2019 - 2020 THE PARLIAMENT OF THE COMMONWEALTH OF

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)

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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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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.

https://pmc.gov.au/resource-centre/domestic-policy/vet-review/strengthening-skills-expert-review-australias-vocational-education-and-training-system



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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

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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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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.


Clause 5 - Simplified outline of this Part

7. This clause provides a simplified outline of this Part. While simplified outlines are




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

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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

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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

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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.







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.

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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.

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Part 4 Miscellaneous

Outline of Part

46. This Part contains miscellaneous provisions, such as delegations and the general

rule-making power.







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

https://www.opc.gov.au/drafting-resources/drafting-directions

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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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