Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698752728759.pdf (New Zealand)
Education (Tertiary Reform) Amendment Act 2002 Public Act Date of assent 2002 No 50 11 December 2002 Contents Title Commencement Purpose Amendments to Part I (Rights to Primary and Secondary Education) of principal Act Interpretation Amendments to Part XIII (Interpretation) of principal Act Heading to Part XIII amended New section 159AAA inserted 159AAA Object of provisions relating to tertiary education Interpretation New sections 159AA to 159AF inserted 159AA Tertiary education strategy 159AB Importance of tertiary education strategy 159AC Statement of tertiary education priorities 159AD Roles within tertiary education sector 159AE Ministry may hold and disseminate information 159AF Secretary may delegate certain powers and functions to Commission Page 6 6 6 7 8 8 8 9 11 11 11 11 12 12 12 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 New Part 13A inserted in principal Act 9 New Part 13A inserted Part13A Tertiary Education Commission Preliminary provisions 159A Purpose of Part 159B Deﬁnition of organisation Establishment of Commission 159C Establishment of Commission 159D Composition of Commission 159E Powers of Commission Functions of Commission Functions of Commission 159F 159G Principles guiding how Commission operates 159H Minister may review performance of Commission 159I Delegation of functions or powers of Minister 159J Minister may direct Commission 159K Application of Commerce Act 1986 Charters 159L What is a charter?
159M Content of charters, and assessment criteria 159N Organisations that must or may have a charter 159O Preparing charters 159P Minister’s approval of charters 159Q Minister’s special powers in relation to charters of institutions 159R Minister may approve interim charters for institutions 159S Amendments to, and review of, charters 159T Expiry of charters 159U Charter may lapse if organisation does not receive funding 159V Charters must be available Proﬁles 159W What is a proﬁle?
159X Content of proﬁles and criteria for approval 159Y Organisations that must have a proﬁle 159Z Proﬁles must be publicly available 2 13 13 13 14 14 14 15 16 16 16 17 18 18 19 19 20 20 21 21 22 22 22 22 23 23 24 24 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Funding by Commission 159ZA Minister must determine design of funding mechanisms 159ZB Approval of proﬁles for funding purposes 159ZC Payment of funding 159ZD Conditions on funding 159ZE Accountability for funding received under section 159ZC 159ZF Commission may suspend funding Amendments to Part XIV (Establishment and disestablishment of institutions) of principal Act Establishment of institutions Disestablishment of institutions Amendments to Part XV (Administration of tertiary institution) of principal Act Incorporation Functions of Councils New section 184A inserted 184A Interim arrangements for charters Heading and sections 184 to 191 repealed New heading and section 191A inserted Proﬁles 191A Each institution to have a proﬁle Heading and section 199 repealed New section 201A inserted 201A How institutions may use income and capital Application of Public Finance Act 1989 Amendments to Part XVI (Courses and students) of principal Act 20 Fees for domestic students Amendments to Part XVIII (Private training establishments) of principal Act New section 232 substituted 232 Courses for foreign students to be quality assured unless exempt Grant or refusal of application New section 236AA inserted 236AA Conditions on registration New section 236C inserted Education (Tertiary Reform) Amendment Act 2002 2002 No 50 25 26 27 28 29 30 31 236C Fees for domestic students must not exceed maximums set in conditions of funding New section 237 substituted 237 Section 238A repealed Cancellation of registration Amendments to Part 18A (Code of practice for providers who enrol international students) of principal Act Heading to Part 18A
 amended Interpretation Signatories to code may enrol persons as international students New sections 238H and 238I substituted 238H Export education levy 238I Purpose and administration of export education levy Money for annual fee to transfer into export education levy account Amendment to Part XIX (Vice­Chancellors Committee) of principal Act 32 Functions of Committee Amendments to Part XX (New Zealand Qualiﬁcations Authority) of principal Act Functions of Authority New section 255A inserted 255A Compliance notices Approval of courses New section 258A inserted 258A Conditions on course approvals Accreditation to provide approved courses New section 259A inserted 259A Conditions on accreditation to provide approved courses Exercise of certain powers of Authority Minister may consent to registered establishments using certain terms in their names Repeal of Part XXI (Skill New Zealand) and Sixteenth Schedule of principal Act Part XXI and Sixteenth Schedule repealed No 50 Education (Tertiary Reform) Amendment Act 2002 Amendments to Part XXVII (Recognition and funding of other services) of principal Act 42 43 44 Interpretation Grants to other education services Recognised bodies to keep accounts Repeal of Part XXIII (Tertiary Research Board) of principal Act 45 Repeal of Part XXIII 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Amendments to Part XXIV (Miscellaneous provisions) of principal Act Offences New Schedule 13A inserted in principal Act New Schedule 13A inserted Transitional provisions Interpretation Absorption of Skill New Zealand into Commission Skill New Zealand absorbed into Commission Final report and accounts Transfers of contracts and leases do not give rise to claims Effect of absorption of Skill New Zealand into Commission Transfer of employees to Commission Transfer of employees of Skill New Zealand Transfer of employees of Ministry Transfer does not
 break continuity of employment Protection of terms and conditions for transferred employees No compensation for technical redundancy Chief executive may be called General Manager Miscellaneous Consequential amendments Consequential amendments Schedule 1 New Schedule 13A inserted in principal Act Schedule 2 Consequential amendments 44 44 45 45 45 47 47 48 48 49 49 50 50 50 50 51 51 52 52 75 5 s 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 The Parliament of New Zealand enacts as follows: Title This Act is the Education (Tertiary Reform) Amendment Act 2002.
In this Act, the Education Act 1989 is called “the principal Act”.

Commencement This Act, other than the sections referred to in subsections (2) to (4), comes into force on 1 January 2003.

Section 21 comes into force on 1 July 2003.

Sections 15, 17, 18, and 26 come into force on 1 January 2004.

Sections 27 to 31 come into force on the day after the date on which this Act receives the Royal assent.
Purpose The purpose of this Act is to amend the Education Act 1989 in order to reshape the tertiary education sector, so as to achieve coherence between different parts of the sector and strategic use of resources, by— (a) establishing a Tertiary Education Commission and in­ corporating Skill New Zealand within it; and extending the requirements for charters, and introduc­ ing proﬁles, to steer the tertiary education sector; and introducing a new approach to funding for the sector to create consistency and strategic use of resources across the sector as a whole; and allowing the New Zealand Qualiﬁcations Authority to set conditions on the registration of private training es­ tablishments, and on course approvals and accredita­ tions, and providing for the enforcement of those con­ ditions; and providing for the imposition of an export education levy; and (b) (c) (d) (e) 1 (1) (2) 2 (1) (2) (3) (4) 3 6 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 4 s 4 (f) making other minor changes to provisions relating to the tertiary education sector and international students.
Amendments to Part I (Rights to Primary and Secondary Education) of principal Act 4 (1) “(b) (2) Interpretation Section 2(1) of the principal Act is amended by repealing para­ graph (b) of the deﬁnition of domestic student, and substitut­ ing the following paragraph: the holder of a residence permit under the Immigration Act 1987 who satisﬁes the criteria (if any) prescribed by regula­ tions made under subsection (4); or.” Section 2 of the principal Act is amended by adding the fol­ lowing subsections: “(4) The Governor­General may, by Order in Council, make regu­ lations prescribing criteria that the holder of a residence permit under the Immigration Act 1987 must satisfy in order to fulﬁl the requirements of paragraph (b) of the deﬁnition of domes­ tic student in subsection (1).
“(5) Regulations made under subsection (4),— “(a) “(b) if made on or before 30 June in any year, expire on the close of 31 December of that year unless they are expressly conﬁrmed by Act of Parliament passed during that year; and if made on or after 1 July in any year, expire on the close of 31 December in the following year unless they are expressly conﬁrmed by Act of Parliament passed before the end of that following year.
“(6) The expiry of regulations made under subsection (4) does not affect the validity of any act done pursuant to, or in accordance 7 Part 5 s 5 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 with, the regulations before the date on which the regulations expire.” 5 6 Amendments to Part XIII (Interpretation) of principal Act Heading to Part XIII amended The principal Act is amended by omitting the heading to Part XIII, and substituting the following heading: “General provi­ sions relating to tertiary education”.
New section 159AAA inserted The principal Act is amended by inserting in Part XIII, before section 159, the following section: “159AAA Object of provisions relating to tertiary education “(1) The object of this Part, Parts 13A to XVIII, and Part XIX (which relate to tertiary education), and of the provisions of Parts 18A and XX to XXIV that relate to tertiary education, is to foster and develop a tertiary education system that— “(a) fosters, in ways that are consistent with the efﬁcient use of national resources, high quality learning and research outcomes, equity of access, and innovation; and contributes to the development of cultural and intellec­ tual life in New Zealand; and responds to the needs of learners, stakeholders, and the nation, in order to foster a skilled and knowledgeable population over time; and contributes to the sustainable economic and social de­ velopment of the nation; and strengthens New Zealand’s knowledge base and en­ hances the contribution of New Zealand’s research capabilities to national economic development, innova­ tion, international competitiveness, and the attainment of social and environmental goals; and provides for a diversity of teaching and research that fosters, the achievement of international standards of learning and, as relevant, scholarship.
throughout the system, “(b) “(c) “(d) “(e) “(f) 8 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 5 s 7 “(2) In making decisions under this Part, Parts 13A to XVIII, and Part XIX, and under the provisions of Parts 18A and XX to XXIV that relate to tertiary education, the Minister, the Com­ mission, the Qualiﬁcations Authority, and the service con­ tinued by Part XXII must take into account the objects spe­ ciﬁed in subsection (1), so far as is practicable in the circum­ stances.” (3) (2) “(b) 7 (1) Interpretation Section 159(1) of the principal Act is amended by omitting the words “Parts XIV to XXIV of this Act, and in the Thirteenth to the Eighteenth Schedules to this Act”, and substituting the words “Part 13A to Part XXIV, and in the Thirteenth to Sev­ enteenth Schedules”.
Section 159(1) of the principal Act is amended by repealing paragraph (b) of the deﬁnition of domestic student, and sub­ stituting the following paragraph: the holder of a residence permit under the Immigration Act 1987 who satisﬁes the criteria (if any) prescribed by regula­ tions made under subsection (4); or.” Section 159(1) of the principal Act is amended by inserting, in their appropriate alphabetical order, the following deﬁnitions: “charter means a document of the kind described in section 159L or, in the case of an institution that has a charter approved under Part XV, a document of the kind described in section 184 “Commission means the Tertiary Education Commission established under section 159C “give public notice means to publish a notice in the Gazette that— gives notice of the fact that something has been made, ap­ “(a) proved, or done; and includes information about how or where the public can see and obtain a copy of the thing that has been made, approved, or done “(b) “industry training organisation means a body corporate for the time being recognised under section 5 or section 8(1) of the Industry Training Act 1992 “proﬁle means a document of the kind described in section 159W 9 Part 5 s 7 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “specialist college means, subject to subsection (3), a body estab­ lished as a specialist college under section 162(2) “statement of tertiary education priorities means the latest state­ ment issued by the Minister under section 159AC “tertiary education provider means all or any of the following, but does not include an industry training organisation “(a) “(b) “(c) “(d) an institution: a registered establishment: a government training establishment: any other person or body that provides, or proposes to provide, tertiary education and that is funded through non­departmental output classes from Vote Education (for example, community education providers) “tertiary education strategy means the latest strategy document ap­ proved under section 159AA.” (4)
 Section 159(1) of the principal Act is amended by inserting in the deﬁnition of institution, after paragraph (b), the following paragraph: “(ba) specialist college; or.” (5) Section 159(1) of the principal Act is amended by repealing the deﬁnition of association.
Section 159(3) of the principal Act is amended by inserting, after the word “polytechnic,”, the words “specialist college,”.

Section 159 of the principal Act is amended by adding the following subsections: (6) (7) “(4) The Governor­General may, by Order in Council, make regu­ lations prescribing criteria that the holder of a residence permit under the Immigration Act 1987 must satisfy in order to fulﬁl the requirements of paragraph (b) of the deﬁnition of domes­ tic student in subsection (1).
“(5) Regulations made under subsection (4),— “(a) “(b) if made on or before 30 June in any year, expire on the close of December of that year unless they are expressly conﬁrmed by Act of Parliament passed during that year; and if made on or after 1 July in any year, expire on the close of 31 December in the following year unless they are 10 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 5 s 8 expressly conﬁrmed by Act of Parliament passed before the end of that following year.
“(6) The expiry of regulations made under subsection (4) does not affect the validity of any act done pursuant to, or in accordance with, the regulations before the date on which the regulations expire.” 8 New sections 159AA to 159AF inserted The principal Act is amended by inserting in Part XIII, after section 159, the following sections: “159AA Tertiary education strategy “(1) The Minister must from time to time approve a tertiary edu­ cation strategy that sets out the Government’s medium­ to long­term strategy for tertiary education.
“(2) The tertiary education strategy must address the following: “(a) “(b) “(c) “(d) the economic context: the social context: the environmental context: the development aspirations of Maori and other popu­ lation groups.

“(3) Before approving a tertiary education strategy, the Minister must consult, either directly or through the Secretary, with those stakeholders in the tertiary education sector that he or she considers ought to be consulted.
“(4) As soon as practicable after approving a tertiary education strategy, the Minister must— “(a) “(b) present a copy of it to the House of Representatives.

give public notice of it; and “159AB Importance of tertiary education strategy In exercising their functions under this Act or any other enact­ ment, the Commission, the Qualiﬁcations Authority, and the service continued by Part XXII must have regard to the ter­ tiary education strategy.
“159AC Statement of tertiary education priorities “(1) The Minister must, at least once in every 3 years, issue a state­ ment of tertiary education priorities that— 11 Part 5 s 8 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(a) “(b) is based on, and is not inconsistent with, the tertiary education strategy; and sets out the Government’s current priorities for tertiary education.
“(2) The Minister must consult with the Commission before issuing or amending a statement of tertiary education priorities.

“(3) The Minister may, at any time after a statement of tertiary edu­ cation priorities has been in force for a year, revoke and re­ place, or amend the statement.

Any amendment forms part of the statement it amends.
“(4) The Minister must— “(a) give public notice of every statement of tertiary educa­ tion priorities and of every amendment to it; and “(b) present a copy of it, and every amendment to it, to the House of Representatives.

“159AD Roles within tertiary education sector “(1) Nothing in this Act affects the fact that the Ministry is the Min­ ister’s principal policy adviser on tertiary education matters.
“(2) The Qualiﬁcations Authority (or, in the case of universities, the New Zealand Vice­Chancellors Committee) is the body primarily responsible for quality assurance matters in the ter­ tiary education sector.

“(3) This section is for the avoidance of doubt.


“159AE Ministry may hold and disseminate information Any information collected and held by the Commission, the Qualiﬁcations Authority, or the service continued by Part XXII may be held by the Ministry on behalf of the relevant agency and be disclosed by the Ministry to— “(a) “(b) the agency on whose behalf it is held; and any other person or agency that is entitled to receive it.
“159AF Secretary may delegate certain powers and functions to Commission “(1) The Secretary may delegate to the Commission any powers or functions of the Secretary under regulations made pursuant 12 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 9 s 9 to section 303 or section 306 or section 307 (which relate to student allowances).
“(2) A delegation under this section— “(a) must be in writing; and “(b) may not include a power to further delegate any power or function; and “(c) may be revoked at any time by notice in writing.

“(3) The Commission may exercise any powers or functions dele­ gated to it under this section in the same manner and with the same effect as if the powers or functions had been conferred on the Commission directly, rather than by delegation.
If the Commission purports to act under a delegation under this section, the Commission is presumed, in the absence of proof to the contrary, to be acting in accordance with the terms of the delegation.” “(4) New Part 13A inserted in principal Act 9 New Part 13A inserted The principal Act is amended by inserting, after Part XIII, the following Part: “Part13A “Tertiary Education Commission “Preliminary provisions “159A Purpose of Part The purpose of this Part is to establish a Tertiary Education Commission and the means by which the Government will exercise leadership of the tertiary education sector to ensure the strategic use of resources.
“159B Deﬁnition of organisation “(1) In this Part, unless the context otherwise requires, organisa­ tion means— “(a) “(b) “(c) a tertiary education provider: an industry training organisation: a person or body that provides tertiary education­related services and is identiﬁed in accordance with subsection (2) as an organisation for the purposes of this Part.
13 Part 9 s 9 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(2) The Minister may, by notice in the Gazette, identify organisa­ tions for the purpose of this Part, and may do so by describing a type of person or body that is an organisation, or by naming individual persons or bodies as organisations.

“Establishment of Commission “159C Establishment of Commission “(1) The Commission is established as a body corporate owned by the Crown.
“(2) The Commission is a Crown entity for the purposes of the Public Finance Act 1989, and is named in the Fourth, Fifth, Sixth, and Seventh Schedules of that Act.

“(3) Schedule 13A applies to the Commission and its members.

“159D Composition of Commission “(1) The Commission comprises at least 6, but not more than 9, members appointed by the Minister after consultation with the Minister of Maori Affairs.
“(2) At least 2 months before appointing a member (other than a replacement member appointed under clause 11(1) of Sched­ ule 13A), the Minister must advertise his or her intention to appoint a member and must seek responses from interested persons.

“(3) Subsection (2) does not apply if the Minister appoints as a member a person who, immediately before the appointment, was a member of the Transition Tertiary Education Commis­ sion.
“159E Powers of Commission “(1) The Commission has— “(a) all the rights, powers, and privileges of a natural person of full age and capacity; and the power to do anything it is authorised to do by or under this Act, any other enactment, or any rule of law.

“(2) The Commission may exercise its powers only for the purpose “(b) of carrying out its functions.
“(3) The Commission may provide goods and services that are con­ sistent with its functions and may, with the approval of the 14 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 9 s 9 Minister, charge a commercial rate for any goods and services provided.
“Functions of Commission “159F Functions of Commission “(1) The functions of the Commission are— “(a) “(b) “(c) “(d) “(e) “(f) “(g) to give effect to the statement of tertiary education pri­ orities through— “(i) negotiating charters with organisations; and “(ii) negotiating and approving proﬁles, or parts of proﬁles, for the purpose of funding; and “(iii) allocating funds to organisations; and “(iv) building the capability of organisations; and to provide advice to the Minister on— “(i) the tertiary education strategy and the statement of tertiary education priorities; and the activities and performance of the sector gen­ erally; and “(ii) “(iii) any policy implications arising from any re­ search, monitoring, or evaluation conducted under paragraph (c); and to conduct applied policy and programme research, monitoring, and evaluation; and to monitor the performance of organisations against their proﬁles for the purpose of assessing overall achievement in relation to the tertiary education strat­ egy and the statement of tertiary education priorities; and to undertake any functions delegated to the Commis­ sion, including (without limitation) functions relating to the funding of organisations other than under section 159ZC; and to undertake any other function given by this Act, the Industry Training Act 1992, the Modern Apprenticeship Training Act 2000, or any other enactment; and to undertake any other function that is necessary or de­ sirable for the purpose of fulﬁlling its other functions under this subsection.
15 Part 9 s 9 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(2) In addition, the Commission may provide information and other tertiary­related services to the Crown, provided that these functions are consistent with the Commission’s state­ ment of intent and are consistent with, and do not displace, any of its functions under subsection (1).
“159G Principles guiding how Commission operates In performing its functions, the Commission must, in addition to complying with section 159AB,— “(a) comply with any written direction of the Minister given under section 159J; and “(b) work closely with the stakeholders of tertiary education providers and industry training organisations; and “(c) work closely with tertiary education providers and in­ dustry training organisations.
“159H Minister may review performance of Commission “(1) The Minister may, by written notice to the Commission, re­ view the performance, or any aspect of the performance, of the Commission.

“(2) Before the Minister undertakes a review under this section, he or she must— “(a) consult with the Commission on the purpose and nature of the review; and consider any submissions made by the Commission on the proposed review.
“(b) “(3) The Minister may appoint any agency to conduct a review under thissection on behalf of the Minister, and in that case clause 16 of Schedule 13A applies to the agency as if it were the Minister.
“159I Delegation of functions or powers of Minister “(1) The Minister may, either generally or speciﬁcally, delegate to the Commission all or any of the Minister’s functions and powers under this Act or any other Act, including— “(a) functions or powers delegated to the Minister under this Act or any other Act; and the Minister’s powers relating to charters.

“(b) 16 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 9 s 9 “(2) A delegation under this section must be in writing.
“(3) No delegation under this section may include the power to delegate under this section.

“(4) The power of the Minister to delegate under this section— “(a) is subject to any prohibitions, restrictions, or conditions contained in any other Act in relation to the delegation of the Minister’s functions or powers; but “(b) does not limit any power of delegation conferred on the Minister by any other Act.
“(5) Subject to any general or special directions given, or condi­ tions imposed, by the Minister, the Commission may exercise any functions or powers delegated to the Commission under this section in the same manner and with the same effect as if they had been conferred on the Commission directly by this section and not by delegation.
If the Commission purports to act under any delegation under this section, the Commission is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.

“(6) “(7) A delegation does not affect or prevent the exercise of any function or power by the Minister, or affect the responsibility of the Minister for the actions of any person acting under the delegation.
“159J Minister may direct Commission “(1) The Minister may, from time to time, give a formal direction under this section to the Commission specifying the policy that the Government wants the Commission to pursue in fulﬁlling its functions, and the Minister may revoke or amend any exist­ ing direction in the same way.

“(2) The Minister may not give a direction unless he or she has ﬁrst notiﬁed the Commission of his or her intention to do so and invited comment from the Commission on the proposal.
“(3) Every direction under this section must be consistent with the tertiary education strategy and the functions of the Commis­ sion.

17 Part 9 s 9 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(4) The Minister may not, under this section, direct the Commis­ sion to provide or deny funding under section 159ZC to any speciﬁed organisation.
“(5) As soon as practicable after giving, amending, or revoking a “(6) direction under subsection (1), the Minister must— “(a) give public notice of the direction, amendment, or revo­ cation; and “(b) present a copy of it to the House of Representatives.

If the Minister gives a direction under this section, the Com­ mission must include in its annual report for every year to which the direction relates— “(a) “(b) a copy of the direction; and a report on how the Commission has responded to it.
“159K Application of Commerce Act 1986 Despite section 6 of the Commerce Act 1986, nothing in that Act applies to the Commission except to the extent that the Commission engages in supplying goods and services for which it charges.

“159L What is a charter?
“Charters An organisation’s charter is a document that— “(a) sets out the organisation’s mission and role in the ter­ tiary education system; and is intended to cover a medium­ to long­term timeframe; and provides the basis for development of the organisation’s proﬁle; and is prepared by the organisation in accordance with the requirements for the contents of charters prescribed by the Minister under section 159M; and is approved by the Minister in accordance with the cri­ teria for assessment of charters identiﬁed by the Minis­ ter under section 159M.
“(b) “(c) “(d) “(e) 18 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 9 s 9 “159M Content of charters, and assessment criteria “(1) The Minister must, in consultation with the Commission, pre­ scribe and give public notice of— “(a) the content of charters, being the matters that charters must address; and the criteria that the Minister will use to assess proposed charters.
“(b) “(2) When prescribing, under subsection (1), the content of char­ ters and assessment criteria for charters, the Minister may pre­ scribe standard contents and criteria, as well as prescribing dif­ ferent contents and different criteria applying to different or­ ganisations, groups of organisations, or types of organisation.

“(3) The criteria for assessment may (without limitation) include criteria that relate to the process used to develop a charter as well as to the content of the charter.
If the Minister requires an organisation, by notice in writing, to consult over its charter with any speciﬁed person or group of persons, that requirement is for all purposes to be treated as assessment criteria that have been prescribed under this sec­ tion.
“(4) “159N Organisations that must or may have a charter “(1) After 1 January 2004, the following must have a charter pre­ pared and approved under this Part: “(a) “(b) all institutions: all other organisations that seek or receive funding from the Commission, unless exempt under subsection (4).
“(2) At any time before 1 January 2004, the Commission may re­ quire, by notice in writing to the organisation, any organisation referred to in subsection (1) to prepare a charter under this Part within a speciﬁed reasonable period, and an organisation that receives such a notice must prepare a charter as required.
“(3) Before 1 January 2004, any organisation that is not required under subsection (2) to have a charter, but that wishes to have one may, with the agreement of the Minister, prepare and seek approval for a charter.
“(4) The Minister may, on the advice of the Commission,— 19 Part 9 s 9 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(a) by notice in writing to an organisation, exempt the or­ ganisation from the requirement to have a charter or from any requirement about the content of charters; and “(b) by notice in the Gazette, exempt any group of organ­ isations or type of organisation from the requirement to have a charter or from any requirement about the con­ tent of charters.
“(5) Subsection 4 does not apply to institutions.

“159O Preparing charters “(1) An organisation that wishes, or is obliged, to have a charter must— “(a) “(d) identify its stakeholders and publish a list of them in at least 1 daily newspaper circulating in each area served by the organisation; and “(b) prepare a proposed charter; and “(c) consult with its stakeholders over the proposed charter; and consult with any other person or group of persons with whom the Minister requires the organisation to consult.
“(2) After completing the consultation required under subsection (1)(c) and (d), the organisation must submit the proposed char­ ter to the Commission for comment and consultation.

“(3) Following consultation with the Commission over, and (if ne­ cessary) modiﬁcation of, the proposed charter, the organisa­ tion must submit the proposed charter to the Commission for approval by the Minister.
“159P Minister’s approval of charters “(1) The Minister must assess a proposed charter against the cri­ teria prescribed under section 159M(1).

“(2) The Minister must approve a proposed charter unless satisﬁed on reasonable grounds that he or she should not do so.

“(3) A charter comes into effect on the date speciﬁed by the Min­ ister.

If the Minister rejects a proposed charter, he or she must give reasons for the rejection.
“(4) 20 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 9 s 9 “(5) An organisation may submit a revised proposed charter to the Minister as many times as is necessary, but only if, before resubmitting it, the organisation has consulted further with the Commission and, if the revisions are signiﬁcant, with the people or groups with whom it is required to consult under section 159O(1)(c) and (d).
“159Q Minister’s special powers in relation to charters of “(1) institutions If the Minister and an institution cannot agree over the content of the institution’s charter, the Minister must, after consulting as he or she thinks appropriate, determine the matter.

“(2) The Minister may, at any time, on his or her own initiative, propose amendments to an institution’s charter or proposed charter.
If the Minister proposes an amendment to a charter or pro­ posed charter, he or she must notify the institution of the pro­ posal and give the institution a reasonable period in which to make submissions in response to it.

“(3) “(4) After considering any submissions made by an institution on the proposal, the Minister may approve the proposed amend­ ment, with or without further amendment, or abandon the pro­ posal.
“(5) Nothing in this section limits the right or ability of an institu­ tion to propose any amendment to its own charter or proposed charter.
“159R Minister may approve interim charters for institutions “(1) In any of the following circumstances, the Minister may, on his or her own initiative, approve an interim charter for an institution: “(a) when an institution is newly established: “(b) when an institution has changed its status: “(c) when an institution has merged with another institution or had another institution incorporated into it: “(d) when an institution’s charter has expired or been re­ voked: 21 Part 9 s 9 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(2) An interim charter approved under subsection (1) remains in force until a new charter is approved under section 159P.
“159S Amendments to, and review of, charters “(1) Sections 159O and 159P apply to an amendment or proposed amendment to a charter (other than an amendment proposed by the Minister under section 159Q) as if the amendment or proposed amendment were a charter or proposed charter.

If the Minister approves an amendment to a charter, the amendment forms part of the charter from the date set by the Minister.
“(2) “(3) The Minister may, at any time, require an organisation to re­ view its charter with a view to amending or replacing it.
“159T Expiry of charters “(1) Every charter must specify the date on which it expires, which must be— “(a) an expiry date as agreed with the Minister, which must be a date no later than 10 years after the date on which the charter comes into effect; or in the case of an industry training organisation, the date on which its recognition under section 5 or section 8(1) of the Industry Training Act 1992 expires.

“(2) Every charter, unless revoked earlier, expires on its expiry “(b) date.
“159U Charter may lapse if organisation does not receive funding The charter of an organisation (other than an institution) lapses if the provider does not receive funding from the Commission for 2 consecutive years.

“159V Charters must be available An organisation that has a charter must ensure that the charter is available for inspection by the public, and that copies may be obtained at no more than a reasonable cost.
22 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 9 s 9 “159W What is a proﬁle?
“Proﬁles An organisation’s proﬁle is a document that— “(a) “(b) is prepared annually; and sets out the organisation’s operating plans, key policies, and proposed activities for the next 3 years; and sets out the organisation’s objectives, and the perform­ ance measures and targets that the organisation will use to measure its performance; and sets out the short­ to medium­term strategic direction of the organisation; and identiﬁes the activities of the organisation for which it seeks or receives funding from the Commission; and sets out the basis on which funding will be sought or received from the Commission; and “(c) “(d) “(e) “(f) “(h) “(g) demonstrates how the organisation will give effect to its charter (unless it is exempt under section 159N(4) from the requirement to have one); and identiﬁes the information that the organisation will sup­ ply on an annual basis to the Commission; and includes section 159X(1)(a), and is in the form prescribed under that section.
prescribed content under “(i) the “159X Content of proﬁles and criteria for approval “(1) The Commission must, at least once every 3 years, prescribe “(c) and give public notice of— “(a) “(b) the content and form of proﬁles; and the criteria on which the Commission will approve pro­ ﬁles, or parts of proﬁles, for funding purposes; and the kinds of background or supplementary information that the Commission may require an organisation to pro­ vide when it submits its proﬁle to the Commission; and the timetable and process for the submission of proﬁles to the Commission.
“(2) Notices given under subsection (1)— “(d) “(a) may prescribe different content and form, criteria, infor­ mation, timetables, and processes for different organ­ 23 Part 9 s 9 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 isations, groups of organisations, or types of organisa­ tion; and “(b) may be given at different times; and “(c) may be amended by the Commission, in which case the Commission must give public notice of the amendment.
“(3) The Commission may permit organisations to prepare com­ bined proﬁles for more than 1 organisation.

“(4) The Commission may waive any requirement (other than a requirement imposed by this Act) as to the content or form of proﬁles, or the timing or process to be used in submitting them.
“159Y Organisations that must have a proﬁle “(1) After 1 January 2004, the following organisations must have a proﬁle: “(a) “(b) all institutions: all other organisations that seek or receive funding from the Commission, unless exempt under subsection (3).

“(2) At any time before 1 January 2004, the Commission may, by notice in writing to an organisation, require the organisation to prepare a proﬁle within a speciﬁed reasonable period; and an organisation that receives such a notice must prepare a proﬁle.
“(3) Despite subsection (1), the Commission may,— “(a) by written notice to an organisation, exempt the organ­ isation for a speciﬁed period from the requirement to have a proﬁle; and “(b) by notice in the Gazette, exempt any group of organisa­ tions, or type of organisation, from the requirement to have a proﬁle.

“(4) Subsection (3) does not apply to institutions.
“159Z Proﬁles must be publicly available An organisation that has a proﬁle must ensure that the proﬁle is available for inspection by the public, and that copies may be obtained at no more than a reasonable cost.

24 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 9 s 9 “Funding by Commission “159ZA Minister must determine design of funding mechanisms “(1) The Minister must, from time to time, determine the design of the mechanisms that the Commission must use to fund organ­ isations.
“(2) Without limiting the generality of subsection (1), when deter­ mining the design of funding mechanisms the Minister— “(a) must identify the general form and essential compo­ nents of each mechanism; and “(b) must indicate which mechanisms relate to funding pro­ vided under section 159ZC, and which (if any) relate to other funding; and “(c) may specify the amount of money, or the proportion of an amount of money, available under any particular mechanism; and “(d) may provide for different versions or modiﬁcations of a mechanism to apply to different groups of organisa­ tions; and “(e) may specify conditions that the Commission must at­ tach to funding provided under any funding mechanism, including conditions setting limits on the fees that an or­ ganisation may charge domestic students; and “(f) may make provision for funding that targets particular student groups.
“(3) However, the Minister may not identify a speciﬁed organisa­ tion or organisations to which funding is to be provided or de­ nied under any mechanism.

“(4) Every mechanism must be consistent with the principle that re­ ceipt by an organisation of public funds is dependent on the or­ ganisation meeting quality assurance requirements under this Act.

“(5) The Commission must develop the details of how to imple­ ment the Minister’s determinations under this section.
“(6) The Minister may not, under subsection (2)(e), specify condi­ tions setting limits on the fees that organisations may charge domestic students until 2 months after the date on which the Minister has published a notice in the Gazette that— 25 Part 9 s 9 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(a) “(b) “(c) “(d) states that the Minister proposes to specify such condi­ tions; and sets out the proposed conditions; and invites submissions on the proposed conditions; and speciﬁes the date by which submissions must be re­ ceived, which must be a date no more than 21 days after the date of the Gazette notice.
“159ZB Approval of proﬁles for funding purposes “(1) An organisation that has a proﬁle may submit it to the Com­ mission for approval for funding purposes.

“(3) “(2) The Commission may, after discussion and, if necessary, ne­ gotiation with the organisation, approve all or any part of the organisation’s proﬁle for funding purposes.

If the Commission does not approve a proﬁle or part of a pro­ ﬁle for funding purposes, it must notify the organisation and give reasons for the non­approval.
If the Commission approves an organisation’s proﬁle, or part of its proﬁle, for funding purposes, the organisation is eligible for funding from the Commission.

“(4) “159ZC Payment of funding “(1) The Commission must determine the amount of funding payable to an organisation that is eligible for funding by ap­ plying the appropriate funding mechanism or mechanisms to the part or parts of the organisation’s proﬁle that are approved for funding purposes.
“(2) The Commission must arrange for payment to the organisation “(3) of the amount of funding determined under subsection (1).

If a funding mechanism provides that funding may be provided under it to an organisation that does not have a proﬁle, the Commission may, in accordance with the funding mechanism, fund an organisation under this section even if it does not have a proﬁle.
“(4) Nothing in this section limits the Commission’s powers, under a delegated authority or any other enactment, to fund organ­ isations other than under this section.
26 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 9 s 9 “159ZD Conditions on funding “(1) It is a condition of payment of funding under section 159ZC that the recipient will supply to the Commission or Ministry, at intervals and in a form speciﬁed by the Commission or Min­ istry, any ﬁnancial, statistical, or other information that the Commission or Ministry requires the organisation to supply.
“(2) The Commission may impose conditions on the use of any funding provided under section 159ZC, but only if the Min­ ister has provided that, under the mechanism under which that funding is provided,— “(a) “(b) any or speciﬁed conditions may be imposed; or speciﬁed conditions must be imposed.

“(3) The Commission may at any time (including during a funding period) amend any condition imposed under subsection (2), but no such amendment takes effect until the organisation has had reasonable notice of it.
“159ZE Accountability for funding received under section 159ZC “(1) An organisation, other than an institution, that receives fund­ ing under section 159ZC must ensure that— “(a) records are kept, in a form not inconsistent with that required by the Commission, for the period to which the funding relates, that fully and fairly show— “(i) the transactions, assets, liabilities, and funds of the organisation that are or were affected by the funding; and “(ii) whether any conditions on which the grant was made have been complied with; and “(b) the records are available for inspection by the Commis­ sion at all reasonable times.
“(2) As soon as practicable after the end of any year in which an organisation, other than an institution, receives funding under section 159ZC, the organisation must provide the Commission with— “(a) a ﬁnancial report of the organisation for that year, in­ cluding a statement of ﬁnancial performance, a state­ ment of ﬁnancial position, a statement of movements in equity, a statement of cash ﬂows, and a statement of ser­ 27 Part 10 s 10 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(b) vice performance that compares the performance of the organisation with the objectives and targets speciﬁed in the organisation’s proﬁle for that year; and any ﬁnancial reports, or statistical or other information, required by the Commission; and any information necessary to demonstrate compliance with any condition attached to any funding.
“(3) The reports required under subsection (2)(a) must be prepared in accordance with generally accepted accounting practice and must be audited by an independent chartered accountant.

“(4) Section 203 sets out the accountability requirements for insti­ “(c) tutions.
“159ZF Commission may suspend funding The Commission may suspend or terminate payment, or any or all further payments, of any funding to an organisation if the Commission is satisﬁed on reasonable grounds that the or­ ganisation— “(a) has not complied, or is not complying, with a condition on which the funding was provided; or in the case of funding provided under section 159ZC, is not providing, or has not provided, adequate and timely information when required to do so by the Commission or Ministry.” “(b) Amendments to Part XIV (Establishment and disestablishment of institutions) of principal Act 10 (1) (2) Establishment of institutions Section 162(2) of the principal Act is amended by inserting, after the words “a polytechnic,”, the words “a specialist col­ lege,”.
Section 162(3) of the principal Act is amended by inserting, after paragraph (a), the following paragraph: “(ab) satisfy himself or herself that the establishment of the institu­ tion is in the interests of the tertiary education system and the nation as a whole; and.” 28 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 12 s 13 (3) (4) Section 162(4) of the principal Act is amended by inserting, after the words “a polytechnic,”, the words “a specialist col­ lege,”.
Section 162(4)(b) of the principal Act is amended by inserting, after subparagraph (ii), the following subparagraph: “(iia) a specialist college is characterised by teaching and (if rele­ vant) research of a specialist nature that maintains, enhances, disseminates, and assists in the application of knowledge and expertise:” 11 Disestablishment of institutions Section 164(3) of the principal Act is amended by inserting, after paragraph (a), the following paragraph: “(ab) is satisﬁed that the disestablishment is in the interests of the tertiary education system and the nation as a whole; and.” Amendments to Part XV (Administration of tertiary institution) of principal Act Incorporation Section 166(1) of the principal Act is amended by inserting, after the word “polytechnic,”, the words “specialist college,”.
Functions of Councils Section 180 of the principal Act is amended by omitting para­ graphs (b) to (e), and substituting the following paragraphs: to prepare, negotiate, and adopt a charter for the institution: to adopt a proﬁle for the institution: to ensure that the institution is managed in accordance with its charter and its proﬁle: to determine the policies of the institution in relation to the implementation of its charter, the carrying out of its proﬁle, and, subject to the State Sector Act 1988, the management of its affairs.” Section 180 of the principal Act is amended by adding, as sub­ section (2), the following subsection: If, at any time before 1 January 2004, an institution does not have a proﬁle, the references in subsection (1) to a proﬁle must 12 13 (1) “(b) “(c) “(d) “(e) (2) “(2) 29 Part 12 s 14 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 be taken to refer instead to the statement of objectives required under section 41 of the Public Finance Act 1989.” 14 New section 184A inserted The principal Act is amended by inserting, after section 184, the following section: “184A Interim arrangements for charters “(1) Sections 159L to 159V (which are about charters made under Part 13A) do not apply to institutions that have charters ap­ proved under this Part, or to charters prepared or approved under this Part.
“(2) Despite subsection (1), the Commission may exercise its power under section 159N(2) with respect to an institution by requiring the institution to prepare a charter under Part 13A and, in that case, the institution must prepare a charter under that Part as required by the Commission.

“(3) The charter of an institution that is approved under this Part is revoked on the earlier of— “(a) the date on which a charter for the institution approved under Part 13A comes into force; or “(b) 1 January 2004.
“(4) The Secretary may delegate to the Commission, and the Com­ mission may exercise, any of the Secretary’s functions and powers under this Part that relate to institutions’ charters.” 15 16 Heading and sections 184 to 191 repealed The heading above section 184 and sections 184 to 191 of the principal Act are repealed.
New heading and section 191A inserted The principal Act is amended by inserting, after section 191, the following heading and section: “Proﬁles “191A Each institution to have a proﬁle “(1) The Council of every institution must, before the start of an academic year, adopt a proﬁle for that academic year.

“(2) Subsection (1) does not apply to the 2003 academic year.
30 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 12 s 19 “(3) When an institution adopts a proﬁle, it must immediately for­ ward a copy to the Commission.” 17 (1) (2) 18 Heading and section 199 repealed The principal Act is amended by repealing section 199 and the heading before it.

Section 228(2A) of the principal Act is consequentially amended by omitting the words “section 199 of this Act”, and substituting the expression “section 159ZC”.
New section 201A inserted The principal Act is amended by inserting, after section 201, the following section: “201A How institutions may use income and capital “(1) An institution may, subject to the provisions of any enactment and the terms of any trust or endowment,— “(a) apply its income and capital in doing whatever the Council of the institution thinks will accomplish the goals and purposes set out in the institution’s charter; and create, maintain, or add to, out of income, a fund or funds for any 1 or more of the purposes for which the income may be applied.
“(b) “(2) Subsection (1)(b) does not limit the generality of subsection (1)(a).” 19 (1) Application of Public Finance Act 1989 Section 203 of the principal Act is amended by repealing sub­ section (2), and substituting the following subsections: “(2) Section 41 of the Public Finance Act 1989 applies to every institution, but every reference in that section to a ﬁnancial year must be read as a reference to an academic year.
“(3) Every institution must include in the ﬁnancial statements re­ quired under section 41 of the Public Finance Act 1989 a state­ ment of service performance reporting on the performance of the institution as compared with the institution’s objectives and performance measures and targets speciﬁed in the insti­ tution’s proﬁle for that year.” 31 Part 20 s 20 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 (2) Despite subsection (1), section 203(2) of the principal Act, as it read immediately before 1 January 2003, continues to apply after that date to every institution that does not have a proﬁle.
Amendments to Part XVI (Courses and students) of principal Act 20 Fees for domestic students Section 227 of the principal Act is amended by inserting, after subsection (1), the following subsection: “(1A) The Council of an institution that receives funding under sec­ tion 159ZC must not ﬁx, in relation to domestic students, a fee (or a fee of a particular kind) that exceeds any maximum spe­ ciﬁed in a condition imposed under section 159ZD(2) as being the maximum fee (or fee of that kind) that can be charged to a domestic student.” Amendments to Part XVIII (Private training establishments) of principal Act 21 New section 232 substituted The principal Act is amended by repealing section 232, and substituting the following section: “232 Courses for foreign students to be quality assured unless exempt “(1) A person must not permit a foreign student to begin to under­ take a course of study or training at a private training estab­ lishment unless— “(a) the course is an approved course and the establishment is accredited to provide it; or the course is of less than 3 months’ duration and is an exempt course, as provided for in subsection (2).
“(b) “(2) The Qualiﬁcations Authority may, by notice in the Gazette, exempt courses of study or training for the purpose of subsec­ tion (1)(b).
“(3) A notice under subsection (2)— “(a) may exempt only courses of study or training that are, or are likely to be, of less than 3 months’ duration; and 32 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 21 s 22 “(b) may identify courses, or classes of courses, that are ex­ empt; and “(c) may identify courses by reference to a provider, or a class of provider, that offers them; and “(d) may be in respect of courses that have been completed, “(e) are in progress, or have not yet started; and is a regulation for the purposes of the Regulations (Disallowance) Act 1989 but not a regulation for the purposes of the Acts and Regulations Publications Act 1989.
“(4) For the purposes of this section and section 236(1), a course of study or training is of less than 3 months’ duration if the period starting on the day on which the course starts, and ending on the day on which it ends (or is likely to end) is less than 3 calendar months, irrespective of the number of days during that period on which study or training is, or is proposed to be, provided.” 22 (1) (2) (3) (4) (5) Grant or refusal of application Section 236(1) of the principal Act is amended by omitting all the words before paragraph (a), and substituting the words “The Qualiﬁcations Authority must grant an application for registration of a private training establishment, and may only grant such an application, if it is satisﬁed that—”.
Section 236(1) of the principal Act is amended by— (a) omitting from paragraph (e) the word “education,—”, and substituting the word “education.”; and omitting all the words after paragraph (e).

(b) Section 236(1)(b) of the principal Act is amended by inserting, after the word “has”, the words “, or will at the relevant time have,”.

Section 236(1)(d)(ii) of the principal Act is amended by in­ serting, after the words “study or training”, the words “(other than a course of less than 3 months’ duration)”.
Section 236(1)(d) of the principal Act is amended by adding the following subparagraph: “(iv) allows, or will allow, every foreign student enrolled for a course of study or training that is of less than 3 months’ 33 Part 21 s 23 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 duration to withdraw from it within a period (being less than 7 days) speciﬁed by the Authority, and refunds, or will refund, to any student who so withdraws a minimum amount or pro­ portion, speciﬁed by the Authority, of any payments made by the student to the establishment in respect of the course; and” Section 236 of the principal Act is amended by adding the following subsection: (6) “(4) The Authority must give written notice to a private training es­ tablishment when it grants or refuses to grant registration and, if it refuses registration, it must give reasons for the refusal.” 23 New section 236AA inserted The principal Act is amended by inserting, after section 236, the following section: “236AA Conditions on registration “(1) It is a condition of registration that the establishment will at all times comply with the relevant policies and criteria established by the Qualiﬁcations Authority under section 253(1)(ca) that are currently in force, except to the extent that the Authority exempts the establishment, by a condition on its registration, from compliance.
“(2) When granting registration to an establishment, the Qualiﬁca­ tions Authority may impose conditions on the registration that are speciﬁc to that establishment.

“(3) The Qualiﬁcations Authority may at any time, with the agree­ ment of a registered establishment, impose new conditions on its registration, and may amend or revoke any existing condi­ tions.
“(4) The Qualiﬁcations Authority may, without the agreement of a registered establishment, impose conditions on its registration, or amend or revoke any existing conditions, but only if the Authority has ﬁrst— “(a) given written notice to the establishment of its inten­ tions; and “(b) given the establishment a reasonable opportunity to re­ “(c) spond to the notice; and considered any submissions made by the establishment in response to the notice.
34 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 21 s 25 “(5) When conditions are imposed, amended, or revoked, the Qualiﬁcations Authority must give notice in writing to the registered establishment of the new, amended, or revoked conditions.” 24 New section 236C inserted The principal Act is amended by inserting, after section 236B, the following section: “236C Fees for domestic students must not exceed maximums set in conditions of funding A registered private training establishment that receives fund­ ing under section 159ZC must not ﬁx, in relation to domes­ tic students, a fee (or a fee of a particular kind) that exceeds any maximum speciﬁed in a condition imposed under section 159ZD(2) as being the maximum fee (or fee of that kind) that can be charged to a domestic student.” 25 (1) New section 237 substituted The principal Act is amended by repealing section 237, and substituting the following section: “237 Cancellation of registration “(1) The Authority may cancel the registration of a registered es­ tablishment if it is satisﬁed on reasonable grounds that— “(a) the establishment no longer meets 1 or more of the re­ quirements set out in section 236(1); or the establishment is not complying, or has not complied, with 1 or more of the conditions applying to it.
“(2) Before cancelling a registration, the Authority must— “(b) “(a) notify the establishment that it is considering cancelling registration, and give reasons; and “(b) give the establishment a reasonable opportunity to re­ “(c) spond to the notice; and consider any submissions made by the establishment in response to the notice.

“(3) If the Authority cancels a registration, it must give notice of its decision to both the establishment and the Commission, with reasons.
35 Part 21 s 26 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(4) Nothing in this section limits the Authority’s powers under (2) 26 27 28 29 section 255A(7) to cancel an establishment’s registration.” Section 238 of the principal Act is consequentially repealed.

Section 238A repealed Section 238A of the principal Act is repealed.
Amendments to Part 18A (Code of practice for providers who enrol international students) of principal Act Heading to Part 18A amended The principal Act is amended by omitting from the heading to Part 18A the words “Code of practice for providers who enrol international”, and substituting the word “International”.

Interpretation Section 238D of the principal Act is amended by repealing paragraph (a) of the deﬁnition of international student.
Signatories to code may enrol persons as international students Section 238E of the principal Act is amended by adding the following subsection: “(4) Until 1 July 2003, nothing in subsection (1) or subsection (2) applies to providers who enrol international students only on courses of less than 3 months’ duration (as that term is deﬁned in section 232(4)).” 30 New sections 238H and 238I substituted The principal Act is amended by repealing section 238H, and substituting the following sections: “238H Export education levy “(1) The Governor­General may, by Order in Council, in accord­ ance with a recommendation of the Minister, make regulations imposing an export education levy on providers who receive tuition fees from international students enrolled with them.
36 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 27 s 30 “(2) Without limiting subsection (1), regulations made under this section must— “(a) “(c) prescribe the amount, a method or methods for calcu­ lating the amount, or both, of export education levy payable by individual providers, and may prescribe dif­ ferent amounts, or different methods of calculating the amounts, payable by different classes of provider; and “(b) prescribe when the levy, or any part of the levy, is payable, and the period to which it, or any part of it, relates; and designate the agency that will administer the levy and, if that agency is the Ministry, the regulations may au­ thorise the Ministry to delegate all or speciﬁed aspects of the levy’s collection and use to another body; and require that a provider supplies, on request by the agency responsible for the administration of the levy, information on student numbers or any other matter that is necessary to determine or verify the amount of levy payable by the provider; and otherwise provide for the collection and use of the levy in accordance with this section and section 238I.
“(d) “(e) “(3) The Minister must consult with providers before recommend­ ing that regulations be made under subsection (1) that pre­ scribe or amend an export education levy.

“(4) No regulations may be made under this section that impose a levy in respect of tuition fees received in respect of any period before 1 January 2003.
“238I Purpose and administration of export education levy “(1) The purposes to which the funds of the levy may be put are as follows: “(a) the development, promotion, and quality assurance of the export education sector, which may include (without limitation)— “(i) “(ii) marketing; and “(iii) implementation of scholarship schemes; and “(iv) professional and institutional development; and research, and resource development; and 37 Part 27 s 31 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(v) support (ﬁnancial or otherwise) of other bodies engaged in the development, promotion, or qual­ ity assurance of the export education sector: “(b) “(c) the administration and audit of the code: the general administration of the levy and associated purposes.
“(2) The funds of the levy must be kept in a separate bank account that is used only for the purposes of the levy.

“(3) As soon as practicable after 1 July in each year, the agency responsible for the administration of the levy must present to the Minister an annual report on the administration of the levy, which must include audited ﬁnancial statements prepared in accordance with generally accepted accounting practice; and the Minister must present a copy of the report to the House of Representatives.
“(4) The amount of levy payable by a provider under regulations made under this section is a debt due to the Crown and may be recovered in any court of competent jurisdiction.
“(5) No later than 1 March 2006, the Minister must— “(a) undertake, in consultation with providers, a review of the operation, administration, and effectiveness of the export education levy; and “(b) prepare a report on the ﬁndings of the review; and “(c) present a copy of the report to the House of Represen­ tatives.” 31 Money for annual fee to transfer into export education levy account The money held for the purpose of the annual fee for the ad­ ministration of the code in the trust account established under section 238H of the principal Act (as it was immediately be­ fore the commencement of section 30 of this Act) must be transferred to the export education account referred to in sec­ 38 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 33 s 34 tion 238I(2) of the principal Act as soon as practicable after the establishment of that account.
Amendment to Part XIX (Vice­Chancellors Committee) of principal Act 32 Functions of Committee Section 241(b) of the principal Act is amended by omitting the words “sections 258 and 259 of this Act”, and substituting the words “sections 255A, 258, 258A, 259, and 259A”.
Amendments to Part XX (New Zealand Qualiﬁcations Authority) of principal Act 33 (1) Functions of Authority Section 253(1) of the principal Act is amended by inserting, after paragraph (c), the following paragraph: “(ca) subject to subsection (2), to establish policies and criteria for (2) (3) the registration of private training establishments:.” Section 253(2) of the principal Act is amended by omitting the words “paragraph (d) or paragraph (e) of subsection (1) of this section”, and substituting the words “subsection (1)(ca), (d), or (e)”.
Section 253(3) of the principal Act is amended by omitting the words “paragraph (d) or paragraph (e) of subsection (1) of this section”, and substituting the words “subsection (1)(ca), (d), and (e)”.

34 New section 255A inserted The principal Act is amended by inserting, after section 255, the following section: “255A Compliance notices “(1) In this section, institution includes institutions, government training establishments, registered establishments, secondary schools, and other bodies.
“(2) The Authority may issue a compliance notice to an institution requiring the institution to do, or refrain from doing, a particu­ lar thing in relation to the institution’s registration (in the case 39 Part 33 s 34 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 of an institution that is a registered establishment) or to the in­ stitution’s course approvals or accreditations.
“(3) Every compliance notice must be in writing and must— “(a) “(b) “(c) give the date on which it is issued; and specify a time on or before which, or a period within which, the institution must comply with the notice; and state the consequences or possible consequences of non­compliance with the notice.

“(4) The Authority may publish any compliance notice, or a sum­ mary of a compliance notice, in a manner designed to give public notice of the compliance notice.
“(5) An institution that receives a compliance notice must comply with it within the time or during the period speciﬁed in the notice.

“(6) The Authority may, before the expiry of the time or period referred to in subsection (3)(b), extend that time or period, in which case the extended time or period is for all purposes the time or period within or during which the notice must be complied with.
If the institution does not comply with the compliance notice, the Authority may immediately,— “(a) “(7) if the notice was issued to a registered establishment and related to a registration matter, cancel the registration of the establishment, or impose new, or amend or revoke any existing, conditions on the establishment’s registra­ tion; or if the notice related to a course approval, withdraw any course approvals held by the institution, or impose new, or amend or revoke any existing, conditions on any course approval held by the institution; or if the notice related to an accreditation, withdraw any accreditations held by the institution, or impose new, or amend or revoke any existing, conditions on any ac­ creditation.
“(b) “(c) “(8) The Authority may not do any of the things speciﬁed in sub­ section (7) until the later of— “(a) 10 days from the date of issue of the notice; and 40 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 33 s 36 “(b) the expiry of the time or period referred to in subsection (3)(b).” 35 (1) Approval of courses Section 258 of the principal Act is amended by inserting, after subsection (9), the following subsections: “(9A) If the Authority withdraws an approval under this section, it must give notice of the withdrawal, with reasons, to the insti­ tution concerned.
“(9B) Nothing in this section limits the Authority’s power to with­ (2) 36 draw an approval under section 255A(7).” Section 258(10) of the principal Act is amended by adding the words “, and may impose conditions on any such grant”.
New section 258A inserted The principal Act is amended by inserting, after section 258, the following section: “258A Conditions on course approvals “(1) Every course approval is subject to the condition that the in­ stitution will at all times comply with the relevant policies and criteria established by the Authority under section 253(1)(d) that are currently in force, except to the extent that the Au­ thority exempts the institution, by a condition on the approval, from compliance.
“(2) When approving a course, the Authority may impose condi­ tions on the approval that are speciﬁc to the approval for that particular course.

“(3) The Authority may at any time, with the agreement of the insti­ tution that holds the course approval, impose new conditions on the approval and may amend or revoke any existing condi­ tions.
“(4) The Authority may, without the agreement of the institution, impose conditions on a course approval, or amend or revoke any existing conditions, but only if the Authority has ﬁrst— “(a) given written notice to the institution of its intentions; and “(b) given the institution a reasonable opportunity to re­ spond to the notice; and 41 Part 33 s 37 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(c) considered any submissions made by the institution in response to the notice.
“(5) When conditions are imposed, amended, or revoked, the Au­ thority must give notice in writing to the institution that holds the approval of the new, amended, or revoked conditions.” 37 “(7) Accreditation to provide approved courses Section 259 of the principal Act is amended by adding the following subsections: If the Authority withdraws an accreditation under this section, it must give notice of the withdrawal, with reasons, to the in­ stitution concerned.
“(8) Nothing in this section limits the Authority’s power to with­ draw an accreditation under section 255A(7).” 38 New section 259A inserted The principal Act is amended by inserting, after section 259, the following section: “259A Conditions on accreditation to provide approved courses “(1) Every accreditation is subject to the condition that the insti­ tution will at all times comply with the relevant policies and criteria established by the Authority under section 253(1)(e) that are currently in force, except to the extent that the Author­ ity exempts the institution, by a condition on the accreditation, from compliance.
“(2) When granting accreditation to an institution to provide an ap­ proved course of study or training, the Authority may impose conditions on the accreditation that are speciﬁc to the accredit­ ation.

“(3) The Authority may at any time, with the agreement of the ac­ credited institution, impose new conditions on the accredit­ ation and may amend or revoke any existing conditions.
“(4) The Authority may, without the agreement of the institution, impose conditions on an accreditation, or amend or revoke any existing conditions, but only if the Authority has ﬁrst— “(a) given written notice to the institution of its intentions; and 42 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 33 s 40 “(b) given the institution a reasonable opportunity to re­ “(c) spond to the notice; and considered any submissions made by the institution in response to the notice.
“(5) When conditions are imposed, amended, or revoked, the Au­ thority must give notice in writing to the accredited institution of the new, amended, or revoked conditions.” 39 Exercise of certain powers of Authority Section 260 of the principal Act is amended by omitting from subsections (1) and (2) the words “sections 258 and 259 of this Act” wherever they appear, and substituting in each case the words “sections 255A, 258, 258A, 259, and 259A”.
40 Minister may consent to registered establishments using (1) certain terms in their names Section 264A(2) of the principal Act is amended by inserting, after paragraph (b), the following paragraph: “(ba) be satisﬁed that consenting to the application is in the interests of the tertiary education system and the nation as a whole; and.” Section 264A of the principal Act is amended by adding the following subsections: (2) “(4) The Minister may audit any registered establishment that has been given consent to use one of the terms in subsection (1) for continuous compliance with the requirements for consent to use the term.
If the Minister is not satisﬁed that a registered establishment is continuing to comply with the requirements for consent to use the term for which consent has been given, the Minister may— “(a) withdraw the consent; or “(5) 43 Part 41 s 41 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(b) suspend the consent for a speciﬁed period, at the expiry of which the Minster must either lift the suspension or withdraw the consent.” Repeal of Part XXI (Skill New Zealand) and Sixteenth Schedule of principal Act 41 Part XXI and Sixteenth Schedule repealed Part XXI and the Sixteenth Schedule of the principal Act are repealed.
Amendments to Part XXVII (Recognition and funding of other services) of principal Act 42 Interpretation Section 320 of the principal Act is amended by inserting, be­ fore the deﬁnition of ﬁnancial year, the following deﬁnition: “educational body, or body, means a body corporate that is recog­ nised by the Minister as a body that provides any educational or de­ velopmental service or facility, including an organisation as deﬁned in section 159B.” 43 (1) (2) Grants to other education services The heading to section 321 of the principal Act is amended by omitting the words “other education services”, and substitut­ ing the words “educational bodies”.
Section 321 of the principal Act is amended by repealing sub­ sections (1) and (2), and substituting the following subsec­ tions: “(1) An educational body may be paid grants out of public money appropriated by Parliament for the purpose on such conditions as the Minister thinks ﬁt.
“(2) However, a grant may not be paid under this section to a ter­ tiary education provider or an industry training organisation (as those terms are deﬁned in section 159) unless the Minister is satisﬁed that payment under this section is in the national interest.” 44 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 46 s 46 44 (1) Recognised bodies to keep accounts The heading to section 322 of the principal Act is amended by omitting the word “Recognised”, and substituting the word “Educational”.
Section 322 of the principal Act is amended by repealing sub­ sections (2) to (4), and substituting the following subsection: “(2) Every grant under section 321 to an educational body must be (2) paid under a funding agreement that speciﬁes— “(a) “(b) “(c) the purpose of the grant; and any conditions attaching to it; and the reporting obligations of the recipient.” Repeal of Part XXIII (Tertiary Research Board) of principal Act 45 (1) (2) Repeal of Part XXIII The principal Act is amended by repealing Part XXIII (Tertiary Research Board).
The principal Act is consequentially amended by— (a) (b) (c) repealing section 202(b): repealing section 297(11): repealing the Eighteenth Schedule.
Amendments to Part XXIV (Miscellaneous provisions) of principal Act 46 (1) Offences Section 292 of the principal Act is amended by repealing sub­ sections (4) and (5), and substituting the following subsec­ tions: “(4) A person must not— “(a) use the term university to describe an educational es­ tablishment or facility unless the educational establish­ ment and facility— “(i) “(ii) is a university; or is a registered establishment that has the Minis­ ter’s permission under section 264A to use the term; or 45 Part 46 s 46 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 “(iii) was a university but, despite being incorporated under section 164(4) into another institution, re­ tains the characteristics of a university as set out in section 162(4)(a) and (b)(iii): “(b) use the term college of education to describe an edu­ cational establishment or facility unless the educational establishment or facility— “(i) “(ii) is a college of education; or is a registered establishment and the Minister has consented under section 264A to the establish­ ment using the term; or “(c) “(iii) was a college of education but, despite being in­ corporated under section 164(4) into another in­ stitution, retains the characteristics of a college of education as set out in section 162(4)(b)(i): use the term polytechnic to describe an educational es­ tablishment or facility unless the educational establish­ ment or facility— “(i) “(ii) is a polytechnic or institute of technology; or is a registered establishment that has the Minis­ ter’s permission under section 264A to use the term; or “(iii) was a polytechnic or institute of technology but, despite being incorporated under section 164(4) into another institution, retains the char­ acteristics of a polytechnic as set out in section 162(4)(b)(ii): “(d) use the term institute of technology to describe an edu­ cational establishment or facility unless the educational establishment or facility— “(i) “(ii) is an institute of technology or a polytechnic; or is a registered
 establishment that has the Minis­ ter’s permission under section 264A to use the term; or “(iii) was an institute of technology or a polytechnic but, despite being incorporated under section 164(4) into another institution, retains the char­ acteristics of a polytechnic as set out in section 162(4)(b)(ii).
46 (2) 47 48 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 48 s 48 “(5) A person (other than a university) must not grant or purport to grant an award that is described as a ‘degree’, or the de­ scription of which includes the word ‘bachelor’, ‘master’, or ‘doctor’, unless— “(a) the person has the consent of the Qualiﬁcations Author­ ity or body subject to a delegation under section 254(5); or as provided by section 192(11).” “(b) Section 292(8) of the principal Act is amended by omitting the words “subsection (4) or subsection (6) of this section”, and substituting the words “any of subsections (4), (5), or (6)”.
New Schedule 13A inserted in principal Act New Schedule 13A inserted The principal Act is amended by inserting, after Schedule 13, the Schedule 13A set out in Schedule 1 of this Act.
Transitional provisions Interpretation In sections 49 to 57, unless the context otherwise requires,— assets has the same meaning as in section 216(1) of the Education Act 1989 Commission means the Tertiary Education Commission es­ tablished under section 159C of the Education Act 1989 (as inserted by section 9 of this Act) liabilities has the same meaning as in section 216(1) of the Education Act 1989 Ministry means the Ministry of Education Skill New Zealand means the agency that was continued by section 270 of the Education Act 1989 as in force immediately before the commencement of this section 47 Part 49 s 49 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 transferred employee means an employee of Skill New Zealand or of the Ministry who transfers to the Commission.
Absorption of Skill New Zealand into Commission Skill New Zealand absorbed into Commission 49 (1) On the date of commencement of this section, Skill New Zealand ceases to exist and— (a) the term of ofﬁce of every member of the Board of Skill New Zealand expires; and all assets and liabilities of Skill New Zealand vest in the Commission.

(b) (2) No member of the Board of Skill New Zealand is entitled to compensation as a result of the expiry under this section of his or her term of ofﬁce.
(3) On and from the date of commencement of this section, every reference to Skill New Zealand in any enactment (other than this Act), or in any instrument, register, agreement, deed, lease, application, notice, or other document in force at the effective date, must, unless the context otherwise requires, be read as a reference to the Commission.
Final report and accounts 50 (1) As soon as reasonably practicable after the commencement of this section, the Commission must arrange for the ﬁnal report of Skill New Zealand to be delivered to the Minister.
The report must— (a) (2) (b) describe Skill New Zealand’s operations for the period beginning on 1 July 2002 and ending immediately be­ fore the commencement of this section; and include— (i) ﬁnancial statements of Skill New Zealand pre­ pared, in accordance with Part V of the Public Finance Act 1989, for that period; and an audit report prepared by the Auditor­General.

The Minister must present a copy of the report to the House of Representatives under section 44A of the Public Finance Act 1989.
(ii) (3) 48 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 49 s 52 Transfers of contracts and leases do not give rise to claims 51 (1) No person has any claim against the Crown for breach of any contract merely because the administration of the contract or the beneﬁt of the contract is vested in the Commission by sec­ tion 49.
Subsection (1) applies whether or not the vesting involves the Commission and its employees gaining access to any infor­ mation, data, programme, intellectual property right, know­ how, chattel, equipment, transmission device, or facility of the claimant or any other person.
(2) 52 Effect of absorption of Skill New Zealand into Commission (1) On and from the date of commencement of this Act, anything done or omitted to be done by, or in relation to, Skill New Zealand must be treated as having been done or omitted by, or in relation to, the Commission.
The disestablishment of Skill New Zealand and the transfer of its undertaking and functions to the Commission does not affect— (a) (2) the assets, liabilities, or rights of the Crown or Skill New Zealand (other than by transferring them); or the commencement or continuation of proceedings by or against Skill New Zealand; those proceedings may instead be commenced or continued by or against the Commission.
(b) (3) If the transfer of an asset or liability under section 49 is regis­ trable, the person responsible for keeping the register must register the transfer immediately after written notice of the transfer is received by him or her from any person authorised for this purpose by the Minister.

49 Part 53 s 53 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 (4) Subsection (2) does not limit section 49, section 51, or sections 53 to 57.
Transfer of employees to Commission Transfer of employees of Skill New Zealand Every person who is employed by Skill New Zealand imme­ diately before the commencement of this Act transfers to the Commission on that date of commencement.

The transfer of an employee by this section is subject to any relevant transfer provisions in the employment agreement or contract applying to that employee.

Subsection (2) is subject to section 57.


Transfer of employees of Ministry Employees of the Ministry may be transferred to the Commis­ sion under section 61A of the State Sector Act 1988 as if their duties were no longer to be carried out by the Ministry and the Commission were a Department.
Transfer does not break continuity of employment For the purpose of any provisions of a transferred employee’s employment agreement or contract relating to continuity of service, the employee’s transfer to the Commission from Skill New Zealand or the Ministry is insufﬁcient, by itself, to break his or her employment.
Protection of terms and conditions for transferred employees The employment of a transferred employee must be on terms and conditions no less favourable than those applying to the employee immediately before the date of the person’s transfer to the Commission.
Subsection (1)— (a) continues to apply to the terms and conditions of em­ ployment of a transferred employee until those terms and conditions are varied by agreement between the transferred employee and the Commission; but 53 (1) (2) (3) 54 55 56 (1) (2) 50 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Part 58 s 58 (b) does not apply to a transferred employee who, after the transfer, receives any subsequent appointment within the Commission.
No compensation for technical redundancy 57 (1) An employee who has transferred, or will transfer, to the Com­ mission under section 53 or section 54 is not entitled to receive any payment or other beneﬁt solely on the ground that the per­ son has ceased, or will cease, to be an employee of Skill New Zealand or the Ministry as a result of his or her transfer to the Commission.
(2) An employee of the Ministry is not entitled to receive any pay­ ment or other beneﬁt on the ground that his or her position in the Ministry has ceased to exist if— (a) (b) the position ceases to exist as a result of a transfer of functions of the Ministry to the Commission; and in connection with that transfer of functions,— (i) the employee is given the opportunity, under sec­ tion 54, to transfer to the Commission, to em­ ployment that complies with section 56, but he or she declines to transfer; or the employee is offered, and accepts, other em­ ployment in the Ministry.
(ii) (3) This section overrides an employee’s employment agreement to the extent that it is inconsistent with that agreement.
Miscellaneous 58 Chief executive may be called General Manager For the ﬁrst 3 years after the Tertiary Education Commission is established, the person appointed as its chief executive ofﬁ­ cer under clause 36 of Schedule 13A of the principal Act (as 51 Part 59 s 59 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 inserted by section 47 of this Act) may be called the General Manager.
Consequential amendments 59 Consequential amendments The enactments speciﬁed in Schedule 2 are consequentially amended in the manner set out in that schedule.

Schedule 1 New Schedule 13A inserted in principal Act Schedule 13A Administrative provisions applying to Tertiary Education Commission s 47 s 159C(3) 1 Interpretation In this schedule,— Commission means the Tertiary Education Commission es­ tablished under section 159C member means a member of the Commission.
Appointment of members 2 (1) (2) 3 Method of appointment Every member is appointed by notice published in the Gazette.

The notice of appointment must specify the member’s term of ofﬁce.

When appointment takes effect Every member takes ofﬁce from the date stated in the notice of appointment.
Restrictions on appointments 4 (1) When appointing members of the Commission, the Minister must have regard to the need for the members of the Commis­ 52 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued (2) sion to collectively have a breadth of experience and expertise, and depth of knowledge regarding areas of the tertiary educa­ tion sector.
The Minister may appoint a person as a member only if, in the Minister’s opinion, the person has the appropriate skills and experience to assist the Commission to perform its functions and to achieve its objectives.

(3) A person must not be appointed as a member unless, before that appointment, he or she— (a) (b) consents in writing to be a member; and discloses to the Minister the details of any interest the person would or may have if he or she were a member.
5 Member may hold concurrent ofﬁce A person appointed as a member may hold that ofﬁce concur­ rently with any other ofﬁce.

Term of appointment 6 (1) Term of ofﬁce The term of ofﬁce of a member is 3 years or any shorter term speciﬁed by the Minister in the member’s notice of appoint­ ment.

(2) A member may be reappointed.


(3) Despite subclause (1), every member, unless ceasing to hold ofﬁce under clause 8 or clause 9, continues in ofﬁce until— (a) (b) (c) the member is reappointed; or the member’s successor is appointed; or the date speciﬁed in a letter from the Minister that in­ forms the member that he or she is not to be reappointed and that no successor is to be appointed.
Remuneration and allowances 7 (1) A member of the Commission is entitled to receive, from the Commission’s funds, remuneration and other beneﬁts not 53 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued within subclause (2) for services as a member at a rate and of a kind determined by the Minister.
(2) A member of the Commission is entitled to be paid, out of the Commission’s funds, reasonable and actual allowances for travelling and other expenses relating to the performance of his or her duties and responsibilities as a member.

Resignation and removal of members Resignation 8 (1) A member may, at any time, resign from ofﬁce by notice in writing to the Minister.
(2) A member’s resignation is effective from the date of receipt by the Minister of the notice or from any later time speciﬁed in the notice.

9 Removal from ofﬁce The Minister may, at any time, and for any reason that in the Minister’s opinion justiﬁes the removal, remove a member from ofﬁce by written notice to the member.
No compensation for resignation or removal 10 (1) A member who resigns from ofﬁce under clause 8 or who is removed from ofﬁce under clause 9 is not entitled to any com­ pensation or other payment relating to that resignation or re­ moval.
Subclause (1) does not apply to a chairperson or a deputy chair­ person if the Minister expressly provides, at the time of ap­ pointment of the person to the position, for that person to be entitled to compensation or another payment upon resignation or removal from the position.
(2) 54 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued Vacancies in membership 11 (1) Position if vacancy in membership If a member, for any reason, ceases to hold ofﬁce as a member, the Minister may appoint another person as a member.

(2) A member who is appointed under subclause (1) is appointed for the residue of the term for which the vacating member was appointed.
12 Proceedings not invalidated by vacancy No act or proceeding of the Commission is invalid merely be­ cause there was a vacancy in the membership of the Commis­ sion or because of any defect in the appointment or election of any member.
Duties and liability of members Duties of members 13 (1) When exercising powers or performing duties as a member, in good faith; and every member must act— (a) (b) with reasonable care, diligence, and skill; and (c) (d) with honesty and integrity; and in accordance with any code of conduct issued by a Minister of the Crown that applies to Crown entities generally.
(2) No member, when exercising powers or performing duties as a member, may act as a representative of, or promote the views of, any particular person or group of persons.
14 Collective duties of members The members, acting collectively,— (a) must ensure that the Commission acts in a manner that is consistent with its functions, powers, statement of intent, and any directions given under section 159J; and 55 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued (b) must ensure that the activities of the Commission are conducted efﬁciently and effectively, and in a manner consistent with the spirit of service to the public; and (c) must endeavour to ensure that the Commission operates in a ﬁnancially responsible manner that maintains the ﬁnancial viability of the organisation.
15 Members accountable to Minister (1) A member is accountable to the Minister for performing his or her duties and responsibilities as a member.

If there is a breach of any of the collective duties of members set out in clause 14,— (a) each member is accountable to the Minister for the breach; and the breach justiﬁes all or any of the members being re­ moved from ofﬁce.
(b) Subclause (2) does not apply to a member if— (a) he or she did not know, and could not reasonably be expected to know, that the duty was to be or was being breached; or he or she took all reasonable steps to prevent the duty being breached.
(b) The duties of members under clause 13 are duties owed only to the Minister and the Commission, and the collective duties of members under clause 14 are owed only to the Minister; a fail­ ure to adequately perform those duties does not give grounds for a cause of action against that member by any other person.
Power of Minister to require information to be supplied The Minister may, by written notice, require the Commission to supply, at a speciﬁed time or times, or at speciﬁed intervals, any information that the Minister requires that relates to any aspect of the Commission’s activities.
The Commission must comply with requirements made under subclause (1) unless— (a) the supply of the information would infringe the privacy of any natural person or deceased natural person; and (2) (3) (4) 16 (1) (2) 56 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued (b) there is good reason for withholding the information under the Ofﬁcial Information Act 1982.
Liability of members 17 (1) A member is not personally liable, in any action taken against him or her by the Commission, for any liability of the Commis­ sion, or for any act done or omitted to be done by the Commis­ sion or by any person acting under a delegation of the Com­ mission’s functions, duties, and powers, provided the member acted in good faith in pursuance or intended pursuance of the functions, duties, and powers of the Commission.
Every member is indemniﬁed by the Commission for costs and damages arising from civil proceedings, and costs arising from successfully defended criminal proceedings, if the pro­ ceedings relate to actions taken by the member while he or she was acting in good faith in pursuance or intended pursuance of the functions, duties, or powers of the Commission.
(2) 18 Members not in service of the Crown A person is not employed in the service of the Crown for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 merely as a result of being a member of the Commission.
Disclosure of interests and conﬁdentiality of information 19 Meaning of interested A member is interested in a transaction of, or other matter relating to, the Commission if, and only if, the member— (a) is a party to, or will or may derive a material ﬁnancial beneﬁt from, the transaction or matter; or has a material ﬁnancial interest in another party to the transaction or a person to whom the matter relates; or is a director, ofﬁcer, member, or trustee of another party to, or a person who will or may derive a material ﬁnan­ cial beneﬁt from, the transaction or matter; or (b) (c) 57 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued (d) (e) is the parent, child, or spouse of another party to, or a person who will or may derive a material ﬁnancial beneﬁt from, the transaction or matter; or is otherwise directly or indirectly materially interested in the transaction or matter.
Obligation to disclose interest 20 (1) A member who (otherwise than as a member) has a direct or in­ direct interest in any of the transactions or other matters listed in subclause (2) must, as soon as practicable after the member knows about the relevant facts, disclose the nature of the in­ terest in accordance with clause 21.
The transactions and other matters are— (a) (2) the Commission’s performance of a function or exercise of a power: an arrangement, agreement, or contract made or entered into, or proposed to be made or entered into, by the Commission.
(b) 21 Method of disclosure of interest (1) If clause 20 applies, the member must disclose the details listed in subclause (2) in an interests register and must also disclose them to— (a) the chairperson or, if there is no chairperson, the deputy chairperson; or if the member concerned is the chairperson, or the pos­ itions of the chairperson and deputy chairperson are va­ cant, the Minister.
(b) The details are— (a) the nature of the interest and the monetary value of the interest (if the monetary value can be quantiﬁed); or the nature and extent of the interest (if the monetary value cannot be quantiﬁed).
(b) Consequences of interest A member who is interested in a transaction or other matter relating to the Commission— (2) 22 58 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued (a) must not vote or take part in any deliberation or deci­ sion of the Commission or any committee relating to the transaction or matter; and (b) must be disregarded for the purpose of forming a quo­ rum for that part of a meeting of the Commission or the committee during which a deliberation or decision re­ lating to the transaction or matter occurs or is made.
23 (1) (2) Effect of non­compliance If a member fails to comply with the disclosure requirements in clause 20, the validity of the Commission’s performance of the function, or exercise of the power, or of the arrangement, agreement, or contract made or entered into by the Commis­ sion, is not affected.
The chairperson must report, as soon as practicable, to the Minister any failure (including his or her own) to disclose an interest in a transaction or other matter and any failure to act in a manner that is consistent with the limitations placed on interested members.
Conﬁdentiality of information 24 (1) A member of the Commission who has information in his or her capacity as a member that would not otherwise be available to him or her must not disclose the information to any person, or make use of, or act on, the information, except— for the purposes of the Commission; or (a) as required or permitted by law; or (b) in accordance with subclause (2).
(c) Subclause (1) does not apply if the member is required or au­ thorised by this Act or by the Commission to disclose, use, or act on the information.

(2) Chairperson and deputy chairperson 25 Appointment The Minister must appoint 1 of the members as the chairperson and a different member as the deputy chairperson.
59 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued 26 (1) (2) Term of ofﬁce The term of ofﬁce of the chairperson and of the deputy chair­ person is 3 years.

The chairperson and the deputy chairperson may be reap­ pointed.
(3) Despite subsection (1), a member appointed as the chairperson or as the deputy chairperson holds ofﬁce until— (a) (b) (c) the member is reappointed; or the member’s successor is appointed; or the member is removed from that position by the Min­ ister; or the member ceases to be a member.

(d) Resignation 27 (1) A chairperson or deputy chairperson may, without resigning as a member, resign from the ofﬁce of chairperson or deputy chairperson by written notice to the Minister.
The resignation of the chairperson or deputy chairperson under subsection (1) is effective from the date of receipt by the Min­ ister of the notice or from any later time speciﬁed in the notice.

(2) 28 Appointment of new chairperson or deputy chairperson If the chairperson or deputy chairperson ceases to be the chairperson or deputy chairperson, the Minister may appoint an existing member or a new member as the chairperson or deputy chairperson.
29 Performance and exercise of chairperson’s functions, duties, and powers during vacancy (1) During a vacancy in the ofﬁce of chairperson, or while the chairperson is for any reason unable to perform and exercise the functions, duties, and powers of the chairperson, the deputy chairperson has and may perform and exercise the functions, duties, and powers of the chairperson.
(2) No act done by the deputy chairperson acting as the chairper­ son may, in any proceedings, be questioned on the grounds that 60 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued the occasion for the deputy chairperson to act had not arisen or had ceased.

Procedure of Commission 30 31 (1) Procedure generally Except as otherwise provided in this Act, the Commission may regulate its own procedure.
Times and places of meetings The Commission or the chairperson must appoint the times and places for meetings of the Commission.

(3) (2) Members must be given no less than 5 working days’ notice of any Commission meeting, but the chairperson may convene an extraordinary meeting to be held within a shorter period than 5 working days if all members agree.

The chairperson must convene a meeting on receipt of a writ­ ten request signed by no fewer than 4 members.
The chairperson may permit a member to participate in a par­ ticular meeting by any means of communication that allows the member to reasonably engage in the proceedings of the meeting.

(4) Quorum 32 (1) A quorum for a meeting of the Commission is— (a) (b) 5 members if the Commission has 9 members; or 4 members if the Commission has fewer than 9 mem­ bers.

(2) No business may be transacted at a meeting of the Commission if a quorum is not present, either in person or as permitted under clause 31(4).
33 Who presides at meetings (1) The chairperson must preside at all meetings of the Commis­ sion at which he or she is present.

61 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued (2) (3) (4) If the chairperson is not present, or if there is no chairperson, the deputy chairperson, if present, must preside.
The members present must elect 1 of their number to be chair­ person for the meeting if— (a) the chairperson or the deputy chairperson is not present; or (b) there is no chairperson and no deputy chairperson.

The elected person has and may perform and exercise all the functions, duties, and powers of the chairperson for the pur­ poses of the meeting.
Voting at meetings 34 (1) All questions arising at a meeting of the Commission must be decided by a majority of the votes cast by the members present, either in person or as permitted under clause 31(4).

The member presiding at the meeting has a deliberative vote and, if the votes are equal, also has a casting vote.
(2) Resolutions 35 (1) A resolution in writing, signed or assented to by letter, fax, or electronic message by all members, is as valid and effectual as if it had been passed at a meeting of the Commission duly called and constituted.

(2) A resolution to which subclause (1) applies may consist of several documents in the same form, each signed or appearing to have been sent by 1 or more members.

Chief executive of Commission Chief executive The Commission must appoint a chief executive.
The chief executive must not be a member of the Commission.

The Commission must act independently when appointing the chief executive.

The Commission must monitor and evaluate the performance of the chief executive.
36 (1) (2) (3) (4) 62 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued 37 Responsibilities of chief executive The chief executive must— (a) ensure the efﬁcient and effective administration of the affairs of the Commission; and act in accordance with lawful policies and directions given to him or her by the Commission.
(b) 38 (1) Terms and conditions of employment of chief executive The chief executive must be appointed on terms and conditions determined by the Commission.
(2) However, the Commission must not determine any terms and conditions of employment for the chief executive without— consulting with the State Services Commissioner; and (a) considering every recommendation made, within a rea­ (b) sonable time of being consulted, by the State Services Commissioner about those terms and conditions; and consulting with the Minister, if necessary, in accordance with subsection (3).
(c) The Commission must consult with the Minister if, after con­ sidering a recommendation made by the State Services Com­ missioner about the terms and conditions of employment of the chief executive, the Commission does not intend to adopt that recommendation.

(3) Declaration of interests 39 (1) A person who is proposed to be appointed as chief executive must declare any direct or indirect pecuniary interests to the Commission before accepting appointment to the position of chief executive.
If the chief executive has any direct or indirect interest in any transaction or other matter listed in clause 20(2), he or she must disclose that interest to the Commission.
(2) 63 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued Employees of Commission 40 41 (1) (2) 42 (1) Chief executive may appoint employees The chief executive may appoint any employees (including employees on secondment from other organisations) that the chief executive thinks necessary or desirable to enable the Commission to perform its functions and duties.
Certain State Sector Act 1988 provisions apply Section 56(1) and (2) of the State Sector Act 1988 (which re­ quires departments to be good employers) and section 58 of that Act (which relates to equal employment opportunities) apply to the Commission as if the Commission were a depart­ ment referred to in those provisions.

To avoid doubt, no person employed by the Commission is employed in the service of the Crown for the purposes of the State Sector Act 1988.
Superannuation The Commission may subsidise or contribute to any registered superannuation scheme for the purpose of providing beneﬁts for its employees.

(2) Any person who, immediately before becoming an employee of the Commission, is a contributor to the Government Super­ annuation Fund under Part II or Part IIA of the Government Superannuation Fund Act 1956 is deemed, for the purpose of that Act, to be employed in the Government service so long as he or she continues to be an employee of the Commission.
The Government Superannuation Fund Act 1956 applies to the person in all respects as if the person’s service as an employee of the Commission were Government service.

(3) (4) Nothing in subclause (2) entitles a person to become a con­ tributor to the Government Superannuation Fund if the person has ceased to be a contributor.
64 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued (5) For the purpose of applying the Government Superannuation Fund Act 1956, the chief executive of the Commission is the ‘controlling authority’.
Committees 43 (1) Commission may appoint committees The Commission may, by resolution, appoint 1 or more com­ mittees to— (a) advise the Commission on any matters relating to the Commission’s functions, duties, or powers that are re­ ferred to the committee by the Commission; or perform or exercise any of the Commission’s functions, duties, or powers that are delegated to the committee under clause 57; or develop speciﬁc strategies and recommendations, as de­ termined by the Commission.
(b) (c) (2) A committee must consist of at least 1 member of the Commis­ sion and may include any other persons that the Commission thinks ﬁt.

(3) A person must not be appointed as a member of a committee unless, before that appointment, he or she— (a) (b) consents in writing to be a member; and discloses to the chairperson the details of any interest the person would or may have if he or she were a mem­ ber of that committee.
(4) The Commission may, by resolution, alter, discharge, con­ tinue, or reconstitute a committee appointed under subclause (1).

(5) A member or person who resigns from, or is removed from, a committee is not entitled to any compensation or other pay­ ment relating to that resignation or removal.
65 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued 44 (1) Procedure of committees Subject to the Commission’s direction, and except as other­ wise provided in this Act, a committee may regulate its own procedure.

(2) A Commission member must chair all committee meetings.
45 Obligations of committee members who are not Commission members For the purposes of performing a function or exercising a power, a member of a committee who is not a member of the Commission must act in accordance with the duties of a member of the Commission.
Fees and allowances for committee members 46 (1) A member of a committee appointed by the Commission may be paid, from the Commission’s funds, remuneration and other beneﬁts not within subclause (2) for services as a member of that committee at a rate and of a kind determined by the Min­ ister.
(2) A member of a committee appointed by the Commission is entitled to be paid, out of the Commission’s funds, reasonable and actual allowances for travelling and other expenses relat­ ing to the performance of his or her duties and responsibilities as a committee member.
Commission’s ﬁnances and method of contracting Commission’s ﬁnances The funds of the Commission consist of— (a) any money appropriated by Parliament for the purposes of the Commission; and all money lawfully received by the Commission for its purposes; and any funds transferred to the Commission, or received by it, on establishment; and all accumulations of income derived from that money.
(b) (c) (d) 47 66 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued 48 (1) Bank accounts The Commission must open at any registered bank or regis­ tered banks (within the meaning of the Reserve Bank of New Zealand Act 1989) any accounts that are necessary for the per­ formance or exercise of its functions, duties, and powers.
(2) All money received by the Commission, or by any member or employee of the Commission, for its purposes must, as soon as practicable after the money has been received, be paid into a Commission bank account.

49 (1) (2) 50 (1) (2) (3) Restrictions on investments Surplus money that belongs to the Commission and that is not immediately required by it may only be invested in accordance with section 25 of the Public Finance Act 1989.
Surplus money includes money belonging to the Commission and other money that the Commission manages on any other person’s behalf.

No controlling interests The Commission must not control any other entity or hold a percentage of the voting rights in any other entity that would require it to seek control of that entity.

If a contravention of subsection (1) arises (through inadver­ tence or otherwise), the Commission must take all reasonable steps to remedy the default as soon as practicable.
For the purposes of this clause, an entity is controlled by the Commission if— (a) (b) the entity is a subsidiary of the Commission; or the Commission controls the entity within the meaning of any relevant approved ﬁnancial reporting standard (within the meaning of section 2(1) of the Financial Re­ porting Act 1993); or the Commission can control directly or indirectly the composition of the board of the entity within the mean­ ing of sections 7 and 8 of the Companies Act 1993 (which, for the purposes of this paragraph, are to be read with all necessary modiﬁcations).
(c) 67 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued (4) For the purposes of this clause,— entity means any person, whether corporate or unincorporate subsidiary — (a) means a subsidiary within the meaning of sections 5 to (b) 8 of the Companies Act 1993; and includes an entity that is classiﬁed as a subsidiary in any relevant approved ﬁnancial reporting standard (within the meaning of section 2(1) of the Financial Reporting Act 1993).
51 52 53 (1) (2) Restrictions on borrowing The Commission may not borrow or contract to borrow money, or amend the terms of any loan made to it, without the prior written consent of the Minister of Finance.

Restrictions on derivatives The Commission may not enter into a derivative instrument, or amend the terms of a derivative instrument, without the prior written consent of the Minister of Finance.
Commission is public authority For the avoidance of doubt, the Commission is a public au­ thority for the purposes of the Inland Revenue Acts.

In this section, Inland Revenue Acts has the same meaning as in section 3(1) of the Tax Administration Act 1994.
54 Method of contracting The Commission may enter into a contract or other enforce­ able obligation as follows: (a) an obligation required to be in writing may be entered into on behalf of the Commission, in writing, by a per­ son acting under the express or implied authority of the Commission: an obligation that may be entered into otherwise than by writing may be entered into on behalf of the Commis­ (b) 68 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued sion, in writing or orally, by a person acting under the express or implied authority of the Commission: an obligation that is required to be entered into by deed must be signed by 2 members of the Commission.
(c) Accountability of Commission 55 (1) Statement of intent In fulﬁlling the requirements under section 41D(1) of the Pub­ lic Finance Act 1989, the Commission must, instead of includ­ ing in its statement of intent the information described in sub­ section (1)(a), (b), and (c) of that section (which is about ob­ jectives, activities, and performance targets), include the fol­ lowing information in its statement of intent: (a) (b) (c) (d) contextual information about the Commission, includ­ ing its functions, its current organisational structure, any notable features of its operating environment, and the likely implications of those features; and a general description of the things that the Commission proposes to do, achieve, or work towards during the period covered by the statement of intent, which— (i) must be consistent with the statement of tertiary education priorities and the Commission’s func­ tions; and (ii) must include a summary of the nature and scope of the Commission’s proposed operations; and (iii) may cover both ﬁnancial and non­ﬁnancial mat­ ters; and a general description of the Commission’s proposed strategies and activities for giving effect to, or achiev­ ing, the things referred to in paragraph (b), including a list of the intended principal activities of the Com­ mission and how they relate to the things referred to in paragraph (b); and a description of how the statement of output objectives (as required by section 41D(1)(h) of the Public Finance 69 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued Act 1989) links to the things referred to in paragraph (b); and a general description of the manner in which the Com­ mission proposes to operate and, in particular,— (i) which other persons or bodies engaged in similar or related work it proposes to liaise with, and how it proposes to liaise with those other persons or bodies; and (ii) what capability it needs to do its work, and how it will develop that capability; and (iii) how it proposes to manage
 its risks; and for each of the ﬁnancial years to which the statement of intent relates, performance measures and targets by which the Commission’s performance, and progress to­ wards delivering the things referred to in paragraph (b) may be judged; and in relation to decision making, the following matters: (i) the matters on which the Commission must have the Minister’s approval before proceeding: the matters on which the Commission will con­ sult the Minister before making a decision: the matters on which the Commission will report to the Minister, and the frequency of reporting; and (ii) (iii) in relation to the ﬁnancial affairs of the Commission, the following matters: (i) for each of the ﬁnancial years to which the state­ ment of intent relates, the key ﬁnancial measures by which the ﬁnancial performance of the Com­ mission will be judged: (ii) for each of the ﬁnancial years to which the statement of intent relates, the expected revenue to be earned, and the proposed costs to be incurred, for each class of out­ puts as speciﬁed in the statement of output objectives: (e) (f) (g) (h) 70 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued (iii) (iv) (i) forecast ﬁnancial statements, including a forecast statement of ﬁnancial perform­ ance, statement of ﬁnancial position, fore­ cast statement of movements in equity, and statement of cash ﬂows, prepared in accordance with generally accepted ac­ counting practice for each ﬁnancial year to which the statement of intent relates: an outline of the proposed strategy for managing any recently reported or antici­ pated material net deﬁcit (as determined in accordance with generally accepted ac­ counting practice); and any other information material to under­ standing and assessing the information provided in the statement of intent with­ information is false or out which that misleading in a material particular.
(2) (3) 56 The grouping of outputs in the statement of output objectives referred to in section 41D(1)(h) of the Public Finance Act 1989 must be done so that, in the case of outputs funded by appro­ priation, a group of outputs does not contain outputs funded from more than 1 appropriation in the Estimates.
The Minister may, in relation to the Commission, exercise his or her powers under section 41G(1) of the Public Finance Act 1989 as if that section included a reference to paragraphs (b), (f), and (g) of subsection (1); and that section applies accord­ ingly.
Annual report The Commission must include the following matters in its an­ nual report, in addition to the matters speciﬁed in sections 41I(b) and 44 of the Public Finance Act 1989: (a) the Commission did and a comparison of what its statement of achieved, as compared with what intent indicated that it would do or achieve, to enable 71 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued (b) (c) (d) (e) (f) (g) an informed assessment to be made of its performance, including its ﬁnancial performance; and a description of how the Commission is monitoring, and how it will report on, progress in implementing the ter­ tiary education strategy; and an assessment of the reasons for, and the implications of, any material reported net deﬁcit (as determined in accordance with generally accepted accounting prac­ tice) incurred during the ﬁnancial year; and any matter on which the statement of intent for that ﬁ­ nancial year required the annual report to report; and for each person who was at any time during the ﬁnan­ cial year a member or committee member of the Com­ mission, the total value of the remuneration and other beneﬁts payable by or received from the Commission during that ﬁnancial year; and the number of employees and former employees who, at any time during the ﬁnancial year, received remuner­ ation and any other beneﬁts, or to whom remuneration and any other beneﬁts became payable, in their cap­ acity as employees, the total value of which exceeded $100,000 per year, and the number of those employees, in upward brackets of $10,000; and any other information that is necessary to enable an informed assessment to be made of the Commission’s overall performance for that ﬁnancial year.
Delegations Delegation by Commission of Commission’s functions, duties, or powers The Commission may, by writing, either generally or speciﬁc­ ally, delegate any of its functions, duties, or powers to any of the following: (a) (b) any of its members: a committee appointed under clause 43: 57 72 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 1 Schedule 13A—continued (c) (d) the chief executive: any employee or employees of the Commission.
58 (1) Further delegation by member, chief executive, or committee If the Commission has, under clause 57, delegated any func­ tion, duty, or power to a member, the chief executive, or a committee, that member, chief executive, or committee may delegate the function, duty, or power to 1 or more employees of the Commission.

(2) No delegation under subclause (1) may be made without the prior written approval of the Commission.
(3) A delegation under subclause (1) must be in writing, signed by the member, the chief executive, or at least 2 of the members of the committee, as the case may be.

59 (1) (2) (3) Delegation by chief executive of chief executive’s functions, duties, or powers The chief executive of the Commission may, either generally or speciﬁcally, delegate any of his or her functions, duties, or powers under this Act or any other Act to 1 or more employees of the Commission.
For the avoidance of doubt, the chief executive must not dele­ gate functions, duties, or powers delegated by the Commission to the chief executive except in accordance with clause 58.

If the chief executive has delegated any functions, duties, or powers to an employee of the Commission under subclause (1), the employee may delegate those functions, duties, or powers to any other employee of the Commission.
(4) No delegation under subclause (3) may be made without the prior written approval of the chief executive.

(5) A delegation under subclause (3) must be in writing and signed by the employee.
60 Delegations to employees and to classes of employees (1) A delegation to an employee or employees may be to— 73 Schedule 1 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 Schedule 13A—continued (a) (b) (c) any named person or persons; or any holder or holders of a particular ofﬁce speciﬁed in the delegation; or any member of a class of persons speciﬁed in the dele­ gation.
If a delegation is to a class of persons, it applies, subject to any express terms of the delegation, to the members of the class for the time being, irrespective of any change in the membership of the class.
Effect of delegation Subject to the Commission’s direction, or the chief executive’s direction, as the case may be, a person to whom any powers are delegated may exercise those powers in the same manner and with the same effect as if they had been conferred on that person directly by this Act and not by delegation.
(2) 61 (1) (2) A delegation does not affect or prevent the performance of any function or duty, or the exercise of any power, by the delegator, or affect the responsibility of the delegator for the actions of any person acting under the delegation.
If a function, duty, or power of the Commission is delegated to a person, that person, for the purposes of performing or exercising the delegated function, duty, or power, must act in accordance with the Commission’s duties as if he or she were a member of the Commission.

(3) Presumption of acting in accordance with delegation A person who appears to act under a delegation is, in the ab­ sence of proof to the contrary, presumed to be acting in ac­ cordance with the terms of the delegation.
Certain powers must not be delegated The Commission must not delegate any of the following powers: (a) (b) the power to appoint a chief executive; or its power to delegate, except in accordance with clause 58; or 62 63 74 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 2 Schedule 13A—continued (c) any other power that the Minister speciﬁes by notice in writing to the Commission.
64 (1) Duration of delegation Every delegation— (a) (b) is revocable at will, but the revocation does not take effect until it is communicated to the delegate; and continues in force according to its terms until it is re­ voked despite any change in the membership of the Commission or in the identity of the chief executive.

(2) The revocation of a delegation must be made or conﬁrmed in writing.
Schedule 2 Consequential amendments s 37 1 Acts amended Education Amendment Act 1990 (1990 No 60) Repeal section 43.

Repeal section 45.

Omit from Schedule 2 the item that inserts paragraph (cb) into the Government Superannuation Act 1975.

Omit from Schedule 2 the item that inserts the Education Training and Support Agency into Part 2 of Schedule 1 of the Ombudsmen Act 1975.

Education Amendment Act 1993 (1993 No 51) Repeal section 19.
75 Schedule 2 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 1—continued Government Superannuation Act 1956 (1956 No 47) Omit paragraph (cb) from the deﬁnition of controlling authority in section 2, and substitute the following paragraphs: “(cb) a contributor employed by Career Services established under Part XXII of the Education Act 1989 means the general man­ ager of that Service: “(cc) a contributor employed by the Tertiary Education Commission established under Part 13A of the Education Act 1989 means the chief executive of the Commission:” Modern Apprenticeship Training Act 2000 (2000 No 94) Repeal the deﬁnition of Agency in section 4.
Omit from the deﬁnition of apprenticeship co­ordinator in section 4 the word “Agency” and substitute the word “Commission”.

Insert in section 4, in its appropriate alphabetical order, the following deﬁnition: “Commission means the Tertiary Education Commission established by section 159C of the Education Act 1989.” Omit from the deﬁnition of funding agreement in section 4 the word “Agency” in both places where it appears and substitute in each case the word “Commission”.
Omit from the heading above section 9 the word “Agency’s” and substitute the word “Commission’s”.

Omit from the heading to section 9 and section 9 the word “Agency” in both places where it appears and substitute in each case the word “Commission”.

Omit from section 10(1) the word “Agency” and substitute the word “Commission”.
Omit from section 10(1)(a) the words “the existence of other fund­ ing agreements, or funding agreements under the Industry Training Act 1992” and substitute the words “the existence of other funding arrangements”.

Omit from section 11 the word “Agency” in both places where it appears and substitute in each case the word “Commission”.
76 2002 No 50 Education (Tertiary Reform) Amendment Act 2002 Schedule 2 1—continued Omit from the heading to section 12 and section 12 the word “Agency” in both places where it appears and substitute in each case the word “Commission”.

Omit from the heading to section 13 and section 13 the word “Agency” wherever it appears and substitute in each case the word “Commission”.
Omit from the heading to section 14 and section 14 the word “Agency” in both places where it appears and substitute in each case the word “Commission”.

Omit from section 18(2) the word “Agency” and substitute the word “Commission”.

Omit from section 20(1) the word “Agency” in both places where it appears and substitute in each case the word “Commission”.

Omit from section 23 the word “Agency” in both places where it appears and substitute in each case the word “Commission”.
Omit from section 24 the word “Agency” in both places where it appears and substitute in each case the word “Commission”.

Omit from section 25 the word “Agency” in both places where it appears and substitute in each case the word “Commission”.

Omit from section 27 the word “Agency” wherever it appears and substitute in each case the word “Commission”.
Ombudsmen Act 1975 (1975 No 9) Insert in Part II of the First Schedule, in its appropriate alphabetical order, the item “Tertiary Education Commission.” Omit from Part II of the First Schedule the items relating to Skill New Zealand and the Tertiary Research Board.

Public Finance Act 1989 (1989 No 44) Insert in the Fourth, Fifth, Sixth, and Seventh Schedules, in its appro­ priate alphabetical order, the item “Tertiary Education Commission”.
Omit from the Fourth, Fifth, Sixth, and Seventh Schedules the items relating to “Skill New Zealand and the Tertiary Research Board”.

77 Education (Tertiary Reform) Amendment Act 2002 2002 No 50 2 Regulations amended Education (Change of Name of Education Entities) Order 2000 (SR 2000/117) Revoke clause 3(3) and so much of the Schedule as relates to Skill New Zealand.
New Zealand Council for Educational Research (Electoral College) Order 1998 (SR 1998/336) Revoke clause 2(11) and substitute: “(11) the chief executive of the Tertiary Education Commission:” Legislative history 3 December 2002 5 December 2002 Divided from Tertiary Education Reform Bill (Bill 180­2) as Bill 180­3A Third reading 78