Education (Tertiary Reforms) Amendment Act 2007

20 New headings and sections 159L to 159YO substituted
  • Sections 159L to 159Z and the headings above sections 159L and 159W are repealed and the following headings and sections substituted:

    Funding mechanisms

    159L Minister determines design of funding mechanisms
    • (1) The Minister must, from time to time, determine the design of the funding mechanisms that the Commission must use to fund organisations.

      (2) Without limiting subsection (1), in making a determination under that subsection, the Minister must—

      • (a) identify the general form and essential components of each funding mechanism; and

      • (b) indicate which of the funding mechanisms relates to—

        • (i) funding to be paid by the Commission under section 159YA (relating to funding organisations via plans); and

        • (ii) funding to be paid by the Commission under section 159ZC (relating to funding organisations under this Part other than via plans); and

        • (iii) other types of funding (if any).

      (3) Without limiting subsection (1), in making a determination under that subsection, the Minister may—

      • (a) specify the amount of money, or the proportion of an amount of money, available under any particular funding mechanism; and

      • (b) provide for funding to different groups of organisations or types of organisation; and

      • (c) provide for different versions of, or modifications to, a funding mechanism when applying it to different groups of organisations or types of organisation; and

      • (d) specify conditions that the Commission must attach to funding that is provided under any funding mechanism including, without limitation, conditions setting limits on the fees that an organisation may charge domestic students; and

      • (e) provide for funding that targets particular groups of students.

    159M Restrictions on design of funding mechanisms
    • In determining a design for a funding mechanism under section 159L, the Minister may not—

      • (a) identify a specified organisation or organisations to which funding is to be provided or denied under any funding mechanism; or

      • (b) specify conditions under section 159L(3)(d) that set limits on the fees that organisations may charge domestic students until 2 months after the date on which the Minister has published a notice in the Gazette that—

        • (i) states that the Minister proposes to specify conditions of that kind; and

        • (ii) sets out the proposed conditions; and

        • (iii) invites submissions on the proposed conditions; and

        • (iv) specifies the date by which submissions must be received, which must be a date no later than 21 days after the date of the Gazette notice.

    159N Funding mechanisms consistent with quality assurance principle
    • Every funding mechanism must be consistent with the principle that receiving public funds is dependent on an organisation meeting the quality assurance requirements in this Act.

    159O Commission to implement funding mechanisms
    • The Commission must—

      • (a) develop the details of how to implement the Minister's determination of the design of funding mechanisms under section 159L; and

      • (b) implement the funding mechanisms.

    Requirements for, and content of proposed plans

    159P Requirements for proposed plans
    • A proposed plan must—

      • (a) describe how an organisation will give effect to the Government's current and medium-term priorities as described in the tertiary education strategy; and

      • (b) describe how an organisation will address the needs of its stakeholders (including, without limitation, students enrolled with the organisation); and

      • (c) describe an organisation's mission and role for the term of the plan; and

      • (d) set out a description of all—

        • (i) tertiary education programmes run by the organisation for which the organisation is seeking funding under section 159YA and specify the amount of funding sought in relation to those programmes; and

        • (ii) activities (including, without limitation, programmes and initiatives that will be undertaken by the organisation in order to build its capability) for which the organisation is seeking funding under section 159YA and specify the amount of funding sought in relation to those activities; and

      • (e) describe an organisation's proposed outcomes (including, without limitation, in relation to the tertiary education programmes and activities described in paragraph (d)(i) and (ii) in relation to which funding is sought) and the performance indicators that the organisation will use to measure whether those outcomes have been achieved; and

      • (f) set out a description of all tertiary education programmes run by the organisation other than those in relation to which funding is sought.

    159Q Exemption from certain requirements for proposed plans
    • (1) The Commission may, by notice in writing, exempt an organisation from having to comply with the requirements in section 159P(f).

      (2) The Commission may not exercise the power in subsection (1) in relation to an institution.

      (3) Before exempting an organisation under subsection (1), the Commission must consider—

      • (a) the amount of funding sought by the organisation; and

      • (b) the amount of funding already received by the organisation; and

      • (c) the type and size of the organisation; and

      • (d) the effective operation of the tertiary education system; and

      • (e) the Government's current and medium-term priorities as described in the tertiary education strategy; and

      • (f) any other matters the Commission considers relevant.

    159R Content of, and processes for submitting, proposed plans prescribed by Commission
    • (1) The Commission must prescribe and give public notice of—

      • (a) the content of organisations' proposed plans (being the particular matters that proposed plans must address or include in order to meet the requirements in section 159P); and

      • (b) the kinds of background or supplementary information that the Commission requires an organisation to provide in relation to a proposed plan; and

      • (c) the timetable and process for the submission of proposed plans to the Commission.

      (2) When prescribing matters under subsection (1), the Commission may include—

      • (a) standard content, as well as different content applying to different organisations, groups of organisations, or types of organisation; and

      • (b) different information, timetables, and processes for different organisations, groups of organisations, or types of organisation.

      (3) Notices given under subsection (1) may be—

      • (a) given at different times; and

      • (b) amended by the Commission.

      (4) The Commission must give public notice of a significant amendment made under subsection (3)(b).

    159S Commission may exempt organisation from complying with certain matters
    • The Commission may, by notice in writing, exempt an organisation from complying with any of the matters it has prescribed under section 159R(1).

    Submitting proposed plan

    159T Who must submit proposed plan
    • (1) An organisation that is seeking funding from the Commission under a funding mechanism that provides for funding via plans must submit a proposed plan.

      (2) Subsection (1) does not apply to an organisation that is exempt under section 159U.

    159U Exemption from requirement to submit proposed plan
    • (1) The Commission may, by notice in writing, exempt an organisation, a group of organisations, or a type of organisation that is seeking funding under a funding mechanism that provides for funding via plans from the requirement, in section 159T(1), to submit a proposed plan.

      (2) The Commission may not exercise the power in subsection (1) in relation to an institution.

      (3) The Commission may exempt an organisation, a group of organisations, or a type of organisation under subsection (1) for a specified period that the Commission considers appropriate.

    159V Frequency of submitting proposed plans
    • An organisation that is required to submit a proposed plan must submit a proposed plan to the Commission—

      • (a) at least once every 3 years; or

      • (b) if the Commission directs, at more frequent intervals specified by the Commission.

    159W Submitting combined proposed plan
    • The Commission may permit more than 1 organisation to prepare and submit a combined proposed plan if the Commission considers it appropriate.

    Preparing and consulting on proposed plans

    159X Preparing and consulting on proposed plans
    • (1) An organisation that is required to submit a proposed plan must prepare the proposed plan in accordance with this Part (including, unless it is exempt under section 159S, complying with the matters prescribed by the Commission under section 159R).

      (2) A proposed plan must be prepared in consultation with—

      • (a) the stakeholders that the organisation considers ought to be consulted; and

      • (b) any other person or group of persons that the Commission stipulates.

      (3) An organisation must develop the content of its proposed plan in collaboration with the Commission, including collaborating with the Commission about ways in which the organisation can implement the matters prescribed by the Commission under section 159R.

      (4) After completing the requirements in subsections (1) to (3), an organisation must submit its proposed plan to the Commission.

    Assessment of proposed plans and giving of funding approval

    159Y Criteria for assessing proposed plans
    • (1) The Commission must prescribe and give public notice of the criteria that the Commission will use to assess proposed plans to determine if they will receive funding approval.

      (2) The prescribed criteria must include, without limitation, criteria for assessing—

      • (a) how an organisation contributes to the Government's current and medium-term priorities described in the tertiary education strategy; and

      • (b) the tertiary education programmes and activities of an organisation in relation to which funding is sought under section 159YA; and

      • (c) the performance indicators used in measuring whether the specified outcomes relating to those tertiary education programmes and activities are being or have been achieved; and

      • (d) the extent and nature of an organisation's consultation over its proposed plan.

      (3) When prescribing matters under subsection (1), the Commission may include standard criteria, as well as different criteria applying to different organisations, groups of organisations, or types of organisation.

      (4) Notices given under subsection (1) may be—

      • (a) given at different times; and

      • (b) amended by the Commission.

      (5) The Commission must give public notice of a significant amendment made under subsection (4)(b).

    159YA Commission's assessment of proposed plans, giving of funding approval, and payment of funding
    • (1) The Commission must assess whether a proposed plan will receive funding approval by applying the assessment criteria prescribed under section 159Y.

      (2) After applying the assessment criteria, the Commission may decide to—

      • (a) fund (in whole or in part) all of the tertiary education programmes and activities described in the proposed plan under section 159P(d)(i) and (ii) in relation to which funding is sought; or

      • (b) fund (in whole or in part) some of the tertiary education programmes and activities described in the proposed plan under section 159P(d)(i) and (ii) in relation to which funding is sought; or

      • (c) not fund any of the tertiary education programmes or activities described in the proposed plan under section 159P(d)(i) and (ii) in relation to which funding is sought.

      (3) Before deciding not to fund some or any, or part of some or any, of the tertiary education programmes or activities described in the proposed plan under section 159P(d)(i) and (ii) in relation to which funding is sought, the Commission must—

      • (a) notify the organisation of its proposed decision; and

      • (b) give the organisation a reasonable opportunity to be heard.

      (4) The Commission must give its reasons to the affected organisation if it decides not to fund some or any, or part of some or any, of the tertiary education programmes or activities described in the proposed plan under section 159P(d)(i) and (ii) in relation to which funding is sought.

      (5) In deciding to give funding approval, the Commission must—

      • (a) specify the date from which that funding approval has effect; and

      • (b) determine the amount of funding payable to the organisation by applying the appropriate funding mechanism; and

      • (c) arrange for the payment to the organisation of the amount of funding determined under paragraph (b).

    159YB Commission may decline to assess proposed plan
    • (1) The Commission may decline to assess a proposed plan under section 159YA if the Commission is satisfied on reasonable grounds that the proposed plan does not adequately satisfy the requirements of this Part (including, unless the organisation is exempt under section 159S, complying with the matters prescribed by the Commission under section 159R).

      (2) Before making a decision to decline to assess an organisation's proposed plan, the Commission must discuss with the organisation why the proposed plan does not adequately satisfy the requirements of this Part.

      (3) The Commission must give its reasons to the affected organisation if it declines to assess the organisation's proposed plan.

    159YC Conditions on receiving funding under section 159YA
    • (1) It is a condition of an organisation receiving funding under section 159YA that the organisation will supply to the Commission or Ministry, from time to time as required by the Commission or Ministry, and in a form specified by the Commission or Ministry, any financial, statistical, or other information that the Commission or Ministry requires the organisation to supply.

      (2) The Commission may give funding approval subject to conditions, but only if the conditions are—

      • (a) conditions the Minister has determined the Commission must attach to funding under section 159L(3)(d); or

      • (b) conditions that the Commission considers necessary to ensure that the specified outcomes in a plan that relate to tertiary education programmes and activities in relation to which funding is being given are being achieved or will be achieved.

      (3) The Commission may at any time (including during a funding period) amend any condition imposed under subsection (2).

      (4) The amendment to the condition takes effect when the organisation has been given reasonable notice of it.

    159YD Accountability for funding received under section 159YA
    • (1) An organisation (other than an institution) that receives funding under section 159YA must ensure that—

      • (a) it keeps records, in a form consistent with that required by the Commission, for the period to which the funding relates, that fully and fairly show—

        • (i) the transactions, assets, liabilities, and funds of the organisation that are or were affected by the funding; and

        • (ii) whether any conditions on which the funding approval was given have been complied with; and

      • (b) the records are available for inspection by the Commission at all reasonable times.

      (2) As soon as practicable after the end of any year in which an organisation (other than an institution) receives funding under section 159YA, the organisation must provide the Commission with—

      • (a) a financial report of the organisation for that year, including a statement of financial performance, a statement of financial position, a statement of movements in equity, a statement of cash flows, and a statement of service performance that compares the performance of the organisation with the outcomes specified in the organisation's plan as measured by the performance indicators specified in the organisation's plan; and

      • (b) any financial reports, or statistical or other information, required by the Commission; and

      • (c) any information necessary to demonstrate compliance with any condition attached to the funding.

      (3) A report required under subsection (2)(a) must be prepared in accordance with generally accepted accounting practice and must be audited by an independent chartered accountant.

      (4) The Commission may exempt any organisation, group of organisations, or types of organisation from complying with 1 or more of the requirements set out in subsections (2) and (3).

      (5) In exercising the powers conferred on it by subsection (4), the Commission must have regard to—

      • (a) the amount of funding sought by the organisation; and

      • (b) the amount of funding received by the organisation; and

      • (c) the type and size of the organisation; and

      • (d) any other matters that the Commission considers relevant.

      (6) Section 203 sets out the accountability requirements for institutions.

    Expiry of funding approval

    159YE Expiry of funding approval
    • (1) Every plan that has funding approval must specify the date on which funding approval expires (the expiry date), which must be a date determined by the Commission that is no later than 3 years after the date on which the funding approval takes effect.

      (2) Funding approval expires on the expiry date, unless funding approval is earlier revoked under this Part.

      (3) Despite subsection (2), if, on the expiry date, an organisation is discussing a proposed plan with the Commission or the proposed plan is awaiting funding approval under this Part, the funding approval for the existing plan continues in effect until the earlier of the following dates:

      • (a) the date that is 6 months after the expiry date of the existing funding approval; or

      • (b) the date that funding approval for the proposed plan comes into effect.

    159YF Effect of expiry of funding approval
    • The effect of the expiry of funding approval is that—

      • (a) the plan to which funding approval relates expires; and

      • (b) the Commission must cease payment, or cease any or all further payments, of funding under section 159YA in respect of that plan.

    Suspension or revocation of funding given under section 159YA

    159YG Commission may suspend or revoke funding given under section 159YA
    • (1) The Commission may suspend or revoke some or all funding given under section 159YA if it is satisfied on reasonable grounds that—

      • (a) an organisation has not complied, or is not complying, with a condition on which funding has been given under section 159YA; or

      • (b) when measured against performance indicators, the organisation has not achieved, or is not achieving, an outcome anticipated in its plan for a tertiary education programme or activity in relation to which funding has been given under section 159YA; or

      • (c) the organisation has not provided, or is not providing, adequate and timely information required by the Commission or Ministry under section 159YC.

      (2) Before deciding whether to suspend or revoke some or all funding given under section 159YA, the Commission must—

      • (a) notify the organisation of the specific matters of concern; and

      • (b) give the organisation a reasonable opportunity to be heard.

      (3) The Commission must give its reasons to an organisation if it decides to suspend or revoke some or all funding given under section 159YA.

      (4) The Commission must advise an organisation of the following matters if it decides to suspend some or all funding given under section 159YA:

      • (a) the date on which the suspension will end and, as a consequence, some or all funding will be revoked; and

      • (b) what action the organisation must take in order to have the suspension lifted and avoid some or all funding being revoked.

      (5) A suspension must be for a period that the Commission considers reasonable, having considered—

      • (a) the specific matters referred to in subsection (2)(a); and

      • (b) the action referred to in subsection (4)(b).

    159YH Extending suspension of funding
    • (1) The date on which a suspension ends under section 159YG(4)(a) may be extended by the Commission.

      (2) The Commission must advise an organisation of the following matters if it decides to extend the date on which a suspension will end:

      • (a) the date on which the extended suspension will end and, as a consequence, some or all funding for all or part of the plan will be revoked; and

      • (b) what action the organisation must take in order to have the extended suspension lifted and avoid some or all funding for all or part of the plan being revoked.

      (3) An extension of a suspension must be for a period that the Commission considers reasonable, having considered—

      • (a) the specific matters referred to in section 159YG(2)(a); and

      • (b) the action referred to in section 159YG(4)(b).

    159YI Effect of suspending or revoking funding given under section 159YA
    • (1) The effect of suspending funding given under section 159YA is that the Commission must cease payment, or cease any or all further payments, of funding given under section 159YA in respect of the plan or part of the plan in relation to which funding has been suspended.

      (2) The effect of revoking funding given under section 159YA is that—

      • (a) the plan or part of the plan to which the funding relates is revoked; and

      • (b) the Commission must cease payment, or cease any or all further payments, of funding under section 159YA in respect of the plan or part of the plan in relation to which funding has been revoked.

    159YJ Review of decision by delegate to suspend or revoke funding given under section 159YA
    • (1) Subsection (2) applies to an organisation in relation to which a person has exercised any of the following powers under a delegation from the Commission under section 73 of the Crown Entities Act 2004:

      • (a) suspending funding under section 159YG; or

      • (b) revoking funding under section 159YG; or

      • (c) extending the suspension of funding under section 159YH.

      (2) An organisation to which this subsection applies may ask the Commission to review the decision of the delegate.

    Amending or replacing plans

    159YK Organisation may seek approval for significant amendment, or replacement, of plan
    • (1) In this section and sections 159YL to 159YN, significant amendment means an amendment to a plan that relates to—

      • (a) a tertiary education programme or an activity in relation to which funding has been given under section 159YA; or

      • (b) any of the performance indicators that an organisation uses to measure whether proposed outcomes for tertiary education programmes or activities in relation to which funding has been given under section 159YA are being or have been achieved.

      (2) An organisation may, at any time, ask the Commission to approve a significant amendment to, or the replacement of, a plan.

      (3) An organisation that proposes to make a significant amendment to, or to replace, a plan must consult with—

      • (a) the stakeholders that the organisation considers ought to be consulted; and

      • (b) any other person or group that the Commission stipulates.

      (4) An organisation that proposes a significant amendment to, or replacement of, a plan must prepare the significant amendment or replacement in collaboration with the Commission, including collaborating with the Commission about ways in which the organisation can implement the matters prescribed by the Commission under subsection (5).

      (5) The Commission may prescribe the requirements for the following in relation to a significant amendment to, or a replacement of, a plan:

      • (a) the content of the significant amendment or replacement (which may be the same as the matters prescribed by the Commission under section 159R):

      • (b) criteria for assessing the significant amendment or replacement (which may be the same as those prescribed by the Commission under section 159Y).

      (6) In applying the requirements in subsection (5) in order to determine whether or not to approve a significant amendment to, or replacement of, a plan, the Commission must take into account—

      • (a) the extent of the significant amendment or replacement; and

      • (b) the impact of the significant amendment or replacement on the needs of the stakeholders and any other persons consulted by the organisation under subsection (3).

      (7) The Commission may, at any time, require an organisation to review a plan with a view to amending or replacing it.

      (8) Nothing in this section prohibits an organisation from making an amendment to a plan that is not a significant amendment.

    159YL Effect of significant amendment or replacement of plan under section 159YK
    • (1) If the Commission approves a significant amendment to a plan, the significant amendment—

      • (a) forms part of the plan it amends; and

      • (b) takes effect on the date specified by the Commission.

      (2) If the Commission approves a replacement plan under section 159YK, the replacement plan—

      • (a) takes effect on the date specified by the Commission; and

      • (b) is treated as revoking the plan it replaces.

    159YM Commission may make significant amendment to plan
    • (1) The Commission may, at any time, on its own initiative, propose a significant amendment to an organisation's plan if it is satisfied that the significant amendment is reasonably necessary to ensure accountability for public funding.

      (2) If the Commission proposes a significant amendment to an organisation's plan under subsection (1), it must prepare it in collaboration with the organisation (including giving the organisation a reasonable period to consult the stakeholders it considers ought to be consulted).

      (3) After collaborating with the organisation on the proposed significant amendment, the Commission must, if it decides to proceed with the significant amendment, determine the content of the significant amendment and give the organisation a reasonable opportunity to make submissions on it.

      (4) After considering any submissions made by the organisation, the Commission may—

      • (a) approve the proposed significant amendment (with further amendment if necessary); or

      • (b) abandon the proposed significant amendment.

    159YN Effect of significant amendment made to plan under section 159YM
    • A significant amendment made to a plan under section 159YM—

      • (a) forms part of the plan it amends; and

      • (b) takes effect on the date specified by the Commission.

    Plan summary

    159YO Summary of plans
    • (1) The Commission must prescribe and give public notice of the matters that an organisation that has a plan must include in a plan summary.

      (2) An organisation that has a plan must ensure that—

      • (a) a plan summary is available for inspection by the public; and

      • (b) copies of that plan summary may be obtained either at no cost or no more than a reasonable cost; and

      • (c) the plan summary contains the matters prescribed under subsection (1).