this Bill.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Skills Commissioner Bill 2020
The National Skills Commissioner Bill 2020 (the Bill) is 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 National Skills Commissioner Bill 2020 (the Bill) is to establish a new
statutory office, the National Skills Commissioner (the Commissioner), and specify the
Commissioner's functions. The Commissioner would be supported by employees of the
Department of Education, Skills and Employment (the Department), who would be subject
to the directions of the Commissioner. The Commissioner would be head of the relevant
area of the Department to be known as the National Skills Commission (the Commission).
The Commissioner would be a critical new part of Australia's economic institutional
infrastructure, providing independent and national leadership on skills, the labour market
and workforce development issues.
The Commissioner would have an advisory function, providing advice to the Minister and
Secretary of the Department in relation to: Australia's current, emerging, and future
workforce needs; the development of efficient prices for vocational education and training
(VET) courses; the public and private return on government investment in VET
qualifications; the performance of Australia's system for providing VET; and issues affecting
the state of the Australian and international labour markets. The Commissioner would also
collect and analyse data to inform policy development and program delivery. The Bill would
enable the establishment of advisory committees to advise the Commissioner.
Human rights implications
The Bill engages the following human 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;
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. In particular,
Article 13(2)(b) states that secondary education, including technical and vocational
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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.
By establishing the statutory position of the National Skills Commissioner the Bill promotes
the right to education because it enables the Commissioner to provide leadership,
independence, and an authoritative voice on national skills needs, determine efficient prices
for quality VET qualifications, and undertake rigorous analysis on the outcomes of VET
investment.
Relevantly, the functions of the Commissioner would include:
Providing advice to the Minister in relation to: Australia's current, emerging, and future
workforce needs; the development of efficient prices for VET courses; the public and
private return on government investment in VET qualifications; the performance of
Australia's system for providing VET; and issues affecting the state of the Australian and
international labour markets.
Informing the public about the various matters mentioned above.
Collecting, analysing, sharing, and publishing data and other information about the
matters mentioned above.
These functions would strengthen the integrity and quality of the VET sector, as well as
safeguard the interests of students who are engaged in VET. These functions would 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 the statutory position of the National Skills Commissioner the Bill would
improve and enhance the National VET system. The Commissioner would play a crucial role
5
in developing advice on options for an efficient pricing for VET and forecasting labour
market demand for skills. The Commissioner would also lead the establishment and ongoing
refinement of a robust evidence base to inform improvements to the VET system to benefit
students, workers and employers.
The measures in the Bill therefore enhance the realisation of the right to work by identifying
the skills that contribute to a student's employability through better information on the
technical and vocational guidance and training programs available that provide the skills and
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 the Commissioner include collecting, analysing, sharing and publishing
voluntarily provided VET data and other information to inform policy development and
program delivery.
In particular:
To perform the National Skills Commissioner's functions in relation to labour market
analysis, the National Skills Commissioner would not rely on personal information.
Rather it would collect, use and share aggregate information on the demand for
employees, such as information on job vacancies and information provided
voluntarily by employers on the skills in demand.
To perform the National Skills Commissioner's function in relation to efficient prices,
the National Skills Commissioner would collect, use and share information on the
cost of delivering VET courses. This information would be provided voluntarily by
registered training organisations and others, to help inform the establishment of
efficient prices. The Commissioner would also examine the student outcomes
achieved as a result of course completion, drawing on voluntary student surveys.
This information will be aggregated and de-identified.
As the VET data to be collected, shared and published would have been voluntarily provided
by the subjects of that data and its usage will be consistent with the consent provided by
the subjects, the Bill would promote the right to privacy. The National Skills Commission
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would be subject to the requirements under the Department's Australian Privacy Principle
entity responsibilities, and would take reasonable steps to protect personal information it
holds 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 Employment, Skills, Small and Family Business,
Senator the Hon Michaelia Cash
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LIST OF ABBREVIATIONS
Acts Interpretation Act Acts Interpretation Act 1901
Bill National Skills Commissioner Bill 2020
Commissioner National Skills Commissioner
Department Department of Education, Skills and
Employment
Legislation Act Legislation Act 2003
PGPA Act Public Governance, Performance and
Accountability Act 2013
Public Service Act Public Service Act 1999
Secretary Secretary of the Department
VET vocational education and training
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NATIONAL SKILLS COMMISSIONER BILL 2020
NOTES ON CLAUSES
Part 1
Preliminary
Outline of Part
1. This Part of the Bill provides for the preliminary provisions of the Bill, which includes
clauses on the short title of the Bill, the commencement, an outline and definitions.
Detailed explanation
Clause 1 - Short title
2. Should the Bill be enacted, this clause provides for the short title of the resulting Act to
be the National Skills Commissioner Act 2020.
Clause 2 - Commencement
3. The table in this clause provides that the whole of the Bill commences on the day after
the Bill receives the Royal Assent.
Clause 3 - Simplified Outline of this Act
4. This clause provides a simplified outline of the Bill. While simplified outlines are
included to assist readers to understand the substantive provisions of the Bill, the
outlines are not intended to be comprehensive. It is intended that readers should rely
on the substantive provisions.
Clause 4 - Definitions
5. This clause defines terms that appear in the Bill. These definitions include the following:
advisory committee means a committee established under clause 8.
Commissioner means the National Skills Commissioner referred to in clause 6.
paid work means work for financial gain or reward (whether as an employee, a
self-employed person or otherwise).
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.
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Part 2
Establishment and functions of the National Skills Commissioner
Outline of Part
6. This Part of the Bill establishes the office of the National Skills Commissioner and sets
out the Commissioner's functions. It also includes provisions providing the Minister with
a power to establish advisory committees to advise the Commissioner in relation to the
performance of the Commissioner's functions, and a power to issue Ministerial
directions to the Commissioner about the way in which the Commissioner is to carry
out their functions.
Detailed explanation
Clause 5 - Simplified outline of this Part
7. This clause provides a simplified outline of this Part. While simplified outlines are
included to assist readers to understand the substantive provisions of the Bill, the
outlines are not intended to be comprehensive. It is intended that readers should rely
on the substantive provisions.
Clause 6 - National Skills Commissioner
8. This clause provides that there is to be a National Skills Commissioner.
Clause 7 - Functions of the National Skills Commissioner
9. This clause prescribes the functions of the Commissioner. Subclause (1) provides that
functions of the Commissioner are:
to provide advice to the Minister or to the Secretary in relation to:
o Australia's current, emerging and future workforce skills needs;
o the development of efficient prices for VET courses;
o the public and private return on government investment in VET
qualifications;
o the performance of Australia's system for providing VET;
o issues affecting the state of the Australian and international labour markets;
and
to inform the public about the abovementioned matters; and
to collect, analyse, share and publish data and other information about the
abovementioned matters to inform policy development and program delivery; and
10
any other function that:
o is conferred on the Commissioner by the rules, this Act (once enacted), or by
any other law of the Commonwealth; or
o is incidental or conducive to the performance of the above functions.
10. The Commissioner will provide independent and national leadership on skills, the
labour market and workforce development issues. In doing this, the Commissioner will
lead a strong research and analysis function, drawing on emerging data analytic
techniques to ensure Australia's labour market analysis capability is world leading to
assist governments, tertiary education providers, employers and students make smart
choices about how to invest in training and skilling Australians.
11. The Commissioner will also develop and maintain a set of efficient prices for VET
courses by examining the cost drivers for courses, and the different public and private
returns for courses. An efficient price for a course does not mean the lowest price.
Central to this work will be a focus on quality, to determine the price that delivers the
skills that employers need and sets students up for a valuable career.
12. Subclause (2) provides that before the end of each calendar year beginning on or after
1 January 2021, the Commissioner must prepare and give to the Minister a report on
Australia's current, emerging and future workforce skills needs during the calendar
year. Subclause (3) requires the Minister to table the report in each House of the
Parliament as soon as practicable after receiving the report. Subclause (4) provides that
the Commissioner must then publish the report as soon as practicable after the report
is tabled in the House of Representatives. If the rules specify the manner in which the
report is to be published, the Commissioner must publish the report in that manner.
Otherwise, the Commissioner must publish the report on the Department's website.
13. This report will create an up to date and trusted resource for:
business and training providers to draw on to inform workforce planning;
the National Careers Institute to assist individuals to make informed decisions about
learning, training and work pathways;
students to make informed decisions about their future, based on better information
about their job prospects and incomes; and
Australian governments, as a robust basis for policy development.
Clause 8 - Establishment and functions of advisory committees
14. This clause allows the Minister to establish advisory committees to advise the
Commissioner in relation to the performance of the Commissioner's functions. The
Minister may determine a committee's terms of reference, the terms and conditions of
11
appointment of its members, and the procedures it is to follow. By establishing such
committees, the Minister will be able to ensure the Commissioner has access to expert
advice about skills needs from a range of qualified stakeholders, including those
representing industry.
15. Subclause (3) provides that in performing their functions, the Commissioner must have
regard to any relevant advice given to the Commissioner by an advisory committee.
Subclause (4) clarifies that subclause (3) does not, by implication, limit the matters to
which the Commissioner may have regard.
Clause 9 - Members of advisory committees
16. This clause prescribe the appointment arrangements for member of advisory
committees.
17. Subclauses (1) and (2) provide that each member of an advisory committee is to be
appointed by the Minister by written instrument and that the Minister is only to
appoint a person if the Minister is satisfied that the person has appropriate
qualifications, knowledge or experience. For example, such qualification and experience
might include a detailed understanding of the skill needs in one or more industry
sectors, Australia's current and emerging skilled occupational needs, the development
and provision of VET, labour market or VET policy experience, or qualifications in
specific disciplines relevant to the functions of the Commissioner, such as labour market
economics.
18. Subclause (3) provides that a member of an advisory committee is not an official of the
Department for the purposes of the PGPA Act.
19. Subclause (4) provides that a member of an advisory committee is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no determination of
that remuneration by the Tribunal is in operation, a member of an advisory committee
is to be paid the remuneration that is prescribed by the rules.
20. Subclause (5) provides that a member of an advisory committee must act in an
impartial and independent manner in relation to the giving of advice to the
Commissioner.
21. Subclauses (6) and (7) provide that a member of an advisory committee may resign
from the committee by giving the Minister a written resignation and the resignation
takes effect on the day it is received by the Minister or a later day specified by the
committee member in their resignation.
22. Subclauses (8) and (9) prescribe the circumstances in which the Minister may terminate
the appointment of a member of an advisory committee. The Minister may terminate
the appointment of a committee member for misbehaviour or if the member is unable
12
to perform their duties because of physical or mental incapacity. The Minister may also
terminate the appointment of a committee member if the member: becomes bankrupt;
applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;
compounds with their creditors; makes an assignment of their remuneration for the
benefit of their creditors; or fails to comply with the requirement in subclause (5) for
them to give advice in an impartial and independent manner.
Clause 10 - Ministerial directions
23. This clause will allow for the Minister to give the Commissioner directions about the
way in which the Commissioner is to carry out their functions. For example, as the
Commissioner's functions include giving advice about issues affecting the state of the
Australian and international labour markets, and collecting and analysing VET data and
other information, the Minister may direct the Commissioner, when performing these
functions, to consider how the VET sector can respond to the challenges posed by the
COVID-19 pandemic or other unforeseen shocks that may impact the economy and
labour market, such as a natural disaster.
24. The directions will be a legislative instrument. A note clarifies that section 42
(disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act do not apply to
directions given under subclause (1). Item 2 in section 9 (disallowance) and item 3 in
section 11 (sunsetting) of the Legislation (Exemptions and Other Matters) Regulation
2015 provide that instruments that are a direction by a Minister to any person or body
are an exempted class of instruments for the purpose of disallowance and sunsetting.
Those exemptions recognise that executive control is intended when an Act provides a
Minister with a power to issue such directions, and sunsetting is not appropriate for
such directions which are intended to remain in place until revoked by the Minister.
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Part 3
Administration
Outline of Part
25. Part 3 of the Bill deals with administrative matters relating to the office of the National
Skills Commissioner, including the appointment of the Commissioner and the terms and
conditions on which the Commissioner holds office.
Detailed explanation
Clause 11 - Simplified outline of this Part
26. This clause provides a simplified outline of this Part. While simplified outlines are
included to assist readers to understand the substantive provisions of the Bill, the
outlines are not intended to be comprehensive. It is intended that readers should rely
on the substantive provisions.
Clause 12 - Appointment
27. This clause provides that the Commissioner is to be appointed by the Minister by
written instrument. The Commissioner is to be appointed on a full-time basis for the
period specified in the instrument of appointment, which must not exceed 5 years.
28. A note under subclause (1) provides the Commissioner may be reappointed.
Section 33AA of the Acts Interpretation Act provides that if an Act confers a power to
make an appointment, the power is taken to include a power of reappointment.
29. Subclause (3) provides that a person may only be appointed as the Commissioner if the
Minister is satisfied that the person has appropriate qualifications, knowledge or
experience. Example of such knowledge, qualifications and experience include: relevant
tertiary qualifications; senior organisational leadership and innovation across
government or the private sector; knowledge and experience in the use of existing and
emerging data sources and cutting-edge analytic techniques to underpin research and
analysis; and strong representation, communication and stakeholder engagement skills.
Clause 13 - Acting appointments
30. This clause allows the Minister to appoint a person to act as the Commissioner during a
vacancy in the office of the Commissioner (whether or not an appointment has
previously been made to the office), or during any period when the Commissioner is
absent from duty or from Australia or is unable to perform the duties of the office.
14
31. A note under subclause 13(1) refer to rules that apply to acting appointments under
sections 33AB and 33A of the Acts Interpretation Act.
32. Subclause (2) provides that the Minister may only appoint a person to act as the
Commissioner if the Minister is satisfied that the person has appropriate qualifications,
knowledge or experience.
Clause 14 - Remuneration
33. This clause sets out the remuneration arrangements for the Commissioner.
Subclause (1) provides that the Commissioner is to be paid the remuneration that is
determined by the Remuneration Tribunal, and that if no determination of that
remuneration by the Tribunal is in operation, the Commissioner is to be paid the
remuneration that is prescribed by the rules. Subclause (2) provides that the
Commissioner is to be paid the allowances that are prescribed by the rules. This clause
has effect subject to the Remuneration Tribunal Act 1973.
Clause 15 - Leave of absence
34. This clause provides that the Commissioner has the recreation leave entitlements that
are determined by the Remuneration Tribunal and that the Minister may grant the
Commissioner other types of leave on the terms and conditions that the Minister
determines.
Clause 16 - Engaging in other paid work
35. This clause provides that the Commissioner must not engage in paid work outside the
duties of the Commissioner's office without the Minister's approval. The Bill contains a
definition of paid work, which means work for financial gain or reward (whether as an
employee, a self-employed person or otherwise). The Commissioner must not engage in
paid work without the Minister's approval to ensure that they are able to commit
themselves entirely to the role of the Commissioner and avoid any potential, real or
perceived conflicts of interest - upholding the principles of independence, transparency
and accountability.
Clause 17 - Other terms and conditions
36. This clause allows for the Minister to determine terms and conditions of the
Commissioner's appointment in relation to matters not covered by the Bill.
Clause 18 - Resignation
37. This clause provides that the Commissioner may resign their appointment by giving the
Minister a written resignation. The resignation takes effect on the day it is received by
the Minister or a later day if specified in the resignation.
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Clause 19 - Termination of appointment
38. This clause prescribes the circumstances in which the Minister may terminate the
appointment of the Commissioner. Subclause (1) provides that the Minister may
terminate the appointment of the Commissioner for misbehaviour, or if the
Commissioner is unable to perform the duties of their office because of physical or
mental incapacity.
39. Subclause (2) provides that the Minister may terminate the appointment of the
Commissioner if the Commissioner: becomes bankrupt; applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors; compounds with the
Commissioner's creditors; or makes an assignment of the Commissioner's remuneration
for the benefit of the Commissioner's creditors.
40. The Commissioner's appointment may also be terminated if: the Commissioner is
absent, except on leave of absence, for 14 consecutive days or for 28 days in any
12 months; engages, except with the Minister's approval, in paid work outside the
duties of the Commissioner's office; or the Commissioner fails, without reasonable
excuse, to comply with the requirements of officials to disclose conflicts interest under
section 29 of the PGPA Act or rules made for the purposes of that section.
Clause 20 - Application of the finance law etc.
41. This clause concerns the application of the finance law to the Commissioner. The
finance law has the meaning given by the PGPA Act, which defines the finance law as
including the PGPA Act, the Public Governance, Performance and Accountability Rule
2014, an instrument made under the PGPA Act, or an Appropriation Act. Subclause (1)
provides that for the purposes of the finance law, the Commissioner is taken to be an
official of the Department. As an official of a Commonwealth, the Commissioner will
have a number of duties under sections 25 to 29 of the PGPA Act.
42. Subclause (2) provides that when preparing the Department's annual report under
section 46 of the PGPA Act, the Secretary must include information in that report about
the performance of the Commissioner's functions, and the exercise of the
Commissioner's powers.
Clause 21 - Arrangements relating to staff of the Department
43. This clause allows for the Secretary to make employees of the Department available to
assist the Commissioner in connection with the performance of the Commissioner's
functions. When performing services for the Commissioner, these APS employees are
subject to the directions of the Commissioner.
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Clause 22 - Other persons assisting the Commissioner
44. This clause provides that, in addition to those employees of the Department made
available by the Secretary, the Commissioner may also be assisted by employees of
other Agencies (within the meaning of the Public Service Act) whose services are made
available to the Commissioner in connection with the performance of any of the
Commissioner's functions. Subclause (2) provide that when performing services for the
Commissioner, the employees are subject to the directions of the Commissioner.
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 Statutory Agency for the purposes of that Act.
The clause has been included to allow Commonwealth agencies other than the
Department making staff available to assist the Commissioner.
Clause 23 - Consultants
45. This clause allows for the Commissioner, on behalf of the Commonwealth, to engage
consultants to assist in the performance of the Commissioner's functions on the terms
and conditions that the Commissioner determines in writing. Examples of the work that
the Commissioner might engage consultants to perform include tasks or projects for
which the Department may not have sufficient in-house expertise, or where an
independent perspective is valuable.
17
Part 4
Miscellaneous
Outline of Part
46. This Part contains miscellaneous provisions, such as delegations and the general
rule-making power.
Detailed explanation
Clause 24 - Simplified outline of this Part
47. This clause provides a simplified outline of this Part. While simplified outlines are
included to assist readers to understand the substantive provisions of the Bill, the
outlines are not intended to be comprehensive. It is intended that readers should rely
on the substantive provisions.
Clause 25 - Delegation
48. This clause allows the Minister and Commissioner to delegate certain powers under the
Act. Subclause (1) provides that the Minister may, in writing, delegate the Minister's
powers under subclause 13(1) or 15(2), to the Secretary of the Department, or an SES,
or an acting SES employee, in the Department. These powers are the power to appoint
a person to act as the Commissioner, and the power to grant the Commissioner leave of
absence (other than recreation leave).
49. Subclause (2) provides that the Commissioner may, in writing, delegate all or any of
their functions or powers under this Act to a person who:
is a member of the staff assisting the Commissioner as mentioned in subclause 21(1);
or
a person whose services are made available to the Commissioner as mentioned in
subsection 22(1); and
holds or is acting in an Executive Level 2 position, or an equivalent or higher position.
50. It is necessary for the Commissioner to delegate their functions and powers to
Executive Level 2 staff or higher, as it is envisaged that it will be administratively
unfeasible for the Commissioner to personally exercise all of their functions and powers
under the Bill. The power to delegate any or all of the Commissioner's functions and
powers will allow the Commissioner to ensure all of their functions are effectively
exercised.
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51. 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
Commissioner, as the case requires.
52. Notes under subclauses (1) and (2) refer to sections 34AA to 34A of the Acts
Interpretation Act, which contain provisions relating to delegations.
Clause 26 - Rules
53. This clause enables rules to be made, 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, the
rules may confer additional functions on the Commissioner. The rules will also
determine the allowances that are to be paid to the Commissioner and may determine
the remuneration of Commissioner or advisory committee members if no
Remuneration Tribunal determinations are in place.
54. Dealing with these matters in rules rather than regulations accords with the Office of
Parliamentary Counsel's Drafting Direction No. 3.8 - Subordinate legislation, which can
be found at https://www.opc.gov.au/drafting-resources/drafting-directions. That
Drafting Direction states that 'OPC's starting point is that subordinate instruments
should be made in the form of legislative instruments (as distinct from regulations)
unless there is good reason not to do so'.
55. Consistent with the Drafting Direction, the approach of dealing with these matters in
rules (rather than regulations) has a number of advantages including:
it facilitates the use of a single type of legislative instrument (or a reduced number of
types of instruments) being needed for the Act; and
it enables the number and content of the legislative instruments under the Act to be
rationalised; and
it simplifies the language and structure of the provisions in the Act that provide the
authority for the legislative instruments; and
it shortens the Act.
56. Due to these advantages, the Drafting Direction states that drafters should adopt this
approach where appropriate with new Acts.
57. The Drafting Direction states that matters such as compliance and enforcement, the
imposition of taxes, setting amounts to be appropriated, and amendments to the text
of an Act, should be included in regulations unless there is a strong justification
otherwise. The Bill does not enable rules to provide for any of these matters. This is
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clarified by subclause (2), which specifically prevents rules from including these types of
matters.
58. This clause also clarifies that the rules made under the clause are a legislative
instrument for the purposes of the Legislation Act. Under that Act, legislative
instruments and their explanatory statements must be tabled in both Houses of the
Parliament within 6 sitting days of the date of registration of the instrument on the
Federal Register of Legislation. Once tabled, the rules will be subject to the same level
of parliamentary scrutiny as regulations (including consideration by the Senate Standing
Committee for the Scrutiny of Delegated Legislation), and a motion to disallow the rules
may be moved in either House of the Parliament within 15 sitting days of the date the
rules are tabled.
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