Education Standards Act 2001

  • This version includes a correction to section 69(2) made under section 25(j)(iii) and 25(j)(iv) of the Legislation Act 2012.
47 New heading and sections 195A to 195G inserted

The principal Act is amended by inserting, after section 195, the following heading and sections:

Institutions at risk

195A Criteria for risk assessment of institutions

(1)

The Secretary must, after consulting with institution Councils, determine criteria for assessing the level of risk to the operation and long-term viability of institutions.

(2)

The Secretary must publish criteria determined under subsection (1) in the Gazette.

(3)

Criteria determined under this section must be reviewed at least once in every 2 years following the date of their publication in the Gazette.

195B Institutions to provide information if required

(1)

The Secretary may, if he or she has reasonable grounds to believe that an institution may be at risk, by written notice to the Council of an institution, require the Council to provide either or both of the following:

(a)

specified information about the operation, management, or financial position of the institution at a given time:

(b)

reports at specified intervals on specific aspects of the operation, management, or financial position of the institution.

(2)

If the Secretary requires information under subsection (1), the information required must be information that relates to the risks to the institution that the Secretary is concerned about.

(3)

A Council that receives a notice under subsection (1) must provide the Secretary with the required information within or at the time or times specified in the notice.

(4)

The Secretary may revoke or amend any notice given under subsection (1).

(5)

Nothing in this section limits section 45B of the Public Finance Act 1989.

195C Minister may appoint Crown observer

(1)

If the Minister considers on reasonable grounds that the operation or long-term viability of an institution is at risk, he or she may appoint a Crown observer to the Council of the institution.

(2)

A Crown observer may not be appointed to the Council of an institution unless the Minister has first—

(a)

consulted with the Council; and

(b)

advised the Council that he or she is considering appointing a Crown observer; and

(c)

given the Council an opportunity to comment on the proposal.

(3)

Every appointment under this section must be in writing and must state the date on which it takes effect.

(4)

A Crown observer may—

(a)

attend any meeting of the Council or committee of the Council of the institution to which he or she is appointed; and

(b)

offer advice to the Council, or any committee or member of the Council; and

(c)

report to the Minister on any matter raised or discussed at any meeting that he or she attends as a Crown observer.

(5)

A Crown observer must at all times maintain confidentiality with respect to Council affairs, except as authorised by paragraph (c) of subsection (4).

(6)

A Crown observer is not a member of the Council or any committee of the Council, and may not—

(a)

vote on any matter; or

(b)

exercise any of the powers, or perform any of the functions or duties, of a member of the Council.

195D Minister may dissolve Council and appoint commissioner

(1)

The Minister may, by written notice, dissolve the Council of an institution and appoint a commissioner to act in place of the Council if the Minister believes on reasonable grounds that—

(a)

there is a serious risk to the operation or long-term viability of the institution; and

(b)

other methods of reducing the risk either have failed or appear likely to fail.

(2)

For the purpose of subsection (1), there is a serious risk to the operation or long-term viability of an institution if—

(a)

the institution is, or is at risk of being, unable to pay its debts as they become due in the normal course of business; and

(b)

according to the criteria published under section 195A(2), there is a serious level of risk to the operation or long-term viability of the institution.

(3)

A notice under subsection (1) must specify—

(a)

the date when the dissolution and appointment take effect; and

(b)

the name of the person appointed as commissioner.

(4)

The Minister may not exercise the power under subsection (1) in relation to an institution unless he or she has first—

(a)

consulted with the Council of the institution and any other interested parties over the possible need to dissolve the Council and appoint a commissioner; and

(b)

following that consultation, given the Council written notice of his or her preliminary decision that the Council should be dissolved and a commissioner appointed in its place; and

(c)

allowed the Council at least 21 days in which to respond to the preliminary decision; and

(d)

considered any submissions made by the Council about why the preliminary decision should not be confirmed.

(5)

As soon as practicable after giving a notice under subsection (1), the Minister must—

(a)

publish a copy of it in the Gazette; and

(b)

present a copy of it to the House of Representatives.

(6)

When a commissioner is appointed under this section, the Minister must review the appointment at least once in every 12 months following the appointment.

(7)

As soon as the Minister is satisfied (following an annual review or at any other time) that the risk that gave rise to the appointment of the commissioner has reduced to such an extent that is it appropriate that the institution be administered by a Council, a new Council must be appointed in accordance with the constitution of the Council most recently notified in the Gazette.

(8)

A commissioner’s appointment ends on the close of the day before a new Council takes office.

195E Powers and functions of commissioner

(1)

A commissioner appointed under section 195D has all the powers, functions, and duties of the Council that he or she is appointed to replace, and must exercise those powers and perform those functions and duties in accordance with this Act (having particular regard to sections 160 and 161) and the institution’s charter.

(2)

A commissioner replaces all Council members who serve on any committee of the Council that he or she is appointed to replace.

(3)

Anything that, if done by or on behalf of a Council, is required to be signed by 2 or more members of the Council, may be done by the commissioner’s signature alone.

195F Minister to appoint advisory committee

(1)

If the Minister appoints a commissioner under section 195D, the Minister must also appoint an advisory committee for the purpose of advising and supporting the commissioner in the exercise of the commissioner’s functions, duties, and powers.

(2)

The Minister may appoint up to 5 persons to be members of an advisory committee and must ensure that the composition of the committee reasonably reflects the community of the institution as represented by its Council at the time of the Council’s dissolution.

(3)

Members of an advisory committee may be paid fees at the same rates as were paid to members of the Council at the time of its dissolution.

(4)

The commissioner must have regard to any advice given by an advisory committee.

(5)

For the purposes of section 222(1) (which is about delegations by the Council to committees), an advisory committee is deemed to be a committee appointed under section 193(3).

195G Review of operation of sections 195A to 195F

No later than 5 years from the date on which sections 195A to 195F come into force, the Minister must—

(a)

review, in consultation with interested parties, the operation of sections 195A to 195F; and

(b)

prepare a report of the review that includes recommendations on whether any amendment to those sections is necessary or desirable; and

(c)

present a copy of the report to the House of Representatives.