Universities Accord (Australian Tertiary Education Commission) Act 2026

Contents

Part 1 · Preliminary

1Short title#

This Act is the Universities Accord (Australian Tertiary Education Commission) Act 2026.

2Commencement#

(1)Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. The whole of this Act	The 28th day after this Act receives the Royal Assent.	29 April 2026

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2)Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3Objects of this Act#

(1)The objects of this Act are the following:

(a)to provide stewardship of the higher education system;

(b)to strengthen the higher education system to enable the delivery of quality teaching and learning and internationally competitive research and research training;

(c)to ensure the higher education system has the capacity and capability required to meet Australia’s current and future student, skills and workforce demand;

(d)to increase equitable access to, and participation and success in, the higher education system by all students;

(e)to promote coordination and collaboration between the Commonwealth, the governments of the States and Territories, higher education providers, industry, employers, unions and the public in relation to the future of the higher education system;

(f)to improve coordination and collaboration between the higher education system and the VET system;

(g)to recognise the role of Aboriginal persons and Torres Strait Islanders in the higher education system and improving Aboriginal persons’ and Torres Strait Islanders’ access to, and participation and success in, the higher education system;

(h)to recognise the public-focused mission of higher education, the importance of academic freedom and the crucial role of higher education in developing knowledge and critical inquiry for the benefit of society.

(2)In order to achieve its objects, this Act provides for the establishment of the Australian Tertiary Education Commission.

4Simplified outline of this Act#

This Act establishes the Australian Tertiary Education Commission (the ATEC) and provides for the appointments of the ATEC Commissioners.

The ATEC consists of the Chief Commissioner, the First Nations Commissioner and the Commissioners.

The purpose of the ATEC is to provide stewardship of the higher education system. The ATEC provides this stewardship primarily by:

(a) entering into mission based compacts with Table A and Table B providers; and

(b) preparing reports, and providing advice and recommendations to various Commonwealth, State and Territory Ministers.

If the Minister determines the number of overseas students that may commence a course of education with ESOS registered higher education providers during a particular period, the ATEC must allocate places for those students to one or more such providers for the period.

The Act also deals with administrative and miscellaneous matters relating to the ATEC and the ATEC’s powers and functions, including meetings, decision-making, appointments and Ministerial directions.

5Definitions#

In this Act:

Aboriginal person means a person of the Aboriginal race of Australia.

academic freedom has the same meaning as in the Higher Education Support Act 2003.

allocation means an allocation made under subsection 46C(1).

ATEC means the Australian Tertiary Education Commission.

ATEC Commissioner means:

(a)the Chief Commissioner; or

(b)the First Nations Commissioner; or

(c)a Commissioner.

Chief Commissioner means the Chief Commissioner appointed under section 56.

Commissioner means a Commissioner appointed under section 58.

Commonwealth contribution amount has the same meaning as in the Higher Education Support Act 2003.

course of education: see section 5A.

ESOS registered higher education provider means a registered higher education provider (within the meaning of the Tertiary Education Quality and Standards Agency Act 2011) that is registered under Part 2 of the Education Services for Overseas Students Act 2000.

First Nations Commissioner means the First Nations Commissioner appointed under section 57.

funding clusters has the same meaning as in the Higher Education Support Act 2003.

higher education provider has the same meaning as in the Higher Education Support Act 2003.

Higher Education Standards Framework has the same meaning as in the Tertiary Education Quality and Standards Agency Act 2011.

international allocation pool determination: see subsection 46B(1).

international student profile: see subsection 46C(4).

National Tertiary Education Objective: see section 13.

number of international student places: see subsection 46C(3).

overseas student has the same meaning as in the Education Services for Overseas Students Act 2000.

paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

Research Minister means the Minister who administers the Australian Research Council Act 2001.

rules means the rules made under section 75.

Science Minister means the Minister who administers the Industry Research and Development Act 1986.

Secretary means the Secretary of the Department.

Table A provider has the same meaning as in the Higher Education Support Act 2003.

Table B provider has the same meaning as in the Higher Education Support Act 2003.

tertiary education means higher education, including teaching, learning and research, and VET, including research.

tertiary education provider means:

(a)a higher education provider; and

(b)a registered training organisation within the meaning of the Higher Education Support Act 2003.

tertiary education system means the higher education system and the VET system.

Torres Strait Islander means a descendant of an Indigenous inhabitant of the Torres Strait Islands.

VET means vocational education and training.

VET Minister means the Minister who administers the National Vocational Education and Training Regulator Act 2011.

5AMeaning of course of education#

(1)Subject to subsection (2), a course of education is a course that satisfies one or both of the following:

(a)the course leads to a qualification recognised in the Australian Qualifications Framework (within the meaning of the Higher Education Support Act 2003);

(b)the course is offered by a registered higher education provider (within the meaning of the Tertiary Education Quality and Standards Agency Act 2011).

(2)A course is not a course of education if it is any of the following:

(a)a course of education at a level that, under section 15 of the Australian Education Act 2013, constitutes primary education or secondary education;

(b)a course to which the Foundation Program Standards (within the meaning of the Education Services for Overseas Students Act 2000) apply;

(c)a course to which the ELICOS Standards (within the meaning of the Education Services for Overseas Students Act 2000) apply;

(d)a VET course (within the meaning of the National Vocational Education and Training Regulator Act 2011).

6Constitutional limits#

(1)The ATEC may perform its functions and exercise its powers only in accordance with this section.

Main constitutional basis

(2)The ATEC may perform its functions and exercise its powers with respect to:

(a)the executive power of the Commonwealth; or

(b)matters incidental to the execution of any of the legislative powers of the Parliament.

Other constitutional bases

(3)In addition, the ATEC may perform its functions and exercise its powers with respect to:

(a)corporations to which paragraph 51(xx) of the Constitution applies; or

(b)the people of any race for whom it is deemed necessary to make special laws.

Meaning of terms

(4)A term used in this section and the Constitution has the same meaning in this section as it has in the Constitution.

Part 2 · Establishment and functions of the Australian Tertiary Education Commission

Division 1 · Introduction

7Simplified outline of this Part#

This Part establishes the Australian Tertiary Education Commission (the ATEC), the offices of the Chief Commissioner, the First Nations Commissioner and the Commissioners, and sets out the functions of the ATEC and the ATEC Commissioners.

The main functions of the ATEC are:

(a) to enter into mission based compacts with Table A and Table B providers; and

(b) to prepare reports, and provide advice and recommendations to the Minister, the VET Minister and the Ministers for each State and Territory responsible for higher education or VET, in relation to the tertiary education system; and

(c) to consult and collaborate with Commonwealth, State and Territory Ministers and participants and stakeholders in the tertiary education system.

The primary function of the ATEC Commissioners is to assist the ATEC in the performance of its functions.

When performing functions and exercising powers, the ATEC and the ATEC Commissioners must have regard to the National Tertiary Education Objective and the objective of improving outcomes for persons facing systemic barriers to education.

This Part also sets out the staff whose services are made available by the Secretary to assist the ATEC, establishes the First Nations Advisory Committee and the Higher Education Standards Committee and enables the ATEC to establish other committees to provide advice or recommendations to the ATEC.

Division 2 · The Australian Tertiary Education Commission

8Establishment of the Australian Tertiary Education Commission#

The Australian Tertiary Education Commission is established by this section.

9Composition of the ATEC#

The ATEC consists of:

(a)the Chief Commissioner; and

(b)the First Nations Commissioner; and

(c)the Commissioners.

10Part of the Department for certain purposes#

For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the ATEC is prescribed in relation to the Department.

Note: This means that the ATEC Commissioners are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.

11Functions of the ATEC#

The ATEC has the following functions:

(a)to consult and collaborate with participants and stakeholders in the tertiary education system;

(b)to enter into mission based compacts with Table A and Table B providers and assess providers against the terms of their compacts;

(c)to prepare reports, and provide advice and recommendations to the Minister, the VET Minister and the Ministers for each State and Territory responsible for higher education or VET, in relation to the higher education system and the tertiary education system;

(d)to prepare reports, and provide advice and recommendations to the Minister, in relation to:

(i)improving higher education access, participation and outcomes for persons facing systemic barriers to education, including Aboriginal persons and Torres Strait Islanders, persons with disability, persons of a low socioeconomic background and persons living in regional Australia; and

(ii)the efficient cost of higher education across disciplines and student cohorts and in relation to the Commonwealth contribution amounts for places in funding clusters; and

(iii)opportunities to streamline the regulation of higher education providers;

(e)to provide advice and recommendations to the Minister in relation to the Higher Education Standards Framework under the Tertiary Education Quality and Standards Agency Act 2011;

(f)to provide advice and recommendations to the Tertiary Education Quality and Standards Agency in relation to the Higher Education Standards Framework under the Tertiary Education Quality and Standards Agency Act 2011, either on the ATEC’s own initiative or at the request of the agency;

(fa)to provide advice and recommendations to the Minister in relation to research and research training;

(g)to report and publish information in relation to the tertiary education system and higher education providers;

(h)to allocate numbers of international student places to ESOS registered higher education providers in accordance with a determination of the Minister;

(i)any other functions conferred on the ATEC by this Act, the rules or any other law of the Commonwealth;

(j)to undertake or coordinate research and data analysis activities in relation to any of the above functions;

(k)to do anything incidental or conducive to the performance of any of the above functions.

Note: The functions mentioned in paragraph (i) include the allocation of Commonwealth supported places to certain higher education providers under Part 2-2 of the Higher Education Support Act 2003.

12Consultation when performing functions and exercising powers#

In performing its functions or exercising its powers, the ATEC may consult with any of the following persons or bodies:

(a)the Minister;

(b)if the Minister is not the VET Minister—the VET Minister;

(c)if the Minister is not the Research Minister—the Research Minister;

(d)if the Minister is not the Science Minister—the Science Minister;

(e)the Ministers for each State and Territory responsible for higher education;

(f)the Ministers for each State and Territory responsible for VET;

(g)higher education system stakeholder representatives;

(h)higher education student representatives;

(i)any other person or body that the ATEC considers appropriate.

13The National Tertiary Education Objective#

(1)The National Tertiary Education Objective is the objective for tertiary education in Australia to:

(a)promote a strong, equitable and resilient democracy; and

(b)drive national, economic and social development and environmental sustainability.

(2)In performing functions or exercising powers, the ATEC and the ATEC Commissioners must have regard to the National Tertiary Education Objective.

14Objective of improving outcomes for certain persons#

In performing functions or exercising powers, the ATEC and the ATEC Commissioners must have regard to the objective of improving outcomes for persons facing systemic barriers to education, including Aboriginal persons and Torres Strait Islanders, persons with disability, persons of a low socioeconomic background and persons living in regional Australia.

15Minister’s strategic priorities#

(1)The Minister may, in writing, notify the ATEC of the Minister’s short-term and long-term strategic priorities (if any) for the tertiary education system.

(2)Before notifying the ATEC of any priorities under subsection (1), the Minister must:

(a)if the priorities relate to VET and the Minister is not the VET Minister—seek and obtain the agreement of the VET Minister regarding the priorities; and

(b)if the priorities relate to research and:

(i)the Minister is not the Research Minister—consult with the Research Minister; and

(ii)the Minister is not the Science Minister—consult with the Science Minister.

(3)A notification under subsection (1) must be published on the ATEC’s website within 4 weeks of the notification.

Note: The publication of certain information contained in a notification may be restricted (see section 70).

(4)If the Minister notifies the ATEC of any priorities under subsection (1), the ATEC must take those priorities into account when performing its functions or exercising its powers under this Act.

Note: The ATEC must also take those priorities into account when performing its functions relating to the allocation of Commonwealth supported places under Part 2-2 of the Higher Education Support Act 2003 (see subsection 30-45(1) of that Act).

(5)Subsection (1) does not limit the Minister’s power to give the ATEC Commissioners directions under section 71.

(6)A notification under subsection (1) is not a legislative instrument.

Division 3 · The ATEC Commissioners

16Chief Commissioner#

There is to be a Chief Commissioner.

Note: For provisions relating to the Chief Commissioner’s appointment, see Divisions 3 and 4 of Part 5.

17Functions of the Chief Commissioner#

The functions of the Chief Commissioner are:

(a)to assist the ATEC in the performance of its functions; and

(b)such other functions as are conferred on the Chief Commissioner by the rules, this Act or any other law of the Commonwealth; and

(c)to do anything incidental or conducive to the performance of any of the above functions.

Note: The Chief Commissioner has various functions under Division 2 of Part 5 (ATEC meetings and decision-making).

18First Nations Commissioner#

There is to be a First Nations Commissioner.

Note: For provisions relating to the First Nations Commissioner’s appointment, see Divisions 3 and 4 of Part 5.

19Functions of the First Nations Commissioner#

The functions of the First Nations Commissioner are:

(a)to assist the ATEC in the performance of its functions; and

(b)to consult with Aboriginal persons and Torres Strait Islanders in relation to tertiary education matters; and

(c)to promote the interests and perspectives of Aboriginal persons and Torres Strait Islanders in the development and implementation of tertiary education policy; and

(d)to undertake research and provide advice to the Chief Commissioner and the Commissioners on matters in relation to the participation in tertiary education by, and outcomes relating to, Aboriginal persons and Torres Strait Islanders; and

(e)such other functions as are conferred on the First Nations Commissioner by the rules, this Act or any other law of the Commonwealth; and

(f)to do anything incidental or conducive to the performance of any of the above functions.

20Commissioners#

There is to be at least 1, but not more than 3, Commissioners.

Note: For provisions relating to a Commissioner’s appointment, see Divisions 3 and 4 of Part 5.

21Functions of the Commissioners#

The functions of the Commissioners are:

(a)to assist the ATEC in the performance of its functions; and

(b)such other functions as are conferred on the Commissioners by the rules, this Act or any other law of the Commonwealth; and

(c)to do anything incidental or conducive to the performance of any of the above functions.

Division 4 · Other persons

22Departmental staff assisting the ATEC#

(1)The staff assisting the ATEC are to be APS employees in the Department whose services are made available to the ATEC by the Secretary, in connection with the performance of any of the ATEC’s functions.

(2)The Secretary must consult the ATEC before making the services of an SES employee available to the ATEC.

(3)When performing services for the ATEC, the staff whose services are made available to the ATEC are subject to the directions of the ATEC Commissioners.

23Other persons assisting the ATEC#

(1)The ATEC may also be assisted by employees of Agencies (within the meaning of the Public Service Act 1999) whose services are made available to the ATEC in connection with the performance of any of the ATEC’s functions.

(2)The Secretary may, on behalf of the Commonwealth, make an arrangement with the appropriate authority or officer of:

(a)a State or Territory government; or

(b)a State or Territory government authority;

under which the government or authority makes officers or employees available to the ATEC to perform services, in accordance with this section, in connection with the performance of any of the ATEC’s functions.

(3)An arrangement under subsection (2) may provide for the Commonwealth to reimburse a State or Territory with respect to the services of a person to whom the arrangement relates.

(4)When performing services for the ATEC under this section, a person is subject to the directions of the ATEC Commissioners.

24Contractors and consultants#

(1)The Secretary may, on behalf of the Commonwealth, engage contractors or consultants to assist in the performance of the ATEC’s functions.

(2)The contractors or consultants are to be engaged on the terms and conditions that the Secretary determines in writing.

Division 5 · Committees

25Committees#

First Nations Advisory Committee

(1)The ATEC must establish a committee to be known as the First Nations Advisory Committee to provide advice and recommendations to the ATEC in relation to participation and outcomes for Aboriginal persons and Torres Strait Islanders in tertiary education and Aboriginal and Torres Strait Islander knowledge.

Higher Education Standards Committee

(1A)The ATEC must establish a committee to be known as the Higher Education Standards Committee to provide advice and recommendations to the ATEC in relation to its functions under:

(a)paragraphs 11(e) and (f) of this Act; and

(b)sections 58A and 58B of the Tertiary Education Quality and Standards Agency Act 2011.

(1B)Without limiting subsection (4), in determining the membership of the Higher Education Standards Committee, the ATEC must:

(a)ensure the members collectively have an appropriate balance of professional knowledge and demonstrated expertise, including in higher education and in the development of standards relating to the quality of higher education; and

(b)ensure the members collectively have contemporary experience in the provision of higher education by registered higher education providers (within the meaning of the Tertiary Education Quality and Standards Agency Act 2011); and

(c)have regard to the interests of the States and Territories, current and prospective higher education students, and staff of higher education providers.

Other committees

(2)The ATEC may establish other committees to provide advice or recommendations to the ATEC in relation to the performance of the ATEC’s functions.

General

(3)A committee established under this section is to consist of such persons as the ATEC determines.

(4)The ATEC must ensure that the members of a committee have appropriate knowledge or experience relevant to the subject matter of the committee.

(5)The ATEC may determine for a committee:

(a)the committee’s terms of reference; and

(b)the terms and conditions of appointment of the members of the committee; and

(c)the procedures to be followed by the committee; and

(d)the committee’s reporting requirements.

(6)Members of a committee are not officials for the purposes of the Public Governance, Performance and Accountability Act 2013.

Part 3 · Mission based compacts and default mission based compacts

Division 1 · Introduction

26Simplified outline of this Part#

This Part deals with mission based compacts and default mission based compacts.

The ATEC may enter into a mission based compact with a Table A or Table B provider. From 1 January 2028, the ATEC must assess a provider at least once every calendar year against a compact that is or was in force for the provider for a relevant period.

Mission based compacts may be suspended by the ATEC for various reasons including if the ATEC reasonably believes that the provider has failed to meet, or has breached, a term of their compact, or will be unable to meet a term.

The ATEC must publish a list of providers that have suspended compacts on the ATEC’s website.

If there is no mission based compact in force between the ATEC and a Table A or Table B provider (because, for example, a compact has not been entered into or the compact has been suspended), a default mission based compact is in force between the ATEC and the provider.

Division 2 · Mission based compacts

27Mission based compacts#

(1)The ATEC may, on behalf of the Commonwealth, enter into a mission based compact with a Table A or Table B provider.

Note 1: A mission based compact, or a default mission based compact, must be in force between the ATEC and a Table A or Table B provider in respect of each year for which a grant under Chapter 2 of the Higher Education Support Act 2003 is paid to the provider (see section 19-110 of that Act).

Note 2: If the ATEC reasonably believes a provider has failed to comply with a term of their mission based compact, this may result in a suspension of their compact (see paragraph 33(1)(a)). Failure to comply with a term may also constitute a failure to comply with other requirements that the provider is subject to, and may lead to other consequences. For example, it may result in the Tertiary Education Quality and Standards Agency taking regulatory action in relation to the provider’s compliance with the Higher Education Standards Framework.

(2)The ATEC must publish the compact on the ATEC’s website within 28 days after the compact is entered into. The ATEC must ensure the published compact is kept up-to-date.

Note: The publication of certain information contained in a compact may be restricted (see section 70).

28Purpose of mission based compacts#

The purpose of a mission based compact between the ATEC and a Table A or Table B provider is to give the provider flexibility to pursue their goals and mission while also enabling the provider to:

(a)contribute to diversity within the higher education system; and

(b)contribute to higher education priorities including those set out in the statement of strategic priorities prepared under section 43; and

(c)meet the higher education needs of the provider’s students and community.

29Form and terms#

(1)The ATEC must decide on the form and terms of a mission based compact.

(2)In deciding the form and terms of a compact, the ATEC must:

(a)consider the strategic priorities and outcomes set out in any statement of strategic priorities prepared under section 43, which relates to a calendar year during which the compact is to be in force; and

(b)consider the purpose of mission based compacts as set out in section 28; and

(c)consider the goals, missions, strategic plan, geographic location and local community of the Table A or Table B provider who is entering into the compact; and

(d)consider any assessment made under subsection 30(1) in relation to the provider; and

(e)consider the effect (if any) the proposed terms may have on the academic freedom of the provider; and

(f)negotiate the form and terms of the compact with the provider.

(3)The ATEC and the provider must participate in the negotiations under paragraph (2)(f) in good faith.

(4)Without limiting subsection (1), a compact:

(a)must include terms that specify measurable performance indicators relevant to the provider’s goals or mission; and

(b)must set out the methodologies to be used to assess the provider’s performance against the terms of the compact; and

(c)must not include the international student profile for the provider as a term of the compact.

Note: See subsection 46C(4) for the meaning of international student profile.

30Assessment of providers against terms#

(1)The ATEC must assess, at least once every calendar year starting on or after 1 January 2028, a Table A or Table B provider’s outcomes against the terms of at least one mission based compact that:

(a)comes into force on or after 1 January 2027; and

(b)is either of the following:

(i)the mission based compact currently in force for the provider;

(ii)the last mission based compact in force for the provider before the compact mentioned in subparagraph (i) came into force.

(2)In order to make an assessment under subsection (1), the ATEC may, by notice in writing, require the provider to provide such information as the ATEC directs within the period specified in the notice.

(3)In making an assessment under subsection (1), the ATEC must:

(a)consider the steps taken by the provider to meet the terms of the compact; and

(b)take into account matters affecting the provider’s ability to meet the terms of the compact, including any matter reasonably outside the provider’s control.

(4)The ATEC may publish a report in relation to an assessment on the ATEC’s website.

Note: The publication of certain information contained in a report may be restricted (see section 70).

31Progress meetings#

(1)The ATEC may conduct meetings with a Table A or Table B provider to discuss the provider’s progress towards meeting the terms of their mission based compact.

(2)Meetings under subsection (1) may be conducted once per calendar year, unless otherwise agreed by the ATEC and the provider.

32Variation of compacts#

(1)The ATEC may vary the terms of a mission based compact with a Table A or Table B provider with the agreement of the provider.

(2)The provider may make a request for the ATEC to vary the terms of the provider’s compact under subsection (1).

33Suspension of compacts#

(1)The ATEC may, by written notice given to a Table A or Table B provider, suspend a mission based compact with the provider if:

(a)the ATEC reasonably believes that, for reasons within the provider’s control, the provider:

(i)has failed to meet, or has breached, a term of the compact; or

(ii)will be unable to meet a term of the compact; or

(b)the provider fails to comply with a requirement to provide information to the ATEC under subsection 30(2); or

(c)if the ATEC is negotiating with the provider under paragraph 29(2)(f) for the purpose of entering into a subsequent compact with the provider—the ATEC reasonably believes that the provider is not participating in the negotiations in good faith.

Note: If the ATEC suspends a compact, the compact is not in force between the ATEC and the provider (see paragraph 35(a)). If a compact under this Division is not in force, a default compact is in force (see subsection 36(1)).

(2)Before the ATEC suspends a compact under subsection (1), the ATEC must give the provider a notice of the proposed suspension, in writing, at least 28 business days before the suspension.

(3)The notice under subsection (2) must:

(a)set out the reason for the proposed suspension; and

(b)invite the provider to respond to the reason for the proposed suspension within the period specified in the notice; and

(c)if the reason for the proposed suspension is a reason specified in subparagraph (1)(a)(i) or (a)(ii)—invite the provider to engage with the ATEC in relation to that reason.

(4)In suspending a compact under subsection (1), the ATEC must take into account:

(a)any response by the provider to the notice given to the provider under subsection (2); and

(b)if the reason for the suspension is a reason specified in subparagraph (1)(a)(i) or (a)(ii):

(i)the nature and seriousness of the reason, including any impact the reason may have on the provider’s students or staff; and

(ii)any engagement the ATEC has had with the provider in relation to the reason, including engagement in response to the notice given to the provider under subsection (2); and

(iii)the provider’s history of compliance with their compact.

(5)The ATEC must publish a list of providers whose compacts are suspended under this section on the ATEC’s website. The ATEC must ensure the list is kept up-to-date.

Note: The publication of certain information contained in the list may be restricted (see section 70).

34Removal of suspension#

(1)If the ATEC suspends a mission based compact with a Table A or Table B provider under section 33, the ATEC may, by written notice to the provider, remove the suspension.

(2)Without limiting subsection (1), the ATEC may remove a suspension if:

(a)where the reason for the suspension is the reason specified in subparagraph 33(1)(a)(ii)—the ATEC reasonably believes that the provider will be able to meet the term of the compact; or

(b)where the reason for the suspension is the reason specified in paragraph 33(1)(b)—the provider complies with the requirement to provide information to the ATEC; or

(c)where the reason for the suspension is the reason specified in paragraph 33(1)(c)—the ATEC reasonably believes that the provider is participating in the negotiations in good faith.

35Period in force#

A mission based compact is in force for a period of up to 4 years, as specified in the compact, from the day specified in the compact unless:

(a)the ATEC suspends the compact under section 33; or

(b)the ATEC and the Table A or Table B provider agree to terminate the compact; or

(c)the Table A or Table B provider, by written notice to the ATEC, terminates the compact; or

(d)the Table A or Table B provider who entered the compact ceases to be a Table A or Table B provider.

Division 3 · Default mission based compacts

36Default mission based compacts#

(1)If a mission based compact under Division 2 of this Part is not in force between the ATEC and a Table A or Table B provider, a default mission based compact is in force between the ATEC and the provider.

Note: A mission based compact under Division 2 of this Part may not be in force between the ATEC and a Table A or B provider because, for example, the ATEC and the provider have not entered into a compact or the ATEC has suspended the provider’s compact (see paragraph 35(a)).

(2)The ATEC must publish a default mission based compact on the ATEC’s website within 28 days after the compact comes into force. The ATEC must ensure the published compact is kept up-to-date.

Note: The publication of certain information contained in a default mission based compact may be restricted (see section 70).

37Form and terms#

(1)The ATEC must, subject to this section, decide on the form and terms of a default mission based compact.

Terms if mission based compact suspended

(2)If a default mission based compact is in force between the ATEC and a Table A or Table B provider because the provider’s mission based compact under Division 2 of this Part is suspended, the ATEC may consider the terms of the provider’s mission based compact and whether the default mission based compact should contain the same terms.

Terms if previous mission based compact has expired

(3)If a default mission based compact is in force between the ATEC and a provider because the most recent mission based compact entered into by the ATEC and the provider under Division 2 of this Part has expired, the terms of the default mission based compact:

(a)if the ATEC and the provider have agreed on any terms of a new mission based compact as part of their negotiations under paragraph 29(2)(f)—must contain those terms; or

(b)if the ATEC and the provider have not agreed on any terms of a new mission based compact as part of their negotiations under paragraph 29(2)(f)—may include the same terms that were in the most recent mission based compact on the day it expired.

38Assessment of providers against terms#

(1)The ATEC may assess a Table A or Table B provider’s outcomes against the terms of the provider’s default mission based compact at least once per calendar year.

(3)In making an assessment under subsection (1), the ATEC must:

(a)consider the steps taken by the provider to meet the terms of the compact; and

(b)take into account matters affecting the provider’s ability to meet the terms of the compact, including any matter reasonably outside the provider’s control.

(4)The ATEC may publish a report in relation to an assessment on the ATEC’s website.

Note: The publication of certain information contained in a report may be restricted (see section 70).

39Progress meetings#

(1)The ATEC must conduct progress meetings with a Table A or Table B provider if a default mission based compact is in force between the ATEC and the provider.

(2)Meetings under subsection (1) must be conducted every 3 months unless otherwise agreed by the ATEC and the provider.

Part 4 · Higher education stewardship—advice and reports etc.

Division 1 · Introduction

40Simplified outline of this Part#

This Part deals with the advice and recommendations that the ATEC may give to the Minister, the VET Minister, the Ministers for each State and Territory responsible for higher education and the Ministers for each State and Territory responsible for VET.

The advice and recommendations must relate to the higher education system or the tertiary education system.

This Part also deals with the reports and documents that the ATEC must prepare and provide to the Minister and the VET Minister.

The ATEC must prepare a State of the Tertiary Education System report for every calendar year, and a statement of strategic priorities and a work plan every 2 years.

Division 2 · Advice and recommendations

41Advice and recommendations#

Higher education advice and recommendations

(1)The ATEC may give advice and recommendations to the Minister in relation to the following:

(a)policy settings for higher education;

(aa)research and research training;

(b)the costs of teaching and learning in higher education and overall higher education funding amounts, including on a per student basis;

(c)student demand within the higher education system including in relation to different disciplines, student cohorts and geographical regions and the higher education system’s ability to meet that demand;

(d)the adequacy and ability of the higher education system to meet Australia’s current and future skills and knowledge demand, including in relation to particular geographic regions;

(e)the strategic direction, governance, size and diversity of the higher education system and the financial sustainability of higher education providers;

(f)developments within the higher education system, including potential mergers of, changes in the ownership of assets of, and the establishment of, higher education providers;

(g)the delivery of the Minister’s strategic priorities, notified to the ATEC under section 15, by the higher education system;

(h)the improvement of higher education access, participation and outcomes for persons facing systemic barriers to education, including Aboriginal persons and Torres Strait Islanders, persons with disability, persons of a low socioeconomic background and persons living in regional Australia;

(i)methods for improving representation of Aboriginal persons and Torres Strait Islanders in the governance of higher education providers;

(j)higher education data collection and publication;

(k)any other advice in relation to the higher education system.

Note: The ATEC must seek and obtain the agreement of the Minister before publishing any advice or recommendations given under this section (see section 69).

Tertiary education advice and recommendations

(2)The ATEC may give advice and recommendations to the Minister, the VET Minister, the Ministers for each State and Territory responsible for higher education and the Ministers for each State and Territory responsible for VET in relation to the following:

(a)opportunities to improve coordination and collaboration between the higher education system and the VET system;

(b)any tertiary education attainment or participation targets set by the Commonwealth;

(c)any other advice about Commonwealth activities in the tertiary education system.

Note: The ATEC must seek and obtain the agreement of the Minister before publishing any advice or recommendations given under this section (see section 69).

Division 3 · Reports and priorities etc.

42State of the Tertiary Education System report#

(1)The ATEC must prepare a report in relation to the state of the tertiary education system for every calendar year. The first report must relate to the calendar year beginning on 1 January 2026.

(2)A report may include the following:

(a)current and emerging trends and issues in the tertiary education system and commentary in relation to, and proposed changes to the higher education system to address, those trends and issues;

(b)progress towards any tertiary education attainment or participation targets set by the Commonwealth;

(c)progress in improving coordination and collaboration between the higher education system and the VET system;

(ca)the extent to which the higher education system is delivering high quality research and research training;

(d)the extent to which the higher education system is meeting Australia’s current student, skills and knowledge demand and may be able to meet future student, skills and knowledge demand;

(e)the extent to which the higher education system is delivering services in and for regional Australia;

(f)the extent to which the higher education system is promoting long-term innovation and creativity that contributes towards Australia’s skills and workforce development;

(g)the financial sustainability of the higher education system and kinds of higher education providers;

(h)the tertiary education system’s outcomes for persons facing systemic barriers to education, including Aboriginal persons and Torres Strait Islanders, persons with disability, persons of a low socioeconomic background and persons living in regional Australia;

(i)examples of good practice by a tertiary education provider in relation to any of the above matters.

(3)A report must be:

(a)published on the ATEC’s website no later than 12 months after the end of the calendar year in relation to which the report relates; and

(b)provided to the Minister and, if the Minister is not the VET Minister, the VET Minister, at least 4 weeks before the report is published.

Note: The publication of certain information contained in a report may be restricted (see section 70).

(4)The Minister must arrange for a copy of the report as published to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(5)A report is not a legislative instrument.

43Statement of strategic priorities#

(1)The ATEC must prepare a statement, in writing, outlining the ATEC’s strategic priorities for the tertiary education system every 2 years.

(2)The first statement must relate to the 2 year period beginning on 1 January 2027 and ending on 31 December 2028. Subsequent statements must relate to each subsequent 2 year period.

(3)In preparing a statement, the ATEC must:

(a)consult with the following persons or bodies:

(i)the Minister;

(ii)if the Minister is not the VET Minister—the VET Minister;

(iii)if the Minister is not the Research Minister—the Research Minister;

(iv)if the Minister is not the Science Minister—the Science Minister;

(v)the Ministers for each State and Territory responsible for higher education;

(vi)the Ministers for each State and Territory responsible for VET;

(vii)higher education system stakeholder representatives;

(viii)higher education student representatives; and

(b)invite public submissions regarding the content of the proposed statement.

(4)The ATEC may also consult with any other person or body that the ATEC considers appropriate.

(5)The first statement must be published on the ATEC’s website on or before 1 January 2027. Subsequent statements must be published on the ATEC’s website on or before 31 May of the year before the beginning of the period to which the statement relates.

Note: The publication of certain information contained in a statement may be restricted (see section 70).

(6)A statement must be provided to the Minister and, if the Minister is not the VET Minister, the VET Minister, at least 4 weeks before the statement is published on the ATEC’s website under subsection (5).

(7)The Minister must arrange for a copy of the statement as published to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the statement.

(8)A statement is not a legislative instrument.

44Variation of a statement of strategic priorities#

(1)The ATEC may vary a statement prepared under section 43 at any time.

(2)In varying a statement the ATEC must, unless the variation is of a minor nature:

(a)consult with the following persons or bodies:

(i)the Minister;

(ii)if the Minister is not the VET Minister—the VET Minister;

(iii)if the Minister is not the Research Minister—the Research Minister;

(iv)if the Minister is not the Science Minister—the Science Minister;

(v)the Ministers for each State and Territory responsible for higher education;

(vi)the Ministers for each State and Territory responsible for VET;

(vii)higher education system stakeholder representatives;

(viii)higher education student representatives; and

(b)invite public submissions regarding the content of the statement as proposed to be varied.

(3)The ATEC may also consult with any other person or body that the ATEC considers appropriate.

(4)A varied statement must be:

(a)published on the ATEC’s website within 6 weeks after the statement is varied; and

(b)provided to the Minister and the VET Minister at least 4 weeks before the varied statement is published.

Note: The publication of certain information contained in a varied statement may be restricted (see section 70).

(5)The Minister must arrange for a copy of the varied statement as published to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the statement.

(6)A varied statement is not a legislative instrument.

45Work plan#

(1)The ATEC must, in writing, prepare a work plan setting out the ATEC’s priorities and outcomes every 2 years.

(2)The first work plan must relate to the 2 year period beginning on 1 January 2027 and ending on 31 December 2028. Subsequent work plans must relate to each subsequent 2 year period.

(3)In preparing a work plan, the ATEC:

(a)must consult with the following persons:

(i)the Minister;

(ii)if the Minister is not the VET Minister—the VET Minister;

(iii)if the work plan relates to research and the Minister is not the Research Minister—the Research Minister;

(iv)if the work plan relates to research and the Minister is not the Science Minister—the Science Minister;

(v)the Secretary;

(vi)the Ministers for each State and Territory responsible for higher education;

(vii)the Ministers for each State and Territory responsible for VET; and

(b)may invite public submissions regarding the content of the work plan.

(4)A work plan must be published on the ATEC’s website before the earlier of:

(a)6 weeks after the work plan is prepared; and

(b)the beginning of the first calendar year to which the work plan relates.

Note: The publication of certain information contained in a work plan may be restricted (see section 70).

(5)A work plan must be provided to the Minister and, if the Minister is not the VET Minister, the VET Minister, at least 4 weeks before the work plan is published.

(6)A work plan is not a legislative instrument.

46Review and variation of a work plan#

Review

(1)The ATEC must review a work plan prepared under section 45 at least once per calendar year.

Variation

(2)The ATEC may vary a work plan at any time.

(3)In varying the work plan, the ATEC must consult with the following persons:

(a)the Minister;

(b)if the Minister is not the VET Minister—the VET Minister;

(c)the Secretary.

(4)A varied work plan must be:

(a)published on the ATEC’s website within 6 weeks after the work plan is varied; and

(b)provided to the Minister and, if the Minister is not the VET Minister, the VET Minister, at least 4 weeks before the varied work plan is published.

Note: The publication of certain information contained in a varied work plan may be restricted (see section 70).

Part 4A · Allocation of international student places

46ASimplified outline of this Part#

This Part deals with the allocation of international student places to ESOS registered higher education providers.

The Minister may make a determination (called an international allocation pool determination) specifying the number of overseas students that may commence a course of education with ESOS registered higher education providers during a period. The ATEC must then allocate places for those students to one or more ESOS registered higher education providers for the period.

The number of places allocated to a provider is the number of overseas students that may commence a course of education with the provider during the period. The ATEC cannot allocate places for more students than the number specified in the international allocation pool determination.

The ATEC must take into account certain matters when making an allocation to a provider, including the provider’s current and previous performance against the terms of the provider’s mission based compact (if any). Consultation requirements also apply for allocations to providers that are Table A or Table B providers.

An international allocation pool determination may also specify matters that the ATEC must comply with when making an allocation, including the kinds of providers to which an allocation may be made and any other matters the ATEC must take into account.

An allocation may be varied, either on the ATEC’s own initiative or if the Minister directs the ATEC to consider doing so.

46BDetermination of international allocation pool#

(1)The Minister may, by legislative instrument, make a determination (an international allocation pool determination) specifying:

(a)the number of overseas students that may commence courses of education with ESOS registered higher education providers during a specified period; and

(b)matters that the ATEC must comply with in relation to making an allocation for the period.

Note: The Minister may vary an international allocation pool determination (see subsection 33(3) of the Acts Interpretation Act 1901).

(2)The international allocation pool determination may provide that overseas students of a specified class are not to be counted for the purposes of an allocation made to a specified class of ESOS registered higher education providers for the period.

(3)Without limiting paragraph (1)(b), the international allocation pool determination may specify the following matters:

(a)the kind or kinds of ESOS registered higher education providers to which the ATEC may make an allocation;

(b)matters that the ATEC must take into account when making an allocation.

Notice of international allocation pool determination

(4)The Minister must notify the ATEC in writing as soon as practicable after making or varying an international allocation pool determination.

Disallowance

(5)Section 42 (disallowance) of the Legislation Act 2003 does not apply to:

(a)an international allocation pool determination; or

(b)a variation of an international allocation pool determination.

46CAllocation of number of international student places#

(1)If the Minister makes an international allocation pool determination relating to a period, the ATEC must, in writing, allocate a number of international student places to one or more ESOS registered higher education providers for the period.

Note: The ATEC must consult certain providers and consider certain matters before making an allocation (see section 46D).

(2)The ATEC may make the allocation by specifying the number of, or a method for determining the number of, international student places.

(3)The number of international student places allocated under subsection (1) to an ESOS registered higher education provider for a period is the number of overseas students that may commence a course of education with the provider during the period.

(4)If the provider is a Table A or Table B provider, the number of international student places allocated under subsection (1) to the provider is the provider’s international student profile for the period.

Allocations must not exceed international allocation pool

(5)The total number of international student places allocated under subsection (1) for a period must not exceed the number specified under paragraph 46B(1)(a) in the international allocation pool determination relating to that period.

Publication of allocations

(6)The ATEC must publish an allocation on the ATEC’s website within 28 days after the allocation is made.

Note: The publication of certain information contained in an allocation may be restricted (see section 70).

Allocation not a legislative instrument

(7)An allocation is not a legislative instrument.

46DRequirements relating to allocation#

(1)Before making an allocation to an ESOS registered higher education provider that is a Table A or Table B provider, the ATEC must:

(a)consult with the provider; and

(b)give the provider a notice, in writing, of the proposed allocation and invite the provider to respond to the notice within 10 business days from the day the notice is given.

(2)When making an allocation to an ESOS registered higher education provider for a period, the ATEC:

(a)must comply with any matter specified in the international allocation pool determination relating to that period; and

(b)must take into account the following:

(i)any response by the provider to a notice given to the provider under paragraph (1)(b);

(ii)if a mission based compact was in force between the ATEC and the provider at any time prior to the making of the allocation—the provider’s performance against the terms of the compact and whether, and for how long, the compact was suspended;

(iii)whether a default mission based compact is, or has been, in force between the ATEC and the provider;

(iv)if the ATEC previously made an allocation to the provider—the extent to which the provider exceeded, or did not exceed, that allocation; and

(c)may take into account any other matter the ATEC considers relevant.

46EMinister may direct ATEC to consider varying allocation#

(1)At any time before the end of the period to which an allocation relates, the Minister may, by legislative instrument, direct the ATEC to consider varying the allocation.

Note: The ATEC may also vary an allocation without being directed by the Minister (see section 46F).

(2)Without limiting subsection (1), the direction may specify:

(a)matters that the ATEC must take into account when considering whether to vary the allocation; and

(b)matters that the ATEC must comply with if the ATEC varies the allocation as a result of the direction.

46FVariation of allocation#

(1)Subject to subsections (2) and (3), the ATEC may vary an allocation at any time before the end of the period to which the allocation relates.

Varying an allocation if the Minister varies international allocation pool determination

(2)If the Minister varies an international allocation pool determination relating to a period, and the ATEC subsequently varies an allocation for that period, the ATEC must comply with any matter specified in the varied determination when varying the allocation.

Varying an allocation if the Minister directs the ATEC to consider variation

(3)If the Minister directs the ATEC to consider varying an allocation under subsection 46E(1), and the ATEC varies the allocation as a result of the direction, the ATEC must comply with any matter specified in the direction when varying the allocation.

Notice before variation

(4)Before the ATEC varies an allocation made to an ESOS registered higher education provider, the ATEC must give the provider a notice of the proposed variation, in writing, at least 10 business days before the proposed variation is made.

(5)However, the ATEC is not required to give the provider a notice under subsection (4) if any of the following applies:

(a)the provider has waived the requirement in writing;

(b)the provider is no longer an ESOS registered higher education provider;

(c)the variation will increase the number of international student places allocated to the provider;

(d)the variation will be made in the circumstances mentioned in subsection (2) or (3).

(6)In making the variation, the ATEC must take into account any response by the provider to the notice given under subsection (4).

Publication of varied allocations

(7)The ATEC must publish the varied allocation on the ATEC’s website within 28 days after the variation is made.

Note: The publication of certain information contained in a varied allocation may be restricted (see section 70).

Part 5 · Administration

Division 1 · Introduction

47Simplified outline of this Part#

This Part deals with the ATEC’s meeting and decision-making processes.

This Part also deals with administrative matters relating to the offices of the Chief Commissioner, the First Nations Commissioner and the Commissioners. This includes the appointment of an ATEC Commissioner and the terms and conditions on which an ATEC Commissioner holds office.

Division 2 · ATEC meetings and decision-making

48Convening meetings#

(1)The ATEC must hold such meetings as are necessary for the efficient performance of its functions.

(2)The Chief Commissioner:

(a)may convene a meeting at any time; and

(b)must convene a meeting within 30 days after receiving a written request to do so from another ATEC Commissioner or the Minister.

49Presiding at meetings#

(1)The Chief Commissioner must preside at all meetings at which the Chief Commissioner is present.

(2)If the Chief Commissioner will not be present at a meeting, the Chief Commissioner must appoint one of the other ATEC Commissioners to preside at the meeting.

50Quorum#

(1)At a meeting of the ATEC, a quorum is constituted by a majority of the ATEC Commissioners.

(2)However, if:

(a)an ATEC Commissioner is required by rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 not to be present during the deliberations, or to take part in any decision, of the ATEC with respect to a particular matter; and

(b)when the ATEC Commissioner leaves the meeting concerned there is no longer a quorum present;

the remaining ATEC Commissioners at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.

51Voting at meetings#

(1)A question arising at a meeting of the ATEC is to be determined by a majority of the votes of the ATEC Commissioners present and voting.

(2)The person presiding at a meeting of the ATEC has a deliberative vote and, if the votes are equal, a casting vote.

52Conduct of meetings#

The ATEC may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which the ATEC Commissioners may participate in meetings.

53Minutes#

The ATEC must keep minutes of its meetings.

54Decisions without meetings#

(1)The ATEC is taken to have made a decision at a meeting if:

(a)without meeting, a majority of the ATEC Commissioners entitled to vote on the proposed decision indicate agreement with the decision; and

(b)that agreement is indicated in accordance with the method determined by the ATEC under subsection (2); and

(c)all the ATEC Commissioners were informed of the proposed decision, or reasonable efforts were made to inform all the ATEC Commissioners of the proposed decision.

(2)Subsection (1) applies only if the ATEC:

(a)has determined that it may make decisions of that kind without meeting; and

(b)has determined the method by which the ATEC Commissioners are to indicate agreement with proposed decisions.

(3)For the purposes of paragraph (1)(a), an ATEC Commissioner is not entitled to vote on a proposed decision if the ATEC Commissioner would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the ATEC.

(4)The ATEC must keep a record of decisions made in accordance with this section.

55Immunity from civil proceedings#

An ATEC Commissioner is not liable to civil proceedings in relation to an act done, or omitted to be done, in good faith, in the performance or purported performance, or exercise or purported exercise, of the ATEC Commissioner’s functions or powers under this Act.

Division 3 · Appointments

56Appointment of the Chief Commissioner#

Appointment by Minister

(1)The Chief Commissioner is to be appointed by the Minister by written instrument on a full-time basis.

Note: The Chief Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(2)Before the Minister appoints the Chief Commissioner, the Minister may consult with the Ministers for the Commonwealth and each State and Territory responsible for higher education or VET.

Eligibility for appointment

(3)A person is not eligible for appointment as the Chief Commissioner unless the Minister is satisfied that:

(a)the person has an understanding of issues facing the tertiary education system; and

(b)the person has appropriate and substantial qualifications, skills, knowledge and experience; and

(c)the person has appropriate independence from all tertiary education providers; and

(d)the person has professional credibility and significant standing in the higher education system.

Note: The Minister must ensure the ATEC Commissioners have an appropriate balance of knowledge and experience in fields relevant to the ATEC (see section 59).

Period of appointment

(4)The Chief Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

57Appointment of the First Nations Commissioner#

Appointment by Minister

(1)The First Nations Commissioner is to be appointed by the Minister by written instrument on a full-time basis.

Note: The First Nations Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(2)Before the Minister appoints the First Nations Commissioner, the Minister may consult with the Ministers for the Commonwealth and each State and Territory responsible for higher education or VET.

Eligibility for appointment

(3)A person is not eligible for appointment as the First Nations Commissioner unless the Minister is satisfied that:

(a)the person is an Aboriginal person or Torres Strait Islander; and

(b)the person has a significant understanding of issues affecting Aboriginal persons and Torres Strait Islanders; and

(c)the person has appropriate qualifications, skills, knowledge and experience; and

(d)the person has appropriate independence from all tertiary education providers; and

(e)the person has significant standing in the higher education system or VET system.

Note: The Minister must ensure the ATEC Commissioners have an appropriate balance of knowledge and experience in fields relevant to the ATEC (see section 59).

Period of appointment

(4)The First Nations Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

58Appointment of the Commissioners#

Appointment by Minister

(1)A Commissioner is to be appointed by the Minister by written instrument on a part-time basis.

Note: A Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(2)Before the Minister appoints a Commissioner, the Minister may consult with the Ministers for the Commonwealth and each State and Territory responsible for higher education or VET.

Eligibility for appointment

(3)A person is not eligible for appointment as a Commissioner unless the Minister is satisfied that:

(a)the person has appropriate qualifications, skills, knowledge and experience; and

(b)the person has appropriate independence from all tertiary education providers; and

(c)the person has significant standing in the higher education system or VET system.

Note: The Minister must ensure the ATEC Commissioners have an appropriate balance of knowledge and experience in fields relevant to the ATEC (see section 59).

Period of appointment

(4)A Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

59ATEC Commissioners collectively possess certain knowledge and experience#

In exercising a power to appoint an ATEC Commissioner under this Division, the Minister must ensure that:

(a)the ATEC Commissioners collectively possess an appropriate balance of experience and knowledge in each of the following fields:

(i)higher education;

(ii)VET;

(iii)tertiary education governance and administration;

(iiia)research and research training;

(iv)stakeholder consultation and engagement;

(v)regional Australia; and

(b)at least one of the ATEC Commissioners has substantial experience and knowledge in relation to VET.

60Acting appointments#

Chief Commissioner

(1)The Minister may, by written instrument, appoint another ATEC Commissioner to act as the Chief Commissioner:

(a)during a vacancy in the office of the Chief Commissioner (whether or not an appointment has previously been made to the office); or

(b)during any period, or during all periods, when the Chief Commissioner:

(i)is absent from duty or from Australia; or

(ii)is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

(2)However, if another ATEC Commissioner is not available or able to act as the Chief Commissioner, the Minister may, by written instrument, appoint an SES employee of the Department whose services are made available to the ATEC under section 22 to act as the Chief Commissioner instead.

Other ATEC Commissioners

(3)The Minister may, by written instrument, appoint a person to act as the First Nations Commissioner or a Commissioner:

(a)during a vacancy in the office of the First Nations Commissioner or the Commissioner, as the case requires (whether or not an appointment has previously been made to the office); or

(b)during any period, or during all periods, when the First Nations Commissioner or the Commissioner, as the case requires:

(i)is absent from duty or from Australia; or

(ii)is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

(4)However, the Minister must not appoint a person to act as the First Nations Commissioner unless the person is an Aboriginal person or Torres Strait Islander.

Division 4 · Terms and conditions of appointments etc.

61Remuneration#

(1)An ATEC Commissioner 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, the ATEC Commissioner is to be paid the remuneration that is prescribed by the rules.

(2)An ATEC Commissioner is to be paid the allowances that are prescribed by the rules.

(3)This section has effect subject to the Remuneration Tribunal Act 1973.

62Leave of absence#

(1)The Chief Commissioner or First Nations Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2)The Minister may grant the Chief Commissioner or First Nations Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

(3)The Minister may grant a Commissioner leave of absence on such terms and conditions as the Minister considers appropriate.

63Engaging in other paid work#

(1)The Chief Commissioner or First Nations Commissioner must not engage in paid work outside the duties of their office without the Minister’s approval.

(2)A Commissioner must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the Commissioner’s functions.

64Disclosure of interests#

(1)A disclosure by an ATEC Commissioner under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.

(2)Subsection (1) applies in addition to any rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013.

(3)For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, an ATEC Commissioner is taken not to have complied with section 29 of that Act if the ATEC Commissioner does not comply with subsection (1) of this section.

65Other terms and conditions#

An ATEC Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

66Resignation#

(1)An ATEC Commissioner may resign the ATEC Commissioner’s appointment by giving the Minister a written resignation.

(2)The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

67Termination of appointment#

(1)The Minister may terminate the appointment of an ATEC Commissioner:

(a)for misbehaviour; or

(b)if the ATEC Commissioner is unable to perform the duties of the ATEC Commissioner’s office because of physical or mental incapacity.

(2)The Minister may terminate the appointment of an ATEC Commissioner if:

(a)the ATEC Commissioner:

(i)becomes bankrupt; or

(ii)applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii)compounds with the ATEC Commissioner’s creditors; or

(iv)makes an assignment of the ATEC Commissioner’s remuneration for the benefit of the ATEC Commissioner’s creditors; or

(b)the ATEC Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c)the ATEC Commissioner engages, except with the Minister’s approval, in paid work outside the duties of the ATEC Commissioner’s office (see section 63); or

(d)the ATEC Commissioner fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.

(3)The Minister may terminate the appointment of an ATEC Commissioner if the Minister is satisfied that the performance of the ATEC Commissioner has been unsatisfactory for a significant period of time.

Part 6 · Miscellaneous

68Simplified outline of this Part#

This Part contains miscellaneous provisions, such as provisions about Ministerial directions, delegations, reviews of the operation of the Act and the general rule-making power.

This Part requires the ATEC to obtain the Minister’s agreement before publishing any of its advice or recommendations. It also restricts the publication of information or data under this Act if the publication would involve unreasonably disclosing personal information or would be contrary to the public interest.

69Ministerial agreement for publication of advice or recommendations#

Unless another provision of this Act requires the ATEC to publish advice or recommendations, the ATEC must seek and obtain the agreement of the Minister before publishing any advice or recommendations given by the ATEC to any person, including advice or recommendations given under section 41 (advice and recommendations).

70Restrictions on publication of reports etc.#

Despite a requirement or authorisation under this Act to publish reports, decisions or documents, the ATEC must not publish any information or data that:

(a)would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988); or

(b)would be contrary to the public interest, including because the information or data:

(i)could reasonably be expected to prejudice relations between the Commonwealth and the Government of a State or Territory; or

(ii)would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet.

71Minister may give directions to ATEC Commissioners#

(1)The Minister may, by legislative instrument, give written directions to an ATEC Commissioner about the way in which the ATEC Commissioner is to carry out any of the functions of the ATEC Commissioner or the ATEC.

Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).

(2)However, the Minister must not give directions in relation to:

(a)the content of any advice that may be given by the ATEC Commissioner or the ATEC; or

(b)any decision that may be made by the ATEC Commissioner or the ATEC (other than a decision made under Part 4A); or

(c)a higher education provider or a class or classes of higher education providers (other than for the purposes of a function of the ATEC under Part 4A).

(3)If a direction relates to the VET system, before making the direction the Minister must consult with:

(a)if the Minister is not the VET Minister—the VET Minister; and

(b)each State and Territory Minister responsible for VET.

(4)The ATEC Commissioner must comply with a direction under subsection (1).

72Department’s annual report#

The Secretary, when preparing the Department’s annual report under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period, must include information in that report about the performance of the ATEC’s functions during that period.

73Delegation#

(1)An ATEC Commissioner may, in writing, delegate all or any of the ATEC Commissioner’s functions or powers under this Act to:

(a)another ATEC Commissioner; or

(b)an SES employee, or acting SES employee, of the Department whose services are made available to the ATEC under section 22.

Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

(1A)The ATEC may, in writing, delegate all or any of the ATEC’s functions or powers under this Act to:

(a)an ATEC Commissioner; or

(b)an SES employee, or acting SES employee, of the Department whose services are made available to the ATEC under section 22.

(2)The Minister may, in writing, delegate any or all of the Minister’s functions or powers under this Act, other than the power to make rules under section 75, to:

(a)an ATEC Commissioner; or

(b)an SES employee, or an acting SES employee, in the Department.

(3)The Secretary may, in writing, delegate the Secretary’s powers and functions:

(a)under section 23 to an SES employee, or acting SES employee, of the Department whose services are made available to the ATEC under section 22; and

(b)under section 24 to an ATEC Commissioner, an SES employee, or acting SES employee, of the Department whose services are made available to the ATEC under section 22.

(4)In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the ATEC Commissioner, the ATEC, Minister, or Secretary as the case requires.

74Review of operation of Act#

Review after 2 years

(1)Before the end of the period of 2 years after the commencement of this Act, the Minister must cause an independent review of the following matters to be commenced by a person or body:

(a)the role and functions of the ATEC;

(b)the operation of this Act;

(c)the extent to which the objects of this Act have been achieved.

(2)The person or body who undertakes the review under subsection (1) must give the Minister a report of the review.

Review after 5 years

(3)Before the end of the period of 5 years after the commencement of this Act, the Minister must cause an independent review of the following matters to be commenced by a person or body:

(a)the operation of this Act;

(b)the extent to which the objects of this Act have been achieved.

(4)The person or body who undertakes the review under subsection (3) must give the Minister a report of the review.

Tabling of reports

(5)The Minister must arrange for a copy of a report under this section to be tabled in each House of the Parliament within 15 sitting days of that House after the day the Minister receives the report.

75Rules#

(1)The Minister may, by legislative instrument, make rules prescribing matters:

(a)required or permitted by this Act to be prescribed by the rules; or

(b)necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)To avoid doubt, the rules may not do the following:

(a)create an offence or civil penalty;

(b)provide powers of:

(i)arrest or detention; or

(ii)entry, search or seizure;

(c)impose a tax;

(d)set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e)directly amend the text of this Act.

Requirements for certain rules relating to the VET system

(3)The Minister must not make rules for the purposes of paragraph 11(i) (conferring functions on the ATEC), 17(b), 19(e) or 21(b) (conferring functions on the ATEC Commissioners) that relate to the VET system unless:

(a)the functions are intended to improve coordination and collaboration between the higher education system and the VET system; and

(b)if the Minister is not the VET Minister—the VET Minister has agreed to the making of the rules; and

(c)the Minister has consulted the Ministers for each State and Territory responsible for VET in relation to the rules.

Sourced from the Federal Register of Legislation at legislation.gov.au, © Commonwealth of Australia, licensed under CC BY 4.0. Compilations may have been reformatted.