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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to establish TAFE SA; and for other purposes.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Interpretation
Part 2—TAFE SA
4Establishment of
corporation
5Application of Public Corporations
Act 1993
6Functions
7Establishment of
board
8Conditions
of office of director
9Board proceedings
10Conflict of interest under Public Corporations
Act
11Common seal
and execution of documents
12Chief
executive
13Delegation by chief executive
14Other staff
15Use of services or staff of
administrative unit
Part 3—Rules and
by-laws
16Power to make rules
17Power to make by-laws
18Evidentiary
provision
19Fines
and expiation fees
20Availability of rules and
by-laws
Part 4—Miscellaneous
21Protection of proprietary
interests of TAFE SA
22Regulations
Schedule 1—Transitional
provisions
1Transfer of staff
2Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the TAFE SA Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, unless the contrary intention appears—
chief executive means a person holding or acting in the
office of chief executive of TAFE SA;
director means a member of the board of
TAFE SA;
TAFE SA grounds means all land owned or occupied by
TAFE SA or of which TAFE SA has the care, control and
management;
technical and further education means—
(a) education and training recognised for the purposes of a law of the
Commonwealth or a law of the State as—
(i) vocational education and training; or
(ii) higher education; or
(b) other post-compulsory education and training in any academic,
vocational or practical discipline.
4—Establishment
of corporation
(1) TAFE SA is established.
(2) TAFE SA—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) is capable of suing and being sued in its corporate name;
and
(d) has all the powers of a natural person that are capable of being
exercised by a body corporate; and
(e) has the functions and powers assigned or conferred by or under this or
any other Act.
5—Application
of Public Corporations
Act 1993
TAFE SA is a statutory corporation to which the provisions of the
Public
Corporations Act 1993 (other than section 35) apply.
Note—
Consequently, TAFE SA is subject to control and direction by the
Minister as provided for in the Public
Corporations Act 1993.
(1) The functions of TAFE SA are—
(a) to provide technical and further education; and
(b) to undertake or facilitate research that relates to technical and
further education; and
(c) to provide consultancy or other services, for a fee or otherwise, in
any area in which staff of TAFE SA have particular expertise developed
(whether wholly or partly) in the course of, or incidentally to, the provision
of technical and further education; and
(d) to undertake or provide for the development or use, for commercial,
community or other purposes, of any intellectual property, product or process
created or developed (whether wholly or partly) in the course of, or
incidentally to, the provision of technical and further education; and
(e) to perform any other function assigned to it by the
Minister.
(2) In providing technical and further education, TAFE SA may
(without limitation)—
(a) provide services at campuses and premises established for the purpose,
at industry and commercial premises and elsewhere, whether within or outside the
State; and
(b) provide Internet based services; and
(c) provide services to domestic and international students; and
(d) in order to provide students with practical training and
experience—
(i) establish or carry on an enterprise or activity, for commercial,
community or other purposes, in which students are to participate; and
(ii) provide for the participation of students, on such conditions as
TAFE SA thinks fit, in a commercial, community or other enterprise or
activity carried on by some other person or body; and
(e) provide scholarships or establish other schemes to assist students;
and
(f) charge fees for goods and services.
(3) TAFE SA may, to the extent of its rights in respect of land,
buildings, equipment, facilities or services used for technical and further
education, authorise their use for commercial, community or other purposes for a
fee or otherwise.
(1) A board of directors is established as the governing body of
TAFE SA.
(2) The board is to
consist of not less than 6 and not more than 11 members appointed
by the Governor.
(3) At least 2 members must be women and at least 2 must be
men.
(4) The board's membership must include persons who together have, in the
Governor's opinion, the expertise, abilities and experience required for the
effective performance of TAFE SA's functions and the proper discharge of
its business and management obligations (including in the areas of education and
training, business, industry and community affairs and strategic
planning).
(5) The Governor will appoint 1 of the members to chair meetings of
the board.
(6) On the office of a director becoming vacant, a person may be appointed
under this section to the vacant office.
8—Conditions
of office of director
(1) A director will be appointed for a term, not exceeding 3 years,
specified in the instrument of appointment and will, at the expiration of a term
of appointment, be eligible for reappointment.
(2) A director is entitled to such remuneration, allowances and expenses
as may be determined by the Governor.
(3) The Governor
may remove a director from office on the recommendation of the
Minister.
(4) The Minister may recommend the removal of a director on any ground
that the Minister considers sufficient.
(5) The office of a director becomes vacant if the
director—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is disqualified from managing corporations under Chapter 2D
Part 2D.6 of the Corporations Act 2001 of the Commonwealth;
or
(e) becomes bankrupt or applies to take the benefit of a law for the
relief of insolvent debtors; or
(f) is convicted of an indictable offence or sentenced to imprisonment for
an offence; or
(g) is removed from office under
subsection (3).
(1) The director appointed to chair meetings of the board will preside at
each meeting of the board at which he or she is present.
(2) If the director appointed to chair meetings of the board is absent
from a meeting of the board, a director chosen by the directors present at the
meeting will preside at the meeting.
(3) A quorum of the
board consists of one-half of the members of the board (ignoring any fraction
resulting from the division) plus 1.
(4) Subject to
subsection (3),
the board may act notwithstanding vacancies in its membership or a defect in
appointment of a member.
(5) A decision carried by a majority of the votes cast by directors at a
meeting is a decision of the board.
(6) Each director present at a meeting of the board has 1 vote on any
question arising for decision and, if the votes are equal, the director
presiding at the meeting may exercise a casting vote.
(7) A conference by telephone or other electronic means between directors
will, for the purposes of this section, be taken to be a meeting of the board at
which the participating directors are present if—
(a) notice of the conference is given to all directors in the manner
determined by the board for that purpose; and
(b) each participating director is capable of communicating with every
other participating director during the conference.
(8) A proposed resolution of the board becomes a valid decision of the
board despite the fact that it is not voted on at a meeting of the board
if—
(a) notice of the proposed resolution is given to all directors in
accordance with procedures determined by the board; and
(b) a majority of the directors express their concurrence in the proposed
resolution by letter, email, fax or other written communication setting out the
terms of the resolution.
(9) The board must cause accurate minutes to be kept of its
proceedings.
(10) Subject to this Act, the board may determine its own
procedures.
10—Conflict
of interest under Public Corporations Act
A director will not be taken to have a direct or indirect interest in a
matter for the purposes of the Public
Corporations Act 1993 by reason only of the fact that the director
has an interest in a matter that is shared in common with those engaged in or
associated with the technical and further education sector generally, or a
substantial section of those engaged in or associated with the technical and
further education sector.
11—Common
seal and execution of documents
(1) The common seal of TAFE SA must not be affixed to a document
except pursuant to a decision of the board, and the affixing of the seal must be
attested by the signatures of 2 directors.
(2) TAFE SA
may, by instrument under its common seal, authorise a director, an employee
(whether nominated by name or by duties or position) or any other person to
execute documents on behalf of TAFE SA subject to conditions and
limitations (if any) specified in the instrument of authority.
(3) Without limiting
subsection (2),
an authority may be given so as to authorise 2 or more persons to execute
documents jointly on behalf of TAFE SA.
(4) A document is duly executed by TAFE SA if—
(a) the common seal of TAFE SA is affixed to the document in
accordance with this section; or
(b) the document is signed on behalf of TAFE SA by a person or
persons in accordance with an authority conferred under this section.
(1) There is to be a chief executive of TAFE SA.
(2) The chief executive is to be appointed by the board with the approval
of the Minister on terms and conditions approved by the Minister.
(3) The chief executive is responsible to the board of TAFE SA
for—
(a) giving effect to the board's policies and decisions; and
(b) the attainment of performance objectives set from time to time by the
board; and
(c) the effective management of TAFE SA and the general conduct of
its employees.
(4) The chief executive may not be a director but may, on the invitation
of the board, attend a meeting of the board in an advisory capacity.
(5) The board must not remove a person as chief executive except with the
approval of the Minister.
13—Delegation
by chief executive
(1) The chief executive may delegate to a person (including a person for
the time being performing particular duties or holding or acting in a specified
position) a function or power under this or any other Act.
(2) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in a matter;
and
(d) is revocable at will.
(1) The other staff of
TAFE SA comprise persons employed by the chief executive on terms and
conditions determined, subject to this Act, by the chief executive.
(2) Terms and conditions determined by the chief executive under
subsection (1) must
be approved by the Commissioner for Public Sector Employment.
(3) The Minister may not give a direction to TAFE SA relating to the
employment, transfer, remuneration, discipline or termination of employment of a
particular employee of the chief executive.
(4) The chief executive may enter into arrangements contemplated by
section 5 of the Superannuation
Act 1988 with respect to an employee of the chief executive who
was, immediately before the commencement of this section, a contributor under
that Act.
(5) A person who is transferred to the employment of the chief executive
under this Act and who was immediately before the commencement of this clause, a
contributor under the Superannuation
Act 1988 may, subject to that Act, remain a contributor.
(6) This Act does not exclude the operation of the Fair
Work Act 1994 in relation to persons employed under this
section.
15—Use
of services or staff of administrative unit
TAFE SA may, under an arrangement established by the Minister
administering an administrative unit of the Public Service, make use of the
services or staff of that administrative unit.
(1) TAFE SA may make rules for all or any of the following
purposes:
(a) to provide for the formation of an association of students, or
students and staff, of TAFE SA for the purposes of promoting the interests
of students or of students and staff;
(b) to provide for matters relating to residential accommodation for
students;
(c) to provide a scheme for disciplinary action against students,
including review of a decision to take disciplinary action;
(d) to provide for any other matter affecting the administration of
TAFE SA.
(2) Rules made by TAFE SA—
(a) must be submitted to the Governor for confirmation; and
(b) take effect on the day of confirmation or on a later day fixed in the
rules.
(3) The Subordinate
Legislation Act 1978 does not apply to or in relation to a rule
made under this section.
(4) A monetary penalty imposed for contravention of a rule is a debt due
to TAFE SA and is recoverable by TAFE SA by action in a court of
competent jurisdiction.
(1) TAFE SA may, with the approval of the Minister, make by-laws for
all or any of the following purposes:
(a) to prohibit persons from trespassing on TAFE SA
grounds;
(b) to prevent damage to TAFE SA grounds or property of TAFE SA
and to provide for the recovery of compensation for damage done to TAFE SA
grounds or property of TAFE SA;
(c) to regulate the driving, riding and parking of vehicles on
TAFE SA grounds, including through prohibitions and restrictions relating
to speed, mass, traffic flow and other matters, requiring compliance with
directions and providing for permits;
(d) to prescribe fees for the parking of motor vehicles on TAFE SA
grounds and provide for the recovery of those fees;
(e) to regulate the conduct of persons on or entering TAFE SA
grounds, including by—
(i) prohibiting disorderly or offensive behaviour; and
(ii) regulating, restricting or prohibiting the bringing of animals onto
the grounds and the handling of animals while within the grounds; and
(iii) regulating, restricting or prohibiting the bringing of alcoholic
liquor, tobacco or other substances onto the grounds and the consumption or use
of alcoholic liquor, tobacco or other substances within the grounds;
and
(iv) regulating the conduct of assemblies or the provision of
entertainment;
(f) to provide for the removal from TAFE SA grounds by persons
authorised in writing by TAFE SA of persons found contravening a by-law,
intoxicated persons, or vehicles brought onto or left on the grounds in
contravention of a by-law;
(g) to provide for the confiscation by persons authorised in writing by
TAFE SA of any thing brought onto, left on, possessed or used on
TAFE SA grounds in contravention of a by-law;
(h) to prescribe fines (not exceeding $1 250) for offences against
the by-laws;
(i) to prescribe expiation fees (not exceeding $160) for alleged offences
against the by-laws;
(j) to prescribe other matters expedient for the maintenance of good order
on TAFE SA grounds or for the protection of property or for the prevention
of hindrance to or interference with activities conducted on TAFE SA
grounds.
(2) A by-law operates generally throughout TAFE SA grounds unless its
operation is expressly or by necessary implication limited to a particular part
or particular parts of TAFE SA grounds.
(3) The Subordinate
Legislation Act 1978 (except section 10AA) applies to a by-law
made under this section (and consequently a by-law must be laid before
Parliament and is subject to disallowance under that Act).
(4) A by-law is to be made and takes effect as follows:
(a) a copy of the proposed by-law is to be sent to each director at least
14 days before the meeting of the board at which the by-law is to be
considered;
(b) if a majority of all the directors vote at a meeting in favour of the
proposed by-law, the by-law is to be submitted to the Minister for
approval;
(c) if the Minister approves the proposed by-law, the by-law is to be
submitted to the Governor for confirmation;
(d) the by-law must be published in the Gazette at the expense of
TAFE SA after confirmation;
(e) the by-law is taken to be made on the day of publication and takes
effect from that day or a later day fixed by the by-law.
(5) If a by-law has been confirmed by the Governor and published in the
Gazette, all conditions precedent to the making of the by-law will be
conclusively presumed to have been fulfilled.
(6) A by-law cannot take away or restrict civil or criminal liability
under another Act or at common law.
(1) An allegation in a complaint that a specified place is within
TAFE SA grounds will be taken to be proved in the absence of proof to the
contrary.
(2) In proceedings relating to an offence against a by-law, an allegation
in the complaint that a specified person was the owner or driver of a specified
vehicle on a specified day will be taken to be proved in the absence of proof to
the contrary.
(3) If, in proceedings relating to an offence against a by-law, it is
proved that a vehicle was parked in TAFE SA grounds in contravention of a
by-law, it will be presumed, in the absence of evidence to the contrary, that
the vehicle was so parked by the owner of the vehicle.
A fine recovered in respect of an offence against a by-law, and an
expiation fee paid in relation to an expiation notice issued for an alleged
offence against a by-law, must be paid to TAFE SA.
20—Availability
of rules and by-laws
(1) TAFE SA must ensure that a copy of each rule and by-law (in
up-to-date form) is published on the Internet and kept available for public
inspection without charge during normal office hours at the principal office of
TAFE SA.
(2) A person is entitled, on payment of a fee fixed by TAFE SA, to a
copy of a rule or by-law.
21—Protection
of proprietary interests of TAFE SA
(1) TAFE SA has a proprietary interest in all official
insignia.
(2) A person must not, without the consent of
TAFE SA—
(a) assume a name or description that consists of, or includes official
insignia; or
(b) assume a name or description that consists of, or includes "TAFE" or
"technical and further education" in circumstances in which it would be
reasonably understood to indicate that the person is TAFE SA; or
(c) in the course of a trade or business—
(i) use an official title for the purpose of promoting the sale of
services or the provision of benefits; or
(ii) sell goods marked with official insignia; or
(iii) use official insignia for the purpose of promoting the sale of goods
or services; or
(iv) use "TAFE" or "technical and further education" for the purposes of
promoting the sale of goods or services or the provision of benefits, or sell
goods marked with "TAFE" or "technical and further education", in circumstances
in which it would be reasonably understood to indicate that the goods, services
or benefits are provided by or in association with TAFE SA.
Maximum penalty: $20 000.
(3) A consent under this section—
(a) may be given with or without conditions (including conditions
requiring payment to TAFE SA); and
(b) must be given in writing addressed to the applicant for the consent;
and
(c) may be revoked by TAFE SA for a breach of a condition by notice
in writing given personally or by post to a person who has the benefit of the
consent.
(4) The Supreme
Court may, on the application of TAFE SA, grant an injunction to restrain a
breach of this section.
(5) The court by
which a person is convicted of an offence against this section may, on the
application of TAFE SA, order the convicted person to pay compensation of
an amount fixed by the court to TAFE SA.
(6)
Subsections (4)
and
(5) do not derogate
from any civil remedy that may be available to TAFE SA apart from those
subsections.
(7) The Minister
may, by notice in the Gazette, declare a design to be a logo in respect of
TAFE SA and may, by subsequent notice in the Gazette, revoke such a
declaration.
(8) In this section—
logo means a design (the copyright of which is vested in
TAFE SA) in respect of which a declaration under
subsection (7)
is in force;
official insignia means a logo or official title or a
combination of a logo and official title;
official title means TAFE SA.
(1) The Governor may
make such regulations as are contemplated by this Act, or necessary or expedient
for the purposes of this Act.
(2) Without limiting
the generality of
subsection (1), the
regulations may provide for the terms and conditions on which employees are
employed, their rights to leave of absence and any other privileges, their
rights on retirement from employment and any other matter affecting their
employment (and in doing so may relate to circumstances that occurred before the
commencement of this section).
(3) A regulation may not be made under
subsection (2)
unless the Minister has taken reasonable steps to consult with employees who, in
the opinion of the Minister, would be directly affected by the regulation, or
persons who, in the opinion of the Minister, represent such employees.
(4) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors; and
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister,
TAFE SA or the chief executive.
Schedule 1—Transitional
provisions
(1) A person holding office under section 15 of the Technical
and Further Education Act 1975 immediately before the commencement
of this clause is transferred to the employment of the chief executive of
TAFE SA on terms and conditions of employment that are the same as the
terms and conditions of appointment as applied to the person as an officer
immediately before that commencement, subject to this Act.
(2) A person employed under section 39AAB of the Technical
and Further Education Act 1975 immediately before the commencement
of this clause is transferred to the employment of the chief executive of
TAFE SA on the same terms and conditions of employment as applied to the
person immediately before that commencement, subject to this Act.
(3) The Minister
may, by notice in the Gazette, transfer a person who, immediately before the
commencement of this clause, was an employee of the chief executive of the
administrative unit that was under the Minister responsible for the
administration of the Technical
and Further Education Act 1975 to the employment of the chief
executive of TAFE SA on the same terms and conditions of employment as
applied to the person immediately before that commencement, subject to this
Act.
(4) The whole of Part 7 of the Public
Sector Act 2009 applies, subject to any modifications prescribed by
regulation, to the employment of persons who, immediately before their transfer
to the employment of the chief executive of TAFE SA under
subclause (3),
were Public Service employees while those employees remain in the employment of
the chief executive of TAFE SA.
(5) A transfer of a person under this clause does not constitute a breach
of the person's contract of employment or termination of the person's
employment, or affect the continuity of the person's employment for any
purpose.
The Technical
and Further Education Regulations 1999 as in force immediately
before the commencement of this clause continue in force as if they were made
under this Act and will be taken for the purposes of Part 3A of the Subordinate
Legislation Act 1978 to have been made on the day of commencement
of this clause.