Education (Tertiary Education and Other Matters) Amendment Bill

Education (Tertiary Education and Other Matters) Amendment Bill

Government Bill

210—1

Explanatory note

General policy statement

The Education (Tertiary Education and Other Matters) Amendment Bill amends the Education Act 1989 (the Act). The public policy objectives of the Bill are to—

  • increase funding flexibility in the tertiary education system to enable tertiary education organisations (TEOs) to respond quickly to changes in student demand and Government policy:

  • further strengthen the accountability and monitoring of TEOs to ensure they continue to deliver improved outcomes for students:

  • ensure consistent treatment of public and private tertiary education providers to encourage performance and innovation.

Increasing funding flexibility

The Bill addresses the public policy objective of increasing funding flexibility in the tertiary education system by amending the Act to allow the responsible Minister, when it is reasonably necessary, following consultation with affected TEOs, and an appropriate lead-in time, to—

  • make changes to a funding mechanism; and

  • place new conditions on funding.

These amendments will enable the Minister to shift funding across the tertiary education sector as required. Consequently, the Minister will be able to approve funding mechanisms for longer time periods. If funding mechanisms are approved for longer time periods, the Tertiary Education Commission (the Commission) is more likely to approve longer investment plans, up to the statutory limit of 3 years.

Flexible funding and longer term investment plans will—

  • reduce the compliance burden for TEOs; and

  • provide TEOs with incentives to innovate and focus more on student demand and outcomes.

Further strengthening of monitoring and compliance

The Bill addresses the public policy objective of strengthening the monitoring and compliance of TEOs by making amendments to the Act to—

  • allow the Commission to set conditions on TEO funding, which will enable the Commission to more effectively monitor TEOs and the wider tertiary system; and

  • require tertiary education institutions (TEIs) to maintain accurate records on their use of government funding and to make these records available for viewing by the Commission; and

  • allow the Commission to recover the costs of investigating a breach of a condition on funding approval where a breach of a condition on funding approval is found to have occurred and to authorise the making of regulations for determining the criteria and limitations on the application of the Commission’s cost recovery.

These amendments will improve the ability of the Commission to monitor and investigate a TEO’s compliance with conditions on government funding. This will help to ensure that funding is used appropriately.

Consistent treatment of TEOs

The Bill addresses the public policy objective of ensuring a more equitable playing field by making amendments to—

  • insert a broad principle of consistent funding into the Act; and

  • allow a wānanga to apply to use a protected term, such as university, in its title; and

  • align refund entitlements for domestic students enrolled in a short programme at a private training establishment (PTE) with those of international students.

The Act treats public and private providers differently, and some of that differential treatment is not justified by the Government’s ownership interest in TEIs.

Inserting broad principle of consistent funding treatment into Act

The Act allows different types of providers to be funded at different rates for the same provision. The amendment will insert a principle of consistent funding treatment into the Act. This will ensure that tertiary education providers that offer programmes of study that result in similar qualifications are funded at the same rate.

Allowing wānanga to apply to use protected term

The Act restricts use of 4 terms, university, college of education, polytechnic, and institute of technology. It is an offence to describe an educational establishment using one of these terms unless it is—

  • established as an institution of that type under section 162 of the Act; or

  • a registered establishment that has been granted ministerial consent under section 253C of the Act to use a protected term.

To reflect modern developments, the amendment will allow wānanga to apply for ministerial consent to use a protected term in the same way that PTEs can.

Aligning refund entitlement of domestic students enrolled in short course at PTE with those of international students

The Act allows international students to withdraw from a short course at a PTE within a period of less than seven days, and receive a refund. However, the Act is silent on the rules for refund entitlements of domestic students withdrawing from such courses at PTEs. In these situations, the PTE decides how much to refund a domestic student, which could be nothing or the full amount.

The amendment will align the refund entitlements of domestic students enrolled in a short course at a PTE with the refund entitlements of international students.

Miscellaneous amendments

Miscellaneous amendments are made to the Act to—

  • enable State and State-integrated schools to manage international student misconduct outside of school, including through the use of stand-down, suspension, exclusion, and expulsion, so they can uphold their contractual duty to ensure international students’ health, safety, and wellbeing:

  • extend the Export Education Levy reimbursement provisions to cover private and partnership schools kura hourua. This allows international students to be reimbursed for their fees and continue to study in New Zealand in the event that the private school they are studying at should fail:

  • allow TEIs to pool assets from a number of trusts to create a common fund for investment purposes. Pooling assets in to a common fund provides economies of scale and administrative efficiencies, and creates the opportunity to generate a higher return on an investment:

  • change the term private training establishment to independent tertiary establishment to allay PTE concerns that “private” implies they are for-profit, when, in practice, PTEs cover a range of types of organisational forms, from small trusts to large conglomerate not-for-profit and for-profit education providers:

  • require providers to publish compulsory student services fee (CSSF) information on their websites (such as CSSF amount per equivalent full-time student, CSSF decision-making processes, and how students can be involved in CSSF decisions) so students have access to this information:

  • modernise TEI council operations, such as allowing councils to convene meetings via teleconference or other electronic means:

  • make changes to, or clarify, a number of technical matters relating to funding and reporting, such as clarifying that funding can be withdrawn, in whole or in part, on request by a TEO.

Departmental disclosure statement

The Ministry of Education is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

The Ministry of Education produced regulatory impact statements on 21 October 2016 and 4 November 2016 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The Bill comes into force on the day after the date on which it receives the Royal assent.

Clause 3 identifies the Education Act 1989 (the principal Act) as the principal Act being amended.

Clause 4 inserts new section 1A in the principal Act. New section 1A gives effect to transitional, savings, and related provisions that are set out in new Schedule 1AA of the principal Act.

Clause 5 amends section 4, which concerns the enrolment of international students. The amendments enable the board of a school to take disciplinary action against an international student if that action is in accordance with the written contract of enrolment between the student and the school and with the code of practice published under section 238F.

Clause 6 amends the cross-heading above section 13 to reflect the amendments to the sections to which the cross-heading relates. Those sections are amended so that they apply only to domestic students.

Clause 7 amends section 13, which sets out the purpose of the provisions concerning the standing-down, suspension, exclusion, or expulsion of a student from a State school. The amendment limits the purpose of the provisions to domestic students.

Clause 8 inserts new section 13A, which provides that the provisions concerning the standing-down, suspension, exclusion, or expulsion of a student from a State school apply only in relation to domestic students.

Clause 9 amends section 159, which concerns interpretation. Four new definitions are inserted and 1 definition is repealed. The new definitions are of the terms credit, equal treatment principle, independent tertiary establishment, and record of achievement. The definition of private training establishment is repealed.

Clause 10 amends section 159E to enable the Tertiary Education Commission (the Commission) to charge an organisation a fee relating to the cost of an investigation by the Commission into a breach of a condition attached to the organisation’s funding if the organisation is found to have breached such a condition. The amendments require the Commission, in reaching a decision on whether to charge a fee and the amount of any fee, to have regard to the nature and seriousness of the breach and the effect of a fee on the operation, long-term viability, and performance of an organisation. The amendments enable the Governor-General, by Order in Council, to prescribe criteria to be applied by the Commission in assessing those matters and to specify the maximum percentage or proportion of the cost incurred by the Commission in its investigation that may be charged as a fee.

Clause 11 amends section 159M so that the restrictions that apply when the Minister is determining a design for a funding mechanism also apply when the Minister is varying a determination of a design for a funding mechanism.

Clause 12 inserts new section 159NA, which concerns the principle of equal treatment of all tertiary education providers in the design of funding mechanisms. New section 159NA provides that the funding granted in respect of an activity, approved programme, or training scheme offered by one tertiary education provider must be at the same rate as the funding for a directly comparable activity, approved programme, or training scheme that is offered by another tertiary education provider. There may be a difference in the rate of funding if that difference is the result of the application of a funding mechanism that uses a contestable funding process or is based on performance.

Clause 13 amends section 159O to require the Commission to have regard to the principle of equal treatment of all tertiary education providers in its implementation of funding mechanisms.

Clause 14 inserts new section 159OA, which empowers the Minister to vary the determination of the design of a funding mechanism after the funding mechanism has been implemented. The Minister may only vary the determination if it is reasonably necessary to do so and only by making changes in relation to the matters mentioned in section 159L(2)(a) and (b) and (3)(a) to (e). This includes a power to attach new conditions to a funding approval that has already been granted. Before deciding to vary a determination, the Minister must comply with the consultation requirement set out in the new section. If a determination is varied, any affected organisation must consider whether its plan should be amended as a result of the variation and, if it considers that a significant amendment is needed, or that its plan needs to be replaced, request the Commission’s approval for the significant amendment to, or replacement of, the plan. A variation takes effect on a date specified by the Minister but that date must be no earlier than the beginning of the next calendar year, or 3 months after the day on which the Minister varies the determination if there are less than 3 months before the next calendar year.

Clause 15 amends section 159U to make it clear that, if the Commission exempts an organisation from the requirement to submit a proposed plan, the Commission may fund the organisation under section 159ZC, which concerns funding other than via plans.

Clause 16 amends section 159YC to enable the Commission to give funding approval subject to conditions that the Commission considers necessary to enable it to effectively monitor the performance of organisations and the tertiary education sector as a whole. If the Commission intends to impose conditions of that type, it must give the affected organisation at least 21 days’ notice of the conditions before giving the funding approval subject to those conditions.

Clause 17 amends section 159YD so that institutions that receive funding under section 159YA are no longer excluded from the requirement to keep records relating to the funding and to make those records available for inspection by the Commission.

Clause 18 amends section 159YE to reflect that funding approval may be withdrawn before the expiry date specified in the plan to which the funding relates.

Clause 19 amends section 159YG to enable the Commission to withdraw some or all funding at the written request of the organisation to which the funding has been given under section 159YA. The Commission must advise the organisation of the date on which the funding will be withdrawn.

Clause 20 amends section 159YI to make provision about the effect of the Commission withdrawing funding. If funding is withdrawn, the plan or part of the plan to which the funding relates is revoked and the Commission must cease payment of funding in respect of the plan or part of the plan in relation to which funding has been withdrawn.

Clause 21 amends section 159YK to require the Commission to set criteria that must be satisfied by a proposed amendment in order for it to be a significant amendment for which approval is needed under that section. The criteria must be published in the Gazette. The amendments also require the Commission to set criteria for the replacement of a plan and to publish the criteria in the Gazette. The Commission may require an organisation to review a plan with a view to amending or replacing it if the Commission considers that a significant amendment should be made to the plan or that the criteria for replacement of the plan are satisfied.

Clause 22 amends section 159ZE so that institutions that receive funding under section 159ZC are no longer excluded from the requirement to keep records relating to the funding and to make those records available for inspection by the Commission.

Clause 23 amends section 159ZF to enable the Commission to withdraw some or all funding at the written request of the organisation to which the funding has been given under section 159ZC. If the Commission does so, it must advise the organisation of the date on which the funding will be withdrawn.

Clause 24 replaces section 167, which concerns the common seal of an institution. The new section provides that an institution may have a common seal if its council adopts one by statute. An institution’s council may, by statute, specify the type or class of documents that may be executed by affixing the common seal to them and those that may be executed only by affixing the common seal to them. It may also, by statute, specify the persons who may countersign documents to which the common seal is affixed. An institution’s common seal must be judicially noticed in all courts.

Clause 25 inserts new section 167A. The new section makes provision about the methods by which an institution may enter into contracts or other obligations. It sets out requirements relating to the types of obligation that must be entered into in writing and those that may be entered into orally.

Clause 26 amends section 176 to extend the duration of the period for which casual vacancies in institutions’ councils may be left unfilled. If the office of a member of the council of an institution becomes vacant within 6 months before the end of the member’s term of office, the Minister or the council may decide not to fill the vacancy under section 176.

Clause 27 amends section 178 to enable an institution’s council to conduct meetings by means of audio, audio and visual, or electronic communication.

Clause 28 inserts new section 178A, which enables an institution’s council to pass resolutions in writing without the need for a meeting.

Clause 29 inserts new sections 201C to 201E. These new sections are inserted to remove any doubt that an institution’s council may maintain a common fund for the investment of trust funds.

New section 201C provides that an institution’s council may establish a common fund and invest trust funds in the common fund.

New section 201D provides that funds held in a common fund must be invested by the council in accordance with the Trustee Act 1956. The council must maintain an account showing the entitlement of each trust in the common fund. If trust funds are invested in a type or class of investment in which the common fund may be invested, the council may transfer that investment to the common fund and, if it does so, it must give credit in the common fund to the trust for the fair market value at the time of transfer.

New section 201E makes provision about the way in which the council must manage the income and capital of the common fund. It also enables the council to charge a fee for the services it provides in relation to the administration and management of the common fund.

Clause 30 amends section 220 so that a statement of service performance in an institution’s annual report must be prepared in accordance with generally accepted accounting practice.

Clause 31 amends section 227A to enable the Minister to direct an institution to include information about student services fees in its annual report and to publish information about student services fees on its Internet site.

Clause 32 amends section 235 to entitle domestic students enrolled for a programme or training scheme of less than 3 months’ duration to withdraw from it during a period specified by the New Zealand Qualifications Authority (being a period of less than 7 days) and to be refunded a proportion of the payments they have made.

Clause 33 amends section 235D to enable the Minister to direct an independent tertiary establishment to include information about student services fees in its annual written report to students and to publish information about student services fees on its Internet site.

Clause 34 amends section 238I so that the funds of the export education levy may be used to reimburse students if a private school or partnership school kura hourua is unable to provide a course of study or training on which the students were enrolled and it is unable to reimburse the students. The funds of the levy may also be used to reimburse the Crown for expenses incurred, in those circumstances, in reimbursing students or in placing students in an alternative school.

Clause 35 replaces the cross-heading above section 253C in consequence of the amendments made by clause 36.

Clause 36 amends section 253C to enable wananga to apply for Ministerial consent to describe themselves using the term university, college of education, polytechnic, or institute of technology. The Minister may grant consent subject to conditions if those conditions are reasonably necessary to ensure that the public are adequately informed of the characteristics of the registered establishment or wananga, to ensure that the quality and reputation of institutions are protected, or to ensure that the interests of the tertiary education system and the nation as a whole are protected.

Clause 37 amends section 292, which concerns offences relating to the use of protected terms. These amendments are in consequence of the amendment made by clause 36.

Clause 38 amends section 292C, which concerns offences relating to issuing false qualifications and falsifying records. The amendment inserts new offences relating to making or causing false representations that a student has achieved a credit.

Clause 39 inserts new Schedule 1AA, which contains transitional, savings, and related provisions.

Clause 40 gives effect to the consequential amendments to the principal Act, which are set out in Schedule 2.

Clause 41 gives effect to the consequential amendments to other enactments, which are set out in Schedule 3.

Hon Paul Goldsmith

Education (Tertiary Education and Other Matters) Amendment Bill

Government Bill

210—1

Contents

Explanatory note
1Title
2Commencement
3Principal Act
4New section 1A inserted (Transitional, savings, and related provisions)
1ATransitional, savings, and related provisions
5Section 4 amended (Enrolment of international students)
6Cross-heading above section 13 amended
7Section 13 amended (Purpose)
8New section 13A inserted (Application of sections 14 to 18AA)
13AApplication of sections 14 to 18AA
9Section 159 amended (Interpretation)
10Section 159E amended (Charging)
11Section 159M amended (Restrictions on design of funding mechanisms)
12New section 159NA inserted (Funding mechanisms consistent with principle of equal treatment of all tertiary education providers)
159NAFunding mechanisms consistent with principle of equal treatment of all tertiary education providers
13Section 159O amended (Commission to implement funding mechanisms)
14New section 159OA inserted (Variation of determination of design of funding mechanisms)
159OAVariation of determination of design of funding mechanisms
15Section 159U amended (Exemption from requirement to submit proposed plan)
16Section 159YC amended (Conditions on receiving funding under section 159YA)
17Section 159YD amended (Accountability for funding received under section 159YA)
18Section 159YE amended (Expiry of funding approval)
19Section 159YG amended (Commission may suspend or revoke funding given under section 159YA)
20Section 159YI amended (Effect of suspending or revoking funding given under section 159YA)
21Section 159YK amended (Organisation may seek approval for significant amendment, or replacement, of plan)
22Section 159ZE amended (Accountability for funding received under section 159ZC)
23Section 159ZF amended (Commission may suspend or revoke funding given under section 159ZC)
24Section 167 replaced (Affixing of council’s common seal)
167Common seal
25New section 167A inserted (Method of contracting)
167AMethod of contracting
26Section 176 amended (Casual vacancies)
27Section 178 amended (Meetings of councils)
28New section 178A inserted (Written resolutions of councils)
178AWritten resolutions of councils
29New sections 201C to 201E inserted
201CCouncil may establish common fund
201DInvestment of funds held in common fund
201EIncome and capital of common fund
30Section 220 amended (Annual report)
31Section 227A amended (Ministerial direction to institutions relating to compulsory student services fees)
32Section 235 amended (Refund entitlements of domestic students)
33Section 235D amended (Ministerial direction to registered private training establishments relating to compulsory student services fees)
34Section 238I amended (Purpose and administration of export education levy)
35Cross-heading above section 253C replaced
36Section 253C amended (Minister may consent to registered establishments using certain terms in their names)
37Section 292 amended (Offences relating to use of certain terms)
38Section 292C amended (Offence to issue false qualifications and falsify records)
39New Schedule 1AA inserted
40Consequential amendments to principal Act
41Consequential amendments to other enactments

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Education (Tertiary Education and Other Matters) Amendment Act 2016.

2 Commencement

This Act comes into force on the day after the date on which it receives the Royal assent.

3 Principal Act

This Act amends the Education Act 1989 (the principal Act).

4 New section 1A inserted (Transitional, savings, and related provisions)

After section 1, insert:

1A Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

Part 1 Amendments to principal Act relating to international and domestic school students

5 Section 4 amended (Enrolment of international students)

(1)

In section 4(2), replace “section 4B and to subsections (3) and (4)” with “sections 4B and 13A and to subsections (2A) to (4)”.

(2)

After section 4(2), insert:

(2A)

If an international student’s conduct is in breach of the written contract of enrolment entered into between a State school and the student (or the student’s parent or legal guardian), the board of the school may take appropriate disciplinary action against the student.

(2B)

For the purposes of subsection (2A), disciplinary action, including suspension, exclusion, or the termination of the student’s enrolment, is appropriate disciplinary action if it is taken in accordance with the most recent code of practice published under section 238F and the written contract of enrolment.

6 Cross-heading above section 13 amended

In the cross-heading above section 13, after of, insert domestic.

7 Section 13 amended (Purpose)

In section 13, replace “of a student” with “of a domestic student”.

8 New section 13A inserted (Application of sections 14 to 18AA)

After section 13, insert:

13A Application of sections 14 to 18AA

Sections 14 to 18AA apply only in relation to domestic students.

Part 2 Amendments to principal Act and other enactments relating to tertiary education

9 Section 159 amended (Interpretation)

(1)

In section 159(1), insert in their appropriate alphabetical order:

credit means a unit of completed study or training towards an award

equal treatment principle means the principle set out in section 159NA(1)

independent tertiary establishment means an establishment, other than an institution, that provides post-school education or vocational training

record of achievement, in relation to a student, means a record, maintained by the Qualifications Authority or a tertiary education provider, of the credits and the results achieved by the student

(2)

In section 159(1), repeal the definition of private training establishment.

10 Section 159E amended (Charging)

In section 159E, insert as subsections (2) to (5):

(2)

The Commission may charge an organisation a fee relating to the cost of the Commission investigating whether the organisation has breached or is breaching a condition subject to which the organisation was given funding approval under section 159YA or funding under section 159ZC if the Commission finds that the organisation has breached or is breaching such a condition.

(3)

In reaching a decision on whether to charge an organisation a fee under subsection (2) and on the amount of the fee (if one is to be charged), the Commission must have regard to—

(a)

the nature and seriousness of the breach; and

(b)

the effect that a fee would have on the operation, long-term viability, and performance of the organisation.

(4)

The Governor-General may, by Order in Council, on the recommendation of the Minister made in accordance with subsection (5), make regulations—

(a)

prescribing the criteria against which the Commission must assess a breach to determine the nature and seriousness of the breach for the purposes of subsection (3); and

(b)

prescribing the criteria against which the Commission must assess a proposed fee to determine, for the purposes of subsection (3), the effect that the fee would have on the operation, long-term viability, and performance of an organisation; and

(c)

specifying the maximum percentage or proportion of the cost incurred by the Commission in its investigation that may be charged as a fee by the Commission under subsection (2).

(5)

Before making a recommendation under subsection (4), the Minister must consult all persons and organisations that the Minister considers ought to be consulted.

11 Section 159M amended (Restrictions on design of funding mechanisms)

In section 159M, after “section 159L”, insert “or in varying a determination under section 159OA,”.

12 New section 159NA inserted (Funding mechanisms consistent with principle of equal treatment of all tertiary education providers)

After section 159N, insert:

159NA Funding mechanisms consistent with principle of equal treatment of all tertiary education providers

(1)

Every funding mechanism must be consistent with the principle that an activity or approved programme or training scheme is to be funded at the same rate as a directly comparable activity or directly comparable approved programme or training scheme, regardless of the identities of the tertiary education providers concerned.

(2)

Despite subsection (1), the Commission may provide funding at different rates if there is a difference in the extent to which each tertiary education provider has achieved its proposed outcomes in relation to the activity or approved programme or training scheme, as measured by the performance indicators—

(a)

specified in the plan in relation to which funding approval is given; or

(b)

agreed with the Commission if funding is given under section 159ZC.

(3)

Despite subsection (1), the Commission may provide funding at different rates, or provide funding on a different basis, if that is in accordance with a funding mechanism—

(a)

that uses a contestable funding process to reach decisions on the allocation of funding between tertiary education providers in respect of directly comparable activities or directly comparable approved programmes or training schemes; or

(b)

that is designed to allocate funding between tertiary education providers based on performance.

(4)

For the purposes of this section and section 159O,—

(a)

activities are directly comparable if the proposed outcomes in relation to the activities are the same or substantially the same; and

(b)

approved programmes or training schemes are directly comparable if the qualifications resulting from their successful completion are the same or substantially the same.

(5)

In this section and section 159O,—

activity includes anything, except for an approved programme or training scheme, for which funding may be provided under a funding mechanism

proposed outcomes means the outcomes proposed in the plan in relation to which funding approval is given or, if funding is given under section 159ZC, the outcomes agreed with the Commission.

13 Section 159O amended (Commission to implement funding mechanisms)

In section 159O, insert as subsection (2):

(2)

The Commission, in implementing the funding mechanisms, must have regard to the equal treatment principle.

14 New section 159OA inserted (Variation of determination of design of funding mechanisms)

After section 159O, insert:

159OA Variation of determination of design of funding mechanisms

(1)

After the Commission has implemented, or started to implement, the funding mechanisms under section 159O, the Minister may vary the determination of the design of the funding mechanisms.

(2)

The Minister may only vary a determination—

(a)

if it is reasonably necessary to do so; and

(b)

by making changes in relation to the matters mentioned in section 159L(2)(a) and (b) and (3)(a) to (e).

(3)

Before deciding to vary a determination, the Minister must consult—

(a)

all organisations that would be affected by a variation that the Minister proposes; and

(b)

all other persons and organisations that the Minister considers ought to be consulted.

(4)

If the Minister varies a determination, an organisation affected by the variation must—

(a)

consider whether any amendments are needed to its plan as a result of the variation; and

(b)

if it considers that a significant amendment is needed to its plan, or that its plan needs to be replaced, ask the Commission to approve the significant amendment to, or the replacement of, its plan under section 159YK.

(5)

If the Minister varies a determination and, as a result of the variation, the Commission must attach new conditions to funding under a funding mechanism,—

(a)

the Commission must attach the new conditions to any funding approval that it has given under that funding mechanism; and

(b)

the Commission must notify any affected organisation of the attachment of the new conditions to the organisation’s funding approval; and

(c)

the new conditions take effect on the date on which the affected organisation is so notified.

(6)

If the Minister varies a determination, the variation takes effect on a date specified by the Minister that must be no earlier than whichever is the later of the following:

(a)

the day that is 3 months after the date on which the Minister varies the determination:

(b)

the beginning of the calendar year after the calendar year during which the Minister varies the determination.

15 Section 159U amended (Exemption from requirement to submit proposed plan)

After section 159U(3), insert:

(4)

If the Commission exempts an organisation under subsection (1), the Commission may fund that organisation under section 159ZC as if it were an organisation for which a funding mechanism provides for funding other than via plans.

16 Section 159YC amended (Conditions on receiving funding under section 159YA)

(1)

In section 159YC(2)(b), after “will be achieved”, insert “; or”.

(2)

After section 159YC(2)(b), insert:

(c)

conditions that the Commission considers reasonably necessary to enable the Commission to effectively monitor the performance of organisations and the tertiary education sector generally.

(3)

After section 159YC(2), insert:

(2A)

If the Commission intends to give funding approval subject to a condition of the type described in subsection (2)(c), the Commission must give the affected organisation at least 21 days’ notice of the proposed condition before giving the funding approval.

17 Section 159YD amended (Accountability for funding received under section 159YA)

In section 159YD(1), delete “(other than an institution)”.

18 Section 159YE amended (Expiry of funding approval)

In section 159YE(2), after “revoked”, insert “or withdrawn”.

19 Section 159YG amended (Commission may suspend or revoke funding given under section 159YA)

(1)

In the heading to section 159YG, replace or revoke with , revoke, or withdraw.

(2)

After section 159YG(5), insert:

(6)

The Commission may withdraw some or all funding given under section 159YA at the written request of the organisation to which the funding has been given.

(7)

If the Commission withdraws some or all funding under subsection (6), it must advise the organisation of the date on which the funding will be withdrawn.

20 Section 159YI amended (Effect of suspending or revoking funding given under section 159YA)

(1)

In the heading to section 159YI, replace or revoking with , revoking, or withdrawing.

(2)

In section 159YI(2), after “revoking”, insert “or withdrawing”.

(3)

In section 159YI(2)(b), after “revoked”, insert “or withdrawn”.

21 Section 159YK amended (Organisation may seek approval for significant amendment, or replacement, of plan)

(1)

In section 159YK(1), after “plan that”, insert “satisfies the criteria set by the Commission under subsection (1A) and that”.

(2)

After section 159YK(1), insert:

(1A)

The Commission must—

(a)

set the criteria that must be satisfied by an amendment for the purposes of subsection (1); and

(b)

publish those criteria in the Gazette.

(3)

In section 159YK(2), delete “, or the replacement of,”.

(4)

After section 159YK(2), insert:

(2A)

An organisation may, at any time, ask the Commission to approve the replacement of a plan if the organisation considers that the criteria for replacement of a plan are satisfied.

(2B)

The Commission must—

(a)

set the criteria for replacement of a plan; and

(b)

publish those criteria in the Gazette.

(5)

In section 159YK(7), after “it”, insert “if the Commission considers that a significant amendment should be made to the plan or that the criteria for replacement of a plan are satisfied”.

22 Section 159ZE amended (Accountability for funding received under section 159ZC)

In section 159ZE(1), delete “(other than an institution)”.

23 Section 159ZF amended (Commission may suspend or revoke funding given under section 159ZC)

(1)

In the heading to section 159ZF, replace or revoke with , revoke, or withdraw.

(2)

After section 159ZF(4), insert:

(5)

The Commission may, at the written request of an organisation, withdraw some or all payment, or any or all further payments, of any funding given to the organisation under section 159ZC.

(6)

If the Commission withdraws funding under subsection (5), it must advise the organisation of the date on which the funding will be withdrawn.

24 Section 167 replaced (Affixing of council’s common seal)

Replace section 167 with:

167 Common seal

(1)

An institution may have a common seal if its council adopts one by statute.

(2)

A council may, by statute,—

(a)

specify the type or class of documents that may be executed by affixing the common seal to them; and

(b)

specify the type or class of documents that may be executed only by affixing the common seal to them; and

(c)

specify any member or members of the council, and any member or members of the staff of the institution, who may countersign documents (or a specified type or class of documents) to which the common seal is affixed.

(3)

The common seal of an institution must be judicially noticed in all courts and for all purposes.

25 New section 167A inserted (Method of contracting)

After section 167, insert:

167A Method of contracting

(1)

An institution may enter into a contract or other enforceable obligation as provided in this section.

(2)

An obligation that, if entered into by an individual, is required to be entered into by deed may be entered into by the council in writing, signed under the name of the institution by 2 or more members of the council.

(3)

An obligation that, if entered into by an individual, is required to be entered into in writing may be entered into by the council in writing, signed by 1 person or more than 1 person acting under the institution’s express or implied authority.

(4)

An obligation that, if entered into by an individual, is not required to be entered into in writing may be entered into by the council in writing or orally by a person acting under the institution’s express or implied authority.

(5)

This section applies to a contract or other enforceable obligation—

(a)

whether or not that obligation was entered into in New Zealand; and

(b)

whether or not the law governing that obligation is the law of New Zealand.

26 Section 176 amended (Casual vacancies)

In section 176(2), replace “3” with “6”.

27 Section 178 amended (Meetings of councils)

After section 178(4), insert:

(4A)

Meetings may be held by means of audio, audio and visual, or electronic communication if—

(a)

each member who wishes to participate in the meeting has access to the technology needed to participate in the meeting; and

(b)

a quorum of members can simultaneously communicate with each other throughout the meeting.

(4B)

If a meeting is held in accordance with subsection (4A), each member who participates in the meeting by means of audio, audio and visual, or electronic communication is present at the meeting for the purposes of subsections (5) to (9).

28 New section 178A inserted (Written resolutions of councils)

After section 178, insert:

178A Written resolutions of councils

(1)

A resolution signed or assented to in writing (whether sent by post, delivery, or electronic communication) by all members of the council who are entitled to vote on the matter is as valid and effectual as if it had been passed at a meeting of the council.

(2)

The resolution may consist of several documents containing the same resolution, each signed or assented to in writing by 1 or more members.

29 New sections 201C to 201E inserted

After section 201B, insert:

201C Council may establish common fund

(1)

This section and sections 201D and 201E are for the avoidance of doubt.

(2)

The council of an institution may—

(a)

establish a common fund; and

(b)

subject to subsections (3) and (4), invest any trust funds in its possession, in whole or in part, in the common fund (whether the funds came into the council’s possession before or after this section came into force).

(3)

If the council has in its possession trust funds of a trust of which the council is a co-trustee, the council may only invest those trust funds in the common fund with the consent of all the other co-trustees.

(4)

The council may not invest trust funds in the common fund if this would be inconsistent with the terms of any trust instrument governing the investment of the trust funds.

201D Investment of funds held in common fund

(1)

The council may invest funds that are held in a common fund only in accordance with the provisions of the Trustee Act 1956 as to the investment of trust funds.

(2)

Investments of funds held in a common fund must not be made on account of, and do not belong to, any particular trust, but the council must, at all times, maintain an account showing the entitlement of each trust in the common fund.

(3)

If trust funds are invested in a type or class of investment in which the common fund may be invested, the council may transfer that investment to the common fund and, if it does so,—

(a)

the investment ceases, at the time of transfer, to belong to the trust that held the investment; and

(b)

the council must give credit in the common fund to the trust for the fair market value of the investment at the time of transfer.

(4)

Any profit or loss upon the realisation of any investment in a common fund is to be credited or debited to the common fund.

201E Income and capital of common fund

(1)

Each financial year, the council must—

(a)

pay or allocate the income from the common fund to the trusts entitled to the amounts invested in the common fund—

(i)

in proportion to the value of their respective interests in the common fund; and

(ii)

at a uniform rate determined by the council; and

(b)

hold the capital of the common fund on behalf of the trusts entitled to the amounts invested in the common fund in proportion to the value of their respective interests in the common fund; and

(c)

hold any income that is not paid or allocated to trusts, and any capital that is not held on behalf of trusts, in a reserve fund separate from other trust funds.

(2)

The council may apply funds held in the reserve fund, including any income derived from investments of the reserve fund, for any of the following purposes:

(a)

augmenting the capital of the common fund:

(b)

reinstating any losses of capital in the common fund:

(c)

increasing or supplementing the income paid or allocated to trusts that have interests in the common fund.

(3)

The council may withdraw any amount from the common fund to the credit of a trust that has an interest in the common fund—

(a)

for the purpose of investing the amount on a separate account for the trust; or

(b)

for any other purpose relating to the exercise and discharge of its duties, powers, authorities, and functions.

(4)

If any amount is withdrawn from the common fund to the credit of a trust that has an interest in the common fund,—

(a)

that amount may, at the discretion of the council, be paid or provided in cash or rateably in investments, or partly in cash and partly rateably in investments; and

(b)

as from the date of its withdrawal, the trust has no claim on the fund in respect of the amount, whether for interest or otherwise.

(5)

The council—

(a)

may charge a reasonable fee, payable out of the income received by the common fund, for services provided by the council in relation to the administration or management of the common fund; and

(b)

must publish the amount of any such fee, and the method by which the fee is calculated or applied (and any change to that method), in the annual report.

30 Section 220 amended (Annual report)

After section 220(2B), insert:

(2C)

A statement of service performance under subsection (2A)(f) must be prepared in accordance with generally accepted accounting practice, within the meaning of section 8 of the Financial Reporting Act 2013.

31 Section 227A amended (Ministerial direction to institutions relating to compulsory student services fees)

Replace section 227A(1)(d) with:

(d)

requires the institution or institutions to include the following information in the institution’s annual report (under section 220):

(i)

a description of the services funded out of the student services fee:

(ii)

a statement of the fee income and expenditure for each type of student service:

(iii)

the student services fee expressed as an amount payable per equivalent full-time student:

(iv)

a statement describing how the institution has complied with a requirement to hold fees in a manner specified in a direction given under paragraph (b):

(e)

requires the institution or institutions to publish information about the following matters on an Internet site maintained by the institution:

(i)

the student services fee expressed as an amount payable per equivalent full-time student:

(ii)

the arrangements that the institution has established for decisions to be made jointly or in consultation with students or their representatives in accordance with paragraph (c):

(iii)

how students can participate in the process of joint decision making or consultation mentioned in paragraph (c).

32 Section 235 amended (Refund entitlements of domestic students)

After section 235(1), insert:

(1A)

An independent tertiary establishment must—

(a)

allow every domestic student enrolled for a programme or training scheme that is of less than 3 months’ duration to withdraw from it within a period (being less than 7 days) specified by the Authority; and

(b)

refund to every domestic student who so withdraws a minimum amount or proportion, specified by the Authority, of any payments made by the student to the establishment in respect of the programme or training scheme.

33 Section 235D amended (Ministerial direction to registered private training establishments relating to compulsory student services fees)

Replace section 235D(1)(d) with:

(d)

requires the establishment or establishments to provide each year to students a written report including the following information:

(i)

a description of the services funded out of the student services fee:

(ii)

a statement of the fee income and expenditure for each type of student service:

(iii)

the student services fee expressed as an amount payable per equivalent full-time student:

(iv)

a statement describing how the establishment has complied with a requirement to hold fees in a manner specified in a direction given under paragraph (b):

(e)

requires the establishment or establishments to publish information about the following matters on an Internet site maintained by the establishment:

(i)

the student services fee expressed as an amount payable per equivalent full-time student:

(ii)

the arrangements that the establishment has established for decisions to be made jointly or in consultation with students or their representatives in accordance with paragraph (c):

(iii)

how students can participate in the process of joint decision making or consultation mentioned in paragraph (c).

34 Section 238I amended (Purpose and administration of export education levy)

(1)

In section 238I(1A)(a), after “establishment”, insert “, private school, or partnership school kura hourua”.

(2)

In section 238I(1A)(b), after “18”, insert “, the private school held a current registration under section 35A, or the partnership school kura hourua was a school in respect of which a partnership school contract was in force”.

(3)

In section 238I(1A)(c), after “establishment”, insert “, private school, or partnership school kura hourua”.

(4)

In section 238I(1B)(a), (b), and (c)(ii), after “establishment”, insert “, private school, or partnership school kura hourua” in each place.

(5)

After section 238I(1B), insert:

(1C)

In subsections (1A) and (1B), partnership school kura hourua and partnership school contract have the same meanings as in section 2(1).

35 Cross-heading above section 253C replaced

Replace the cross-heading above section 253C with:

Use of certain terms in name or description of registered establishment or wananga

36 Section 253C amended (Minister may consent to registered establishments using certain terms in their names)

(1)

Replace the heading to section 253C with Minister may consent to use of certain terms in name or description of registered establishment or wananga.

(2)

Repeal section 253C(1).

(3)

Replace section 253C(2) with:

(2)

A registered establishment may apply to the Minister for consent to describe itself using the term university, college of education, polytechnic, or institute of technology.

(2A)

A wananga may apply to the Minister for consent to describe itself using the term university, college of education, polytechnic, or institute of technology.

(4)

In section 253C(3) and (4), after “(2)”, insert “or (2A).

(5)

In section 253C(3)(b), after “Authority”, insert “and from the Commission”.

(6)

Replace section 253C(5) with:

(5)

The Minister may grant consent under subsection (2) or (2A) subject to conditions that the Minister considers reasonably necessary to—

(a)

ensure that students, employers, and members of the public are adequately informed of the legal status or characteristics of the registered establishment or wananga to which the consent is granted; and

(b)

ensure adequate protection of the quality and reputation of the institutions that may use the term without applying to do so; and

(c)

protect the interests of the tertiary education system and the nation as a whole.

(5A)

The Minister may, at any time, carry out a review of a registered establishment or wananga to assess whether it is continuing to comply with any conditions subject to which it was granted consent under subsection (2) or (2A).

(7)

In section 253C(6), after “If”, insert “, having regard to a review carried out under subsection (5A),”.

(8)

In section 253C(6), after “establishment”, insert “or wananga”.

(9)

In section 253C(6), replace “requirements for consent to use the term for which consent has been given” with “conditions subject to which it was granted consent under subsection (2) or (2A).

37 Section 292 amended (Offences relating to use of certain terms)

In section 292(1)(a)(ii), (b)(ii), (c)(ii), and (d)(ii), after “registered establishment”, insert “or wananga”.

38 Section 292C amended (Offence to issue false qualifications and falsify records)

After section 292C(2), insert:

(2A)

A person commits an offence—

(a)

who knowingly or recklessly makes a false representation on a student’s record of achievement that the student has achieved a credit:

(b)

who without reasonable excuse causes a false representation to be made on a student’s record of achievement that the student has achieved a credit.

39 New Schedule 1AA inserted

Insert the Schedule 1AA set out in Schedule 1 of this Act as the first schedule to appear after the last section of the principal Act.

40 Consequential amendments to principal Act

Amend the principal Act as set out in Schedule 2.

41 Consequential amendments to other enactments

Amend the enactments specified in Schedule 3 as set out in that schedule.

Schedule 1 New Schedule 1AA inserted

s 39

Schedule 1AA Transitional, savings, and related provisions

s 1A

Part 1 Provisions relating to Education (Tertiary Education and Other Matters) Amendment Act 2016

1 Interpretation

In this Part, commencement date means the date on which the Education (Tertiary Education and Other Matters) Amendment Act 2016 comes into force.

2 Meaning of private training establishment (section 159)

Every reference in any enactment (other than this Act), or in any document, to a private training establishment must be read, unless the context otherwise requires, as a reference to an independent tertiary establishment.

3 Variation of determination of design of funding mechanisms (section 159OA)

A variation of a determination under section 159OA may affect an organisation whose plan has been given funding approval, and may involve the attachment of new conditions to the funding approval, whether the funding approval was given before, on, or after the commencement date.

4 Accountability for funding (sections 159YD and 159ZE)

Sections 159YD and 159ZE as amended by the Education (Tertiary Education and Other Matters) Amendment Act 2016 apply in relation to funding received by an organisation after the commencement date.

5 Casual vacancies (section 176)

Section 176 as amended by the Education (Tertiary Education and Other Matters) Amendment Act 2016 applies in relation to any vacancy that arises after the commencement date.

6 Annual report (section 220)

The first statement of service performance to which section 220(2C) applies is the statement of service performance for the first financial year that begins after the commencement date.

7 Ministerial direction relating to compulsory student services fees (sections 227A and 235D)

Sections 227A and 235D as amended by the Education (Tertiary Education and Other Matters) Amendment Act 2016 apply in the first academic year that begins after the commencement date and all subsequent academic years.

8 Refund entitlements of domestic students (section 235)

Section 235(1A) applies in relation to domestic students who enrol for a programme or training scheme on or after the date that is 6 months after the commencement date.

Schedule 2 Consequential amendments to principal Act

s 40

In section 159(1), definition of registered establishment, replace “a private training establishment” with “an independent tertiary establishment”.

In the headings to sections 229D, 232A, 232D, 234B, 235D, 235F, 236A, and 292F, replace private training establishments with independent tertiary establishments.

In sections 229D, 235B(2)(a), 235D(1), 235F(2), 280(1)(b) and (d), 282(c), and 303(3), replace “private training establishments” with “independent tertiary establishments” in each place.

In sections 229D(a), 232D(1), 232E(1), 233(1), (4), and (5), 233A(1), 233B(1), 233D(2), 234(2), 234D(1), 234E(1), 235(1), 235F(7), (8), and (9), 236A(2), 238I(1A)(a), 253(1)(a)(i) and (e), 254(2)(a)(vii), 255A(1), and 292B(3), replace “a private training establishment” with “an independent tertiary establishment”.

In sections 229D(b), 233A(1)(a) and (b), 233C, 233D(1), 233E(2) and (3), 234(1), (2A), (3), (5), and (6), 234A(1) and (2), 234B, 234E(5)(b), 235(2) and (3)(a) and (b), 235A(3)(a) and (b) and (4), 235D(1), (4), and (6), 235F(3)(a) and (b), (4), (5)(b), and (6)(g), 236A(1), and 238I(1A)(b) and (c) and (1B)(a), (b), and (c)(ii), replace “private training establishment” with “independent tertiary establishment” in each place.

In the Part 18 heading, replace Private training establishments with Independent tertiary establishments.

In section 232, definition of governing member, replace “a private training establishment” with “an independent tertiary establishment”.

In section 232, definition of senior manager, replace “a private training establishment” with “an independent tertiary establishment”.

In sections 232A(1) and (2), 232C, 232D(1), 235A(1), 235E(1), 236(1) and (2), 292D(1) and (2), 292F(2), and 292G(1) and (3), replace “A private training establishment” with “An independent tertiary establishment”.

In the headings to sections 232E and 233A, replace private training establishment with independent tertiary establishment.

In section 234C(1), definition of independent trustee, replace “a private training establishment” with “an independent tertiary establishment”.

In section 234C(1), definition of refund period, paragraph (a), replace “private training establishment” with “independent tertiary establishment”.

In the heading to section 235E, replace Private training establishment with Independent tertiary establishment.

In section 235F(8), replace “the private training establishment” with “the independent tertiary establishment”.

In section 238D, definition of provider, paragraph (c), replace “private training establishment” with “independent tertiary establishment”.

In section 253(1)(e), replace “or private training establishment” with “or independent tertiary establishment”.

In section 255A(1)(a), replace “the private training establishment” with “the independent tertiary establishment”.

Schedule 3 Consequential amendments to other enactments

s 41

Part 1Amendments to Acts

Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22)

In section 24, new section 133AE(1)(d)(iii), replace “a private training establishment” with “an independent tertiary establishment”.

Copyright Act 1994 (1994 No 143)

In section 2(1), definition of educational establishment, paragraph (e)(ii), replace “private training establishment” with “independent tertiary establishment”.

Goods and Services Tax Act 1995 (1995 No 141)

In section 78B(2A)(aa)(ia) and (b)(i), replace “a private training establishment” with “an independent tertiary establishment”.

In section 78B(2B)(a), replace “a private training establishment” with “an independent tertiary establishment”.

Industry Training and Apprenticeships Act 1992 (1992 No 55)

In the heading to section 11E, replace private training establishments with independent tertiary establishments.

In section 11E(1), replace “private training establishment” with “independent tertiary establishment”.

Repeal section 11E(2).

In section 11E(3), replace registered private training establishment with registered independent tertiary establishment.

In section 11E(3), replace “a private training establishment” with “an independent tertiary establishment”.

Privacy Act 1993 (1993 No 28)

In section 97, definition of specified agency, paragraph (j), replace “private training establishment” with “independent tertiary establishment”.

Public Bodies Contracts Act 1959 (1959 No 98)

In Schedule 1, Part 1, repeal the item relating to tertiary institutions.

Residential Tenancies Act 1986 (1986 No 120)

In section 5B(6), replace “private training establishments” with “independent tertiary establishments”.

Taranaki Scholarships Trust Board Act 1957 (1957 No 108)

In section 12(6)(b), replace “private training establishment” with “independent tertiary establishment”.

Part 2Amendments to legislative instruments

Education (Refund Requirements for International Students) Notice 2012 (SR 2012/312)

In clause 3(2), replace private training establishment with independent tertiary establishment.

In clause 4(2), replace “private training establishment” with “independent tertiary establishment”.

In clause 5, replace “private training establishment” with “independent tertiary establishment”.

In clause 6, replace “a private training establishment” with “an independent tertiary establishment”.

In clause 7(1), replace “private training establishment” with “independent tertiary establishment”.

In clause 7(2), replace “a private training establishment” with “an independent tertiary establishment”.

International Student Contract Dispute Resolution Scheme Rules 2016 (LI 2016/42)

In rule 28(2)(a), replace “private training establishments” with “independent tertiary establishments”.

National Civil Defence Emergency Management Plan Order 2015 (LI 2015/140)

In the Schedule, clause 102(2)(a), replace “private training establishments” with “independent tertiary establishments”.

Social Security (Youth Support—Authorised Agencies) Order 2012 (SR 2012/209)

In the Schedule, replace “private training establishment” with “independent tertiary establishment”.

Student Allowances Regulations 1998 (SR 1998/277)

In regulation 2(1), definition of tertiary provider, replace “a private training establishment” with “an independent tertiary establishment”.