2019 - 2020 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES NATIONAL SKILLS COMMISSIONER BILL 2020 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Employment, Skills, Small and Family Business, Senator the Hon Michaelia Cash)
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2019 - 2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL SKILLS COMMISSIONER BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment, Skills, Small and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS................................................................................... 4
LIST OF ABBREVIATIONS .................................................................................................................................. 8
NOTES ON CLAUSES ......................................................................................................................................... 9
Part 1 Preliminary ........................................................................................................................................ 9
Clause 1 - Short title ........................................................................................................................................... 9
Clause 3 - Simplified Outline of this Act ............................................................................................................. 9
Part 2 Establishment and functions of the National Skills Commissioner................................................... 10
Clause 5 - Simplified outline of this Part .......................................................................................................... 10
Clause 6 - National Skills Commissioner .......................................................................................................... 10
Clause 7 - Functions of the National Skills Commissioner ............................................................................... 10
Clause 8 - Establishment and functions of advisory committees .................................................................... 11
Clause 9 - Members of advisory committees................................................................................................... 12
Part 3 Administration ................................................................................................................................ 14
Clause 11 - Simplified outline of this Part ........................................................................................................ 14
Part 4 Miscellaneous ................................................................................................................................. 18
Clause 24 - Simplified outline of this Part ........................................................................................................ 18
1. This Part of the Bill provides for the preliminary provisions of the Bill, which includes
clauses on the short title of the Bill, the commencement, an outline and definitions.
Detailed explanation
Clause 1 - Short title
2. Should the Bill be enacted, this clause provides for the short title of the resulting Act to
be the National Skills Commissioner Act 2020.
Clause 2 - Commencement
3. The table in this clause provides that the whole of the Bill commences on the day after
the Bill receives the Royal Assent.
Clause 3 - Simplified Outline of this Act
4. This clause provides a simplified outline of the Bill. While simplified outlines are
included to assist readers to understand the substantive provisions of the Bill, the
outlines are not intended to be comprehensive. It is intended that readers should rely
on the substantive provisions.
Clause 4 - Definitions
5. This clause defines terms that appear in the Bill. These definitions include the following:
advisory committee means a committee established under clause 8.
Commissioner means the National Skills Commissioner referred to in clause 6.
paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).
Secretary means the Secretary of the Department.
VET means vocational education and training.
VET course has the same meaning as in the National Vocational Education and Training Regulator Act 2011.
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Part 2 Establishment and functions of the National Skills Commissioner
Outline of Part
6. This Part of the Bill establishes the office of the National Skills Commissioner and sets
out the Commissioner’s functions. It also includes provisions providing the Minister with
a power to establish advisory committees to advise the Commissioner in relation to the
performance of the Commissioner’s functions, and a power to issue Ministerial
directions to the Commissioner about the way in which the Commissioner is to carry
out their functions.
Detailed explanation
Clause 5 - Simplified outline of this Part
7. This clause provides a simplified outline of this Part. While simplified outlines are
included to assist readers to understand the substantive provisions of the Bill, the
outlines are not intended to be comprehensive. It is intended that readers should rely
on the substantive provisions.
Clause 6 - National Skills Commissioner
8. This clause provides that there is to be a National Skills Commissioner.
Clause 7 - Functions of the National Skills Commissioner
9. This clause prescribes the functions of the Commissioner. Subclause (1) provides that
functions of the Commissioner are:
to provide advice to the Minister or to the Secretary in relation to:
o Australia’s current, emerging and future workforce skills needs;
o the development of efficient prices for VET courses;
o the public and private return on government investment in VET qualifications;
o the performance of Australia’s system for providing VET;
o issues affecting the state of the Australian and international labour markets; and
to inform the public about the abovementioned matters; and
to collect, analyse, share and publish data and other information about the abovementioned matters to inform policy development and program delivery; and
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any other function that:
o is conferred on the Commissioner by the rules, this Act (once enacted), or by any other law of the Commonwealth; or
o is incidental or conducive to the performance of the above functions.
10. The Commissioner will provide independent and national leadership on skills, the
labour market and workforce development issues. In doing this, the Commissioner will
lead a strong research and analysis function, drawing on emerging data analytic
techniques to ensure Australia’s labour market analysis capability is world leading to
assist governments, tertiary education providers, employers and students make smart
choices about how to invest in training and skilling Australians.
11. The Commissioner will also develop and maintain a set of efficient prices for VET
courses by examining the cost drivers for courses, and the different public and private
returns for courses. An efficient price for a course does not mean the lowest price.
Central to this work will be a focus on quality, to determine the price that delivers the
skills that employers need and sets students up for a valuable career.
12. Subclause (2) provides that before the end of each calendar year beginning on or after
1 January 2021, the Commissioner must prepare and give to the Minister a report on
Australia’s current, emerging and future workforce skills needs during the calendar
year. Subclause (3) requires the Minister to table the report in each House of the
Parliament as soon as practicable after receiving the report. Subclause (4) provides that
the Commissioner must then publish the report as soon as practicable after the report
is tabled in the House of Representatives. If the rules specify the manner in which the
report is to be published, the Commissioner must publish the report in that manner.
Otherwise, the Commissioner must publish the report on the Department’s website.
13. This report will create an up to date and trusted resource for:
business and training providers to draw on to inform workforce planning;
the National Careers Institute to assist individuals to make informed decisions about learning, training and work pathways;
students to make informed decisions about their future, based on better information about their job prospects and incomes; and
Australian governments, as a robust basis for policy development.
Clause 8 - Establishment and functions of advisory committees
14. This clause allows the Minister to establish advisory committees to advise the
Commissioner in relation to the performance of the Commissioner’s functions. The
Minister may determine a committee’s terms of reference, the terms and conditions of
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appointment of its members, and the procedures it is to follow. By establishing such
committees, the Minister will be able to ensure the Commissioner has access to expert
advice about skills needs from a range of qualified stakeholders, including those
representing industry.
15. Subclause (3) provides that in performing their functions, the Commissioner must have
regard to any relevant advice given to the Commissioner by an advisory committee.
Subclause (4) clarifies that subclause (3) does not, by implication, limit the matters to
which the Commissioner may have regard.
Clause 9 - Members of advisory committees
16. This clause prescribe the appointment arrangements for member of advisory
committees.
17. Subclauses (1) and (2) provide that each member of an advisory committee is to be
appointed by the Minister by written instrument and that the Minister is only to
appoint a person if the Minister is satisfied that the person has appropriate
qualifications, knowledge or experience. For example, such qualification and experience
might include a detailed understanding of the skill needs in one or more industry
sectors, Australia’s current and emerging skilled occupational needs, the development
and provision of VET, labour market or VET policy experience, or qualifications in
specific disciplines relevant to the functions of the Commissioner, such as labour market
economics.
18. Subclause (3) provides that a member of an advisory committee is not an official of the
Department for the purposes of the PGPA Act.
19. Subclause (4) provides that a member of an advisory committee is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no determination of
that remuneration by the Tribunal is in operation, a member of an advisory committee
is to be paid the remuneration that is prescribed by the rules.
20. Subclause (5) provides that a member of an advisory committee must act in an
impartial and independent manner in relation to the giving of advice to the
Commissioner.
21. Subclauses (6) and (7) provide that a member of an advisory committee may resign
from the committee by giving the Minister a written resignation and the resignation
takes effect on the day it is received by the Minister or a later day specified by the
committee member in their resignation.
22. Subclauses (8) and (9) prescribe the circumstances in which the Minister may terminate
the appointment of a member of an advisory committee. The Minister may terminate
the appointment of a committee member for misbehaviour or if the member is unable
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to perform their duties because of physical or mental incapacity. The Minister may also
terminate the appointment of a committee member if the member: becomes bankrupt;
applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;
compounds with their creditors; makes an assignment of their remuneration for the
benefit of their creditors; or fails to comply with the requirement in subclause (5) for
them to give advice in an impartial and independent manner.
Clause 10 - Ministerial directions
23. This clause will allow for the Minister to give the Commissioner directions about the
way in which the Commissioner is to carry out their functions. For example, as the
Commissioner’s functions include giving advice about issues affecting the state of the
Australian and international labour markets, and collecting and analysing VET data and
other information, the Minister may direct the Commissioner, when performing these
functions, to consider how the VET sector can respond to the challenges posed by the
COVID-19 pandemic or other unforeseen shocks that may impact the economy and
labour market, such as a natural disaster.
24. The directions will be a legislative instrument. A note clarifies that section 42
(disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act do not apply to
directions given under subclause (1). Item 2 in section 9 (disallowance) and item 3 in
section 11 (sunsetting) of the Legislation (Exemptions and Other Matters) Regulation
2015 provide that instruments that are a direction by a Minister to any person or body
are an exempted class of instruments for the purpose of disallowance and sunsetting.
Those exemptions recognise that executive control is intended when an Act provides a
Minister with a power to issue such directions, and sunsetting is not appropriate for
such directions which are intended to remain in place until revoked by the Minister.
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Part 3 Administration
Outline of Part
25. Part 3 of the Bill deals with administrative matters relating to the office of the National
Skills Commissioner, including the appointment of the Commissioner and the terms and
conditions on which the Commissioner holds office.
Detailed explanation
Clause 11 - Simplified outline of this Part
26. This clause provides a simplified outline of this Part. While simplified outlines are
included to assist readers to understand the substantive provisions of the Bill, the
outlines are not intended to be comprehensive. It is intended that readers should rely
on the substantive provisions.
Clause 12 - Appointment
27. This clause provides that the Commissioner is to be appointed by the Minister by
written instrument. The Commissioner is to be appointed on a full-time basis for the
period specified in the instrument of appointment, which must not exceed 5 years.
28. A note under subclause (1) provides the Commissioner may be reappointed.
Section 33AA of the Acts Interpretation Act provides that if an Act confers a power to
make an appointment, the power is taken to include a power of reappointment.
29. Subclause (3) provides that a person may only be appointed as the Commissioner if the
Minister is satisfied that the person has appropriate qualifications, knowledge or
experience. Example of such knowledge, qualifications and experience include: relevant
tertiary qualifications; senior organisational leadership and innovation across
government or the private sector; knowledge and experience in the use of existing and
emerging data sources and cutting-edge analytic techniques to underpin research and
analysis; and strong representation, communication and stakeholder engagement skills.
Clause 13 - Acting appointments
30. This clause allows the Minister to appoint a person to act as the Commissioner during a
vacancy in the office of the Commissioner (whether or not an appointment has
previously been made to the office), or during any period when the Commissioner is
absent from duty or from Australia or is unable to perform the duties of the office.
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31. A note under subclause 13(1) refer to rules that apply to acting appointments under
sections 33AB and 33A of the Acts Interpretation Act.
32. Subclause (2) provides that the Minister may only appoint a person to act as the
Commissioner if the Minister is satisfied that the person has appropriate qualifications,
knowledge or experience.
Clause 14 - Remuneration
33. This clause sets out the remuneration arrangements for the Commissioner.
Subclause (1) provides that the Commissioner is to be paid the remuneration that is
determined by the Remuneration Tribunal, and that if no determination of that
remuneration by the Tribunal is in operation, the Commissioner is to be paid the
remuneration that is prescribed by the rules. Subclause (2) provides that the
Commissioner is to be paid the allowances that are prescribed by the rules. This clause
has effect subject to the Remuneration Tribunal Act 1973.
Clause 15 - Leave of absence
34. This clause provides that the Commissioner has the recreation leave entitlements that
are determined by the Remuneration Tribunal and that the Minister may grant the
Commissioner other types of leave on the terms and conditions that the Minister
determines.
Clause 16 - Engaging in other paid work
35. This clause provides that the Commissioner must not engage in paid work outside the
duties of the Commissioner’s office without the Minister’s approval. The Bill contains a
definition of paid work, which means work for financial gain or reward (whether as an
employee, a self-employed person or otherwise). The Commissioner must not engage in
paid work without the Minister’s approval to ensure that they are able to commit
themselves entirely to the role of the Commissioner and avoid any potential, real or
perceived conflicts of interest – upholding the principles of independence, transparency
and accountability.
Clause 17 - Other terms and conditions
36. This clause allows for the Minister to determine terms and conditions of the
Commissioner’s appointment in relation to matters not covered by the Bill.
Clause 18 - Resignation
37. This clause provides that the Commissioner may resign their appointment by giving the
Minister a written resignation. The resignation takes effect on the day it is received by
the Minister or a later day if specified in the resignation.
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Clause 19 - Termination of appointment
38. This clause prescribes the circumstances in which the Minister may terminate the
appointment of the Commissioner. Subclause (1) provides that the Minister may
terminate the appointment of the Commissioner for misbehaviour, or if the
Commissioner is unable to perform the duties of their office because of physical or
mental incapacity.
39. Subclause (2) provides that the Minister may terminate the appointment of the
Commissioner if the Commissioner: becomes bankrupt; applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors; compounds with the
Commissioner’s creditors; or makes an assignment of the Commissioner’s remuneration
for the benefit of the Commissioner’s creditors.
40. The Commissioner’s appointment may also be terminated if: the Commissioner is
absent, except on leave of absence, for 14 consecutive days or for 28 days in any
12 months; engages, except with the Minister’s approval, in paid work outside the
duties of the Commissioner’s office; or the Commissioner fails, without reasonable
excuse, to comply with the requirements of officials to disclose conflicts interest under
section 29 of the PGPA Act or rules made for the purposes of that section.
Clause 20 - Application of the finance law etc.
41. This clause concerns the application of the finance law to the Commissioner. The
finance law has the meaning given by the PGPA Act, which defines the finance law as
including the PGPA Act, the Public Governance, Performance and Accountability Rule
2014, an instrument made under the PGPA Act, or an Appropriation Act. Subclause (1)
provides that for the purposes of the finance law, the Commissioner is taken to be an
official of the Department. As an official of a Commonwealth, the Commissioner will
have a number of duties under sections 25 to 29 of the PGPA Act.
42. Subclause (2) provides that when preparing the Department’s annual report under
section 46 of the PGPA Act, the Secretary must include information in that report about
the performance of the Commissioner’s functions, and the exercise of the
Commissioner’s powers.
Clause 21 - Arrangements relating to staff of the Department
43. This clause allows for the Secretary to make employees of the Department available to
assist the Commissioner in connection with the performance of the Commissioner’s
functions. When performing services for the Commissioner, these APS employees are
subject to the directions of the Commissioner.
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Clause 22 - Other persons assisting the Commissioner
44. This clause provides that, in addition to those employees of the Department made
available by the Secretary, the Commissioner may also be assisted by employees of
other Agencies (within the meaning of the Public Service Act) whose services are made
available to the Commissioner in connection with the performance of any of the
Commissioner’s functions. Subclause (2) provide that when performing services for the
Commissioner, the employees are subject to the directions of the Commissioner.
Section 7 of the Public Service Act currently provides that an Agency means a
Department, an Executive Agency established under section 65 of that Act, or another
body or group of persons declared to be Statutory Agency for the purposes of that Act.
The clause has been included to allow Commonwealth agencies other than the
Department making staff available to assist the Commissioner.
Clause 23 - Consultants
45. This clause allows for the Commissioner, on behalf of the Commonwealth, to engage
consultants to assist in the performance of the Commissioner’s functions on the terms
and conditions that the Commissioner determines in writing. Examples of the work that
the Commissioner might engage consultants to perform include tasks or projects for
which the Department may not have sufficient in-house expertise, or where an
independent perspective is valuable.
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Part 4 Miscellaneous
Outline of Part
46. This Part contains miscellaneous provisions, such as delegations and the general
rule-making power.
Detailed explanation
Clause 24 - Simplified outline of this Part
47. This clause provides a simplified outline of this Part. While simplified outlines are
included to assist readers to understand the substantive provisions of the Bill, the
outlines are not intended to be comprehensive. It is intended that readers should rely
on the substantive provisions.
Clause 25 - Delegation
48. This clause allows the Minister and Commissioner to delegate certain powers under the
Act. Subclause (1) provides that the Minister may, in writing, delegate the Minister’s
powers under subclause 13(1) or 15(2), to the Secretary of the Department, or an SES,
or an acting SES employee, in the Department. These powers are the power to appoint
a person to act as the Commissioner, and the power to grant the Commissioner leave of
absence (other than recreation leave).
49. Subclause (2) provides that the Commissioner may, in writing, delegate all or any of
their functions or powers under this Act to a person who:
is a member of the staff assisting the Commissioner as mentioned in subclause 21(1);
or
a person whose services are made available to the Commissioner as mentioned in
subsection 22(1); and
holds or is acting in an Executive Level 2 position, or an equivalent or higher position.
50. It is necessary for the Commissioner to delegate their functions and powers to
Executive Level 2 staff or higher, as it is envisaged that it will be administratively
unfeasible for the Commissioner to personally exercise all of their functions and powers
under the Bill. The power to delegate any or all of the Commissioner’s functions and
powers will allow the Commissioner to ensure all of their functions are effectively
exercised.
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51. Subclause (3) provides that in performing a delegated function or exercising a delegated
power, the delegate must comply with any written directions of the Minister or
Commissioner, as the case requires.
52. Notes under subclauses (1) and (2) refer to sections 34AA to 34A of the Acts
Interpretation Act, which contain provisions relating to delegations.
Clause 26 - Rules
53. This clause enables rules to be made, prescribing matters that are required or
permitted by other provisions in the Bill to be prescribed by the rules, or that are
necessary or convenient for carrying out or giving effect to the Bill. For example, the
rules may confer additional functions on the Commissioner. The rules will also
determine the allowances that are to be paid to the Commissioner and may determine
the remuneration of Commissioner or advisory committee members if no
Remuneration Tribunal determinations are in place.
54. Dealing with these matters in rules rather than regulations accords with the Office of
Parliamentary Counsel’s Drafting Direction No. 3.8 – Subordinate legislation, which can
be found at https://www.opc.gov.au/drafting-resources/drafting-directions. That
Drafting Direction states that ‘OPC’s starting point is that subordinate instruments
should be made in the form of legislative instruments (as distinct from regulations)
unless there is good reason not to do so’.
55. Consistent with the Drafting Direction, the approach of dealing with these matters in
rules (rather than regulations) has a number of advantages including:
it facilitates the use of a single type of legislative instrument (or a reduced number of
types of instruments) being needed for the Act; and
it enables the number and content of the legislative instruments under the Act to be
rationalised; and
it simplifies the language and structure of the provisions in the Act that provide the
authority for the legislative instruments; and
it shortens the Act.
56. Due to these advantages, the Drafting Direction states that drafters should adopt this
approach where appropriate with new Acts.
57. The Drafting Direction states that matters such as compliance and enforcement, the
imposition of taxes, setting amounts to be appropriated, and amendments to the text
of an Act, should be included in regulations unless there is a strong justification
otherwise. The Bill does not enable rules to provide for any of these matters. This is