Bills Digest no. 33 2007–08
Maritime Legislation Amendment Bill 2007
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Objects
Background
Financial implications
Key issues
Main provisions
Conclusion
Endnotes
Contact officer & copyright details
Passage history
-
integrating the Australian Maritime College
(the AMC) with the University of Tasmania (the University),
and
-
enabling the Australian Maritime Safety
Authority (AMSA) to share information with other government and non
government agencies and parties for specific purposes.
In 1978, the AMC was established under the
Maritime College Act 1978 (the Maritime
College Act) as a national institution for maritime education and
training. [1]
The Maritime College Act enables the AMC to
[2]
accredit post-compulsory education and training
courses and to issue higher education qualifications under the
Australian Qualifications Framework.
Its focus has been on maritime research,
education and training. Courses are offered from certificate to
doctorate levels in the specialist areas of: [3]
-
maritime engineering
-
maritime and logistics management
-
marine and coastal conservation, and
-
fisheries and the marine environment.
Although the AMC reports to the Minister for
Transport and Regional Services (the Minister), it must also meet
the legislative and reporting requirements of a higher education
institution under the provisions of the Higher Education
Support Act 2003 (the HESA) through which it receives
Commonwealth funding for student places and other grants such as
capital funding. [4]
In 2005, the AMC had a total student load of
757 making it one of the smaller providers receiving Commonwealth
funding. Student load was divided almost equally between students
in Vocational Education and Training courses and those in
undergraduate courses and a significant proportion, 154, were
overseas students. [5]
The AMC is one of three providers receiving
funding under the National Institutes programme reflecting the
College s special position as an institute established under
Commonwealth legislation with a mission to provide qualifications
for the maritime industry . [6] In 2005, the AMC received $4.2 million from the
programme out of its total of $13.06 million in Commonwealth
grants. [7]
The AMC had plans to expand through the
establishment of a new campus at Point Nepean in Victoria. In the
2004-05 Budget, the Australian Government made a commitment to
provide $4.9 million in Commonwealth Grant Scheme (CGS) and
National Institutes funding over the four years from 2005 to 2008
to the AMC towards the development of a National Centre for Marine
and Coastal Conservation at Point Nepean on Victoria s Mornington
Peninsula. [8] This
funding was made up of $2.6 million for 40 new Commonwealth
supported places for students to commence at the Centre in 2005 and
$2.3 million in National Institutes funding for infrastructure
development. The 40 Commonwealth supported places were to grow to
109 places by 2009, bringing the Australian Government s total
commitment of funding through the Department of Education, Science
and Training (DEST) portfolio to $9.7 million.
On 16 June 2006, in a joint media release, the
Treasurer and the Parliamentary Secretary for the Environment and
Heritage and Member for Flinders, Greg Hunt, announced the
allocation of a further $27 million in Australian Government
funding towards heritage restoration of the Point Nepean site and
the development of the Centre. This funding was provided to the
Point Nepean Community Trust, the body set up to manage the
Commonwealth land on which the Centre is to be established until it
is transferred to the Victorian Government as an integrated
national park before 2011. [9]
Due to delays in the development of the
Centre, the AMC was unable to deliver the Point Nepean places in
2005. A reduced number of Commonwealth supported places is
currently being offered in temporary facilities at the Rosebud
campus of the Chisholm Institute of Technical and Further
Education and, at this stage, there is no indication of when the
Centre is likely to be completed.
In 2005, it was reported that AMC had tried
unsuccessfully to attain full university status and, after the
resignation of the Principal, began discussions instead on a merger
with the University of Tasmania which has a campus adjacent to the
AMC. [10]
In October 2006, the AMC and the University
signed a Heads of
Agreement which sets out the general principles which the AMC
and the University agree should be the framework for integration.
[11]
The Heads of Agreement states that the AMC
would become a separately constituted institute of the University
and be governed by the University Council with a separate industry
focused Board. Elsewhere it is stated that AMC would have a
principal or CEO who would also be a member of the University s
senior management. [12] Provisions in Part 4 Schedule 1 of the
Bill implement the agreement on governance of the AMC in the first
five years after integration.
The AMC and the University believe that there
are mutual benefits arising from integration.
According to the Heads of Agreement, [13]
Integration offers the opportunity for the two
institutions to optimise opportunities for staff and students
through a renewed or enhanced range of undergraduate and
postgraduate courses and research activities, drawing where
possible on the strengths of both institutions.
In addition, the AMC and the University have
agreed that the purpose of the integration would be to: [14]
strengthen the overall provision of maritime and
maritime-related education, training and research nationally and
internationally to the mutual benefit of UTAS and AMC.
The AMC and the University agreed that the
purpose would be achieved by: [15]
a) providing within UTAS a secure, certain and sustainable
framework that will assist AMC to continue in its role as the
national provider of maritime and maritime-related education,
training and research;
b) an enhanced AMC, building upon its current reputation to
develop a strong applied marine focus, committed to innovation and
leadership in contemporary, professional and practice-based
maritime and maritime-related education, training and research;
c) AMC building its linkages and collaboration with Australian
maritime and maritime-related industries, and expanding its strong
links with international maritime and maritime-related
industries;
d) AMC bringing into UTAS its international reputation and
distinctive pedagogy;
e) improving opportunities for collaboration between AMC and
UTAS faculties and institutes;
f) establishing the Launceston campus of UTAS as an
internationally recognised location for the provision of maritime
and maritime-related education, training and research; and
g) strengthening the reputation of both UTAS and AMC.
Australian Maritime College and the
University s plan for integration
The Heads of Agreement sets out terms relating
to:
-
the protection of the AMC s purpose and
vision
[16]
-
the AMC s marketing strategies
[17]
-
use and development of AMC sites
[18]
-
management and development of the AMC s
educational programs
[19]
-
development of research programs
[20]
-
protection of the AMC s staff employment
conditions
[21]
-
protection of student entitlements
[22]
-
annual operational funding arrangements
[23]
-
-
lines of accountability
[25]
-
systems for AMC s quality assurance
[26]
-
conflict resolution systems,
[27] and
-
These terms complement and, in many cases,
provide the detail for proposed provisions in the Bill, which are
generally broader in scope. Please refer to the Main provisions
section for examples of such terms.
The merger of the two higher education
providers fits broadly within the Government s policy for a
diversified higher education sector. The Minister in a wide-ranging
speech on the need for diversity called for universities to differ
from each other in terms of mission, discipline mix, course
offerings, modes of delivery, management and in academic structure.
[29] The guarantee
of the AMC s continuing profile, at least for five years, as a
specialist provider of maritime education and training and one
which attracts significant numbers of overseas students will assist
the University in differentiating itself from other providers. The
Minister envisages such diversity will mean either the same number,
or, perhaps, fewer universities. I do not propose to force
universities into mergers. These marriages must be voluntary, but I
encourage universities to look at their future, and determine which
direction to take merge or reform. [30] Financial assistance for such reform
or mergers will be available through a new Diversity and Structural
Adjustment Fund announced in the 2007-2008 Budget with funds of
$208.6 million over four years. It would seem appropriate that the
University of Tasmania would be able to access the Fund to assist
with the integration. [31]
AMSA, a Commonwealth Authority, was
established under the Australian Maritime Safety Authority Act
1990 (Australian Maritime Safety Authority Act) [32] and commenced
operating in 1991. [33]
AMSA falls within the portfolio of the
Department of Transport and Regional Services (DOTARS). [34]
AMSA s main role is primarily: [35]
DOTARS aims to promote and ensure safe and
secure transport, which is accessible, environmentally responsible
and sustainable. [36]
DOTARS [37]
conducts research, analysis and safety
investigations; provides safety information and advice based upon
these investigations; and performs regulatory functions.
Maritime transport, which includes shipping,
is within the DOTARS portfolio. [38]
According to the Explanatory Memorandum to the
Bill, there are no financial implications for the Government
arising from the Bill. [39] However there are some issues regarding funding of the
AMC.
The consolidated net assets of the AMC to be
transferred to the University are valued at $61.4 million. [40] In the 2007-2008
Budget Papers, the transfer of the AMC s assets is funded by a
budget measure of $61.4 million from DOTARS as a one-off
administered expense to gift the assets of the Australian Maritime
College to the University of Tasmania . [41]
When the Maritime Legislation
Amendment Act 2007 commences, the AMC will no longer
be an independent entity. It is anticipated that there will be
obligations that are outstanding at the time of integration,
particularly financial reporting obligations. It is proposed in
item 15 of the Bill that in the University funding
agreement (between the University and DEST), AMC institute funding
would be specified (or a method to calculate the portion) in the
first five years post integration. Item 17 of the
Bill requires, in the first five years after integration, an annual
review of AMC funding under the HESA and also stipulates reporting
conditions on governance and performance indicators.
It is not clear if the AMC will continue to
receive National Institute programme funding or what will happen
with the appropriations for Point Nepean and the Point Nepean site.
The second reading speech states that an agreement is to be
negotiated between the Department of Transport and Regional
Services and the University defining how the University will deal
with the land assets to be transferred to it as a result of the
integration . However, unlike the details of the reporting
requirements on funding and governance specified in Part
4 of the Bill, the conditions of an agreement on land are
not specified in the Bill.
As the Bill authorises AMSA to share its
information with government agencies and others, the question
arises of what would be the implementation and maintenance costs
for AMSA.
According to the Explanatory Memorandum, AMSA
s information sharing activities are proposed to be audited and
governed by internal procedures. [42] In addition, there is
likely to be the need to enter into formal agreements with those
parties with whom AMSA will share information.
It may be argued that AMSA would incur
additional costs (up-front and ongoing) as a result of these
proposed additional activities.
Several issues arise relating to the
implementation of the Bill.
The key issue that arises in relation to
integration is what review and monitoring mechanisms would be in
place after five years elapses (the Bill only proposes annual
review during the first five years).
Proposed protections afforded to the staff,
funding, course structure and status of the AMC following
integration are only in place for five years.
Key issues relating to proposed provisions
relating to AMSA concern:
-
what would be the cost implications for AMSA of
its additional authorised activities, and
-
on what basis would any additional costs be
funded.
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Item 2 proposes that the
Maritime College Act be repealed.
The Heads of Agreement sets out terms that
complement proposed provisions in the Bill and that provide for the
practical implementation of those provisions, as agreed by the AMC
and the University (the parties). Examples of complementary terms
in the Heads of Agreement follow the related items in the Bill
below.
Division 1 proposes what
would happen with the AMC s assets, liabilities and legal
proceedings upon integration.
Item 3 proposes that the AMC
s assets immediately before integration will automatically become
the University s assets at the time of integration, without
conveyance, transfer or assignment of those assets.
Clause 6 of the Heads of Agreement sets out
terms relating to the use, management and development of AMC
sites.
According to subclause 6.1, the parties agree
that the AMC will continue to be based on its current sites. In
addition, in subclause 6.2, the parties agree that while AMC sites
will be designated for training, education, community activities
and research relating to maritime and maritime related areas, it is
recognised that there should be scope for expanding AMC activities
onto the University sites and relocating related University
activities and programs onto AMC sites.
Clause 14 of the Heads of Agreement relates to
the AMC s financial assets.
According to subclause 14.1, the parties agree
that the University will become the legal owner of the AMC s
financial assets upon integration but that those financial assets
will be made available for the AMC s use. Subclause 14.2 provides
for how AMC trusts, bequests, grants, prizes and scholarships will
be managed and applied for the benefit of the AMC, as well as its
staff and students.
Clause 15 relates to the AMC s physical
assets.
According to subclause 15.1, the parties agree
that at the time of integration, all assets of the AMC will be
vested in the University at the time of integration. However, the
parties also agree that the AMC would have priority access to those
assets in order to support its educational programs, teaching and
administration.
Item 4 proposes that the AMC
s liabilities immediately before integration will automatically
become the University s liabilities at the time of integration,
without conveyance, transfer or assignment of those
liabilities.
Subclause 14.4 of the Heads of Agreement
contains terms stating that the University will become liable to
pay the AMC s liabilities upon integration.
Item 5 contains proposals
regarding registration of certificates that relate to vesting of
land.
Item 6 contains similar
proposals regarding certificates that relate to vesting of assets
other than land.
Item 7 proposes that from the
time of integration, the University would be substituted for the
AMC as a party to proceedings that are pending immediately before
integration.
Item 8 proposes that any
records or documents that the AMC has in its custody immediately
before integration, would be transferred to the Commonwealth s
custody at or after the time of integration.
Items 8(3) and
8(4) propose provisions particularly relating to
the records and documents, which are subject to the
Commonwealth Authorities and Companies Act 1997 and
transferred into the Commonwealth s custody following
integration.
Item 9 proposes that, unless
otherwise determined by the Minister or provided by the
regulations, references to the AMC, staff or students of the AMC in
instruments that are in force immediately before integration would
be regarded as references to the University, its staff or students
respectively.
Instrument is defined in Part 1 item
1 of the Bill and would include:
However, instrument would not include:
The Minister s determination is not a
legislative instrument.
Item 10 proposes that, unless
otherwise determined by the Minister or provided by the
regulations, anything done by the AMC before integration is taken
to have been done by the University for the purposes of
Commonwealth law.
Doing something includes making an
instrument.
In addition, the Minister s determination is
not a legislative instrument.
Item 11 proposes that the
Board of the new AMC institute would have to satisfy existing and
outstanding AMC financial statements and other reporting
requirements at integration.
Items 12-14 propose
miscellaneous provisions in relation to Part 3
about stamp duty and other State of Territory exemption for the
Commonwealth Government, authenticity of certificates made or
issue, as well as regulation making powers.
Item 15 proposes that AMC
institute funding is the part of University funding specified or
calculated in the University funding agreement for a post
integration year. Post integration year is defined in
proposed item 1 and means the year commencing at
the time of integration or any of the four years following that
first year.
Clause 13 of the Heads of Agreement sets out
terms regarding annual operational funding of the AMC
institute.
In particular, paragraph 13.1(c) sets out the
formula that would be used to calculate the total amount of
University funding allocated to the AMC institute.
Item 16 contains provisions
that would apply to the review of integration.
Item 16(2) proposes that
during the period of 28 days immediately after the three month
period, which commences at the time of integration (the initial
post integration period), the Minister would have to consider
whether all of the funding conditions in that initial
post-integration period have been met.
The proposed funding conditions are set out in
a table immediately after item 16(2). Please see
below.
The Minister must provide written
certification to the Education Minister of whether the Minister is
satisfied that these conditions have been met.
If the Minister is not satisfied that these
conditions have been met, the Minister must give written reasons
for his or her dissatisfaction to the Education Minister.
Item 16(1) proposes that the
University only receives AMC institute funding if the Minister is
satisfied that those funding conditions have been met. Else, the
University may have to repay the AMC institute funding for a post
integration year.
Clause 24 of the Heads of Agreement sets out
terms relating to internal reviews of integration.
Item 17 contains provisions
that would apply to annual reviews of integration during the first
five years.
Item 17(2) proposes that
during the period of 60 days immediately after each post
integration year, the Minister would have to consider whether all
of the funding conditions relating to that post-integration year
have been met.
The proposed funding conditions are set out in
a table immediately after item 17(2). Please see
below.
The Minister must provide written
certification to the Education Minister of whether the Minister is
satisfied that these conditions have been met.
If the Minister is not satisfied that these
conditions have been met, the Minister must give written reasons
for his or her dissatisfaction to the Education Minister.
Item 17(1) proposes that the
University only receives AMC institute funding for a post
integration year if the Minister is satisfied that those funding
conditions have been met. Else, the University may have to repay
the AMC institute funding for the year.
Item 18 contains provisions
that would apply to a review of integration before the first five
years elapse.
Item 18(1) proposes that the
Minister would have to get the following reviewed:
This review would have to be done within the
last six months of the five year period beginning from the time of
integration.
Items 18(2) and (3) propose
the manner and form that the review must take.
Items 18(4) and (5) propose
that the reviewer provide the Minister with a written report, which
must be tabled in Parliament within 15 sitting days of the Minister
receiving it.
Item 19 proposes that the
Minister has delegation powers to the Secretary, an SES employee or
acting SES employee of DOTARS. The delegate must comply with any
written directions by the Minister.
These conditions are set out in a table
immediately after item 16.
Condition 1.1 sets out the
establishment of the AMC as an institute within the University, its
objectives; the functions and powers of the AMC Board; and that the
AMC will have a Principal.
Subclauses 1.2, 7.2 and 7.7 of the Heads of
Agreement are examples of terms in that document complementing the
objectives of the AMC institute set out in condition 1.1 of the
Bill.
Other terms in clause 7 of the Heads of
Agreement set out provisions stating how the AMC s educational
programs will be managed and developed in accord with the
objectives of the AMC institute.
Clause 8 of the Heads of Agreement sets out
terms relating to research activities.
Clause 4 of the Heads of Agreement sets out
the terms relating to the governance and structure of the AMC as an
institute of the University. In particular, subclauses 4.2 and 4.3
relate to the AMC Board.
Clause 17 of the Heads of Agreement sets out
the detailed terms relating to the management structures of the AMC
institute.
Condition 2.1 sets out the
status and rights of students of the AMC (who were students
immediately before integration) during the initial post integration
period.
Clause 10 of the Heads of Agreement
complements this proposal.
Condition 3.1 sets out the
status and rights of staff of the AMC (who were staff immediately
before integration) at integration. In particular, their University
employment terms and conditions will not be less favourable to
these staff than the AMC employment terms and conditions.
Subclauses 9.3 and 9.4 of the Heads of
Agreement set out terms complementing this proposal.
Clause 9, in general, sets out terms
containing the details of AMC staff transfer to the University at
integration.
Condition 4.1 states that
during this period, financial assets, which are equivalent to the
AMC s financial assets transferred to the University under
Part 3 of the Bill, will be set apart for the AMC
institute.
See subclause 14.1 of the Heads of Agreement
as discussed above.
Condition 5.1 states that
during this period, the AMC institute will have priority access to
undisposed land and other assets of the AMC, which were transferred
to the University under Part 3 of the Bill.
See subclause 15.1 of the Heads of Agreement
as discussed above.
These conditions relate to each and any post
integration year and are set out in a table immediately after
item 17.
For examples of complementary terms in the
Heads of Agreement, please refer to previous discussion of such
terms.
Condition 1.1 sets out the
establishment of the AMC as an institute within the University (in
second and subsequent post integration years), its objectives; the
functions and powers of the AMC Board; and that the AMC will have a
Principal.
Conditions 2.1 and
2.2 set out the constitution of the AMC Board and
the areas of expertise that the AMC Board must have.
Conditions 3.1, 3.2 and
3.3 set out requirements relating to the report
that the AMC Board must prepare and give to the Minister. This
report must include information relating to a performance
assessment of the AMC institute, a risk analysis and a strategic
plan.
Condition 4.1 sets out the
priority of access that the AMC institute will have to the
undisposed land and other assets of the AMC, which were transferred
to the University under Part 3 of the Bill. This
will not apply to the first post integration year.
Condition 5.1 sets out
requirements on the University in disposing of any land and other
assets of the AMC, which were transferred to the University under
Part 3 of the Bill.
Condition 6.1 states that the
University will provide the Minister with written notification of
any significant reduction of the AMC institute s operations, at
least 12 months before the reduction.
Part 5 proposes consequential
amendments to the following Acts:
-
Higher Education Support Act
2003
-
Legislative Instruments Act 2003
-
Public Works Committee Act 1969,
and
-
Remuneration Tribunal Act 1973.
Item 1 proposes that a
new section 11 be inserted into the Australian
Maritime Safety Authority Act enabling AMSA to share information
that it obtains for the following purposes:
-
maritime domain awareness, which includes
maritime security
-
maritime safety
-
marine environment protection, and
-
maritime transport efficiency.
This information may be provided to anyone on
terms (if any) to be decided by AMSA.
The integration of the AMC and the University
is supported by both providers and the terms in the Heads of
Agreement are broadly implemented in the provisions of the Bill.
The Bill has mechanisms to protect the academic and financial
viability of the AMC; employment rights of staff, and the rights of
students for five years. The merger of the two higher education
providers fits broadly within the Government s policy for a
diversified higher education sector.
The Bill proposes broad powers for AMSA that
relate to sharing its information.
These proposals are likely to involve
additional administrative costs for AMSA in modifying its current
information sharing framework and implementing the changes.
The question remains of how additional costs
will be funded.
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Endnotes
[5]. Australian Maritime College, Annual Report
2005, p. 16.
[6]. Higher Education Report, 2005 (DEST, 2007?), p. 40.
[9]. Hon Peter Costello, Treasurer, and Greg Hunt,
Parliamentary Secretary for the Environment and Heritage, Member
for Flinders, $27 Million To Restore Point Nepean And Establish New
National Centre For Marine And Coastal Conservation , Joint
Media Release, 16 June 2006. When combined with an Australian
Government contribution
of $5 million towards the establishment of the Trust, handed over
on 10 June 2004, the DEST funding outlined above, and various
other Australian Government contributions announced by the
Prime Minister, the total Australian Government commitment to the
Point Nepean development is $48 million.
[10]. College closer to merging with uni , The
Mercury 30 November 2005.
[11]. AMC and University of Tasmania, Heads of
Agreement, October 2006, p. 1.
[13]. AMC and University of Tasmania, Heads of
Agreement, op cit, subclause 1.1.
[14]. ibid., subclause 1.2.
[15]. ibid., paras 1.2(a)-(g).
[24]. ibid., clauses 14, 15.
[25]. ibid., clauses 17, 18.
[27]. See: ibid., clauses 23, 25.
[32]. Australian Maritime Safety Authority Act 1990
s 5.
[35]. AMSA,
Sixteenth Annual Report
2005-2006, p. 2.
[39].
Explanatory Memorandum, Maritime Legislation Amendment
Bill 2007, p. 1.
[40]. The net book value of the AMC s assets at 31 December
2006 was $52.7 million: Australian Maritime College, Annual
Report 2006, p. 50.
[41]. Budget Measures 2007-2008, Budget Paper No 2,
p. 297; Portfolio Budget Statements, 2007-2008, Transport
and Regional Services, pp. 13 and 25.
[42].
Explanatory Memorandum, op cit, p. 14.
Coral Dow
Social Policy Section
Sharon Scully
Law and Bills Digest Section
28 August 2007
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