Part 3The Board of the Australian Curriculum, Assessment and Reporting Authority

An Act to establish the Australian Curriculum, Assessment and Reporting Authority, and for related purposes ## Part 1—Preliminary #### 1 Short title This Act may be cited as the Australian Curriculum, Assessment and Reporting Authority Act 2008. #### 2 Commencement This Act commences on the day on which it receives the Royal Assent. #### 3 Definitions In this Act: > Australian government body means: (a) the Commonwealth, a State or a Territory; or (b) an agency or authority of: (i) the Commonwealth; or (ii) a State; or (iii) a Territory. > Board means the Board of the Australian Curriculum, Assessment and Reporting Authority. > CEO means the Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority. > Chair means the Chair of the Board. > Charter means the charter of the Australian Curriculum, Assessment and Reporting Authority as determined from time to time by the Ministerial Council. > Deputy Chair means the Deputy Chair of the Board. > Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013. > member means a member of the Board and includes the Chair and the Deputy Chair. > Ministerial Council means a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to education. > personal information has the same meaning as in section 6 of the Privacy Act 1988. > State or Territory Education Minister means the Minister representing the State or Territory concerned on the Ministerial Council. #### 4 Constitutional operation of this Act Without limiting its effect apart from this section, this Act also has the effect it would have if the powers and functions of the Australian Curriculum, Assessment and Reporting Authority were confined to powers and functions that were to be exercised and performed: (a) in so far as it is appropriate for those powers and functions to be exercised and performed by the Australian Curriculum, Assessment and Reporting Authority on behalf of the Government of the Commonwealth as the national Government of Australia; and (b) for purposes for which it is appropriate for the Parliament, as the national Parliament of Australia, to authorise the Australian Curriculum, Assessment and Reporting Authority to exercise powers and perform functions; and (c) in relation to expenditure of money that is available for the purposes of the Australian Curriculum, Assessment and Reporting Authority in accordance with an appropriation made by the Parliament; and (d) for the purposes of providing benefits to students; and (e) in relation to trade and commerce with other countries, among the States, between Territories or between a Territory and a State; and (f) in relation to postal, telegraphic, telephonic, and other like services; and (g) in relation to the collection of statistics; and (h) in relation to external affairs; and (i) in relation to a Territory; and (j) in relation to the executive power of the Commonwealth; and (k) in relation to matters incidental to the execution of any of the legislative powers of the Parliament or the executive power of the Commonwealth. ## Part 2—Australian Curriculum, Assessment and Reporting Authority #### 5 Establishment (1) The Australian Curriculum, Assessment and Reporting Authority is established by this section. (2) The Australian Curriculum, Assessment and Reporting Authority: (a) is a body corporate; and (b) must have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued. > Note: The Public Governance, Performance and Accountability Act 2013 applies to the Australian Curriculum, Assessment and Reporting Authority. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources. (3) The seal of the Australian Curriculum, Assessment and Reporting Authority is to be kept in such custody as the Board directs, and is not to be used except as authorised by the Board. (4) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of the Australian Curriculum, Assessment and Reporting Authority appearing on a document; and (b) presume that the document was duly sealed. #### 6 Functions The functions of the Australian Curriculum, Assessment and Reporting Authority are to: (a) develop and administer a national school curriculum, including content of the curriculum and achievement standards, for school subjects specified in the Charter; and (b) develop and administer national assessments; and (c) collect, manage and analyse student assessment data and other data relating to schools and comparative school performance; and (d) facilitate information sharing arrangements between Australian government bodies in relation to the collection, management and analysis of school data; and (e) publish information relating to school education, including information relating to comparative school performance; and (f) provide school curriculum resource services, educational research services and other related services; and (g) provide information, resources, support and guidance to the teaching profession; and (h) perform such other functions that are conferred on it by, or under, this Act or any other Commonwealth Act; and (i) perform such other functions that are ancillary or incidental to the functions mentioned in the preceding paragraphs. #### 7 Considerations governing the performance of functions (1) The Australian Curriculum, Assessment and Reporting Authority must perform its functions and exercise its powers in accordance with any directions given to it by the Ministerial Council in writing. > Note: For how directions are given see: section 42\. For directions relating to reporting requirements see: subsection 43(3). (2) Directions under subsection (1) must not be inconsistent with: (a) this Act or the regulations under this Act; or (b) the Public Governance, Performance and Accountability Act 2013, or any rules or other instruments made under that Act. (3) The Australian Curriculum, Assessment and Reporting Authority must also perform its functions and exercise its powers in accordance with the Charter. (4) A direction given by the Ministerial Council under subsection (1) is not a legislative instrument. (5) If the Charter is determined by the Ministerial Council in writing, the Charter is not a legislative instrument. #### 8 Powers (1) The Australian Curriculum, Assessment and Reporting Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) The Australian Curriculum, Assessment and Reporting Authority’s powers include, but are not limited to, the following powers: (a) to enter into contracts; (b) to accept gifts, devises, bequests and assignments (whether on trust or otherwise); (c) to do anything incidental to any of its functions. #### 9 Charging of fees (1) The Australian Curriculum, Assessment and Reporting Authority may charge fees for things done in performing its functions. (2) A fee must not be such as to amount to taxation. #### 10 Privileges and immunities of the Crown The Australian Curriculum, Assessment and Reporting Authority does not have the privileges and immunities of the Crown in right of the Commonwealth. ## Part 3—The Board of the Australian Curriculum, Assessment and Reporting Authority ### Division 1—The Board #### 11 Establishment The Board of the Australian Curriculum, Assessment and Reporting Authority is established by this section. #### 12 Role (1) The Board is responsible for ensuring the proper and efficient performance of the Australian Curriculum, Assessment and Reporting Authority’s functions. (2) The Board has power to do all things necessary or convenient to be done for or in connection with the performance of its duties. (3) All acts and things done in the name of, or on behalf of, the Australian Curriculum, Assessment and Reporting Authority by the Board, or with the authority of the Board, are taken to have been done by the Australian Curriculum, Assessment and Reporting Authority. (4) If a function or power of the Australian Curriculum, Assessment and Reporting Authority is dependent on the opinion, belief or state of mind of the Australian Curriculum, Assessment and Reporting Authority in relation to a matter, the function or power may be exercised upon the opinion, belief or state of mind of a person or body acting as mentioned in subsection (3) in relation to that matter. #### 13 Membership The Board consists of the following members: (a) the Chair of the Board; (b) the Deputy Chair of the Board; (c) one member nominated by the Minister; (d) one member nominated by: (i) the National Catholic Education Commission; or (ii) if the Commission ceases to exist—a similar body prescribed by the regulations for the purposes of this subparagraph; (e) one member nominated by: (i) the Independent Schools Council of Australia; or (ii) if the Council ceases to exist—a similar body prescribed by the regulations for the purposes of this subparagraph; (f) 8 members, each of whom is nominated by a different State or Territory Education Minister. #### 14 Appointment of members (1) A member of the Board is to be appointed by the Minister by written instrument. > Note: A member of the Board is eligible for re‑appointment: see section 33AA of the Acts Interpretation Act 1901. (2) The Minister can only make the appointment if: (a) the Ministerial Council has agreed to the appointment of the person; and (b) the Ministerial Council has agreed that the appointment of the person would ensure that the members of the Board collectively possess an appropriate balance of professional expertise in: (i) matters relating to school curriculum; and (ii) school assessment and data management; and (iii) analysis and reporting in relation to school performance; and (iv) financial and commercial matters in relation to the management of educational organisations; and (v) corporate governance; and (c) if the person is required to be nominated for the appointment as mentioned in paragraph 13(c), (d), (e) or (f)—the person has been so nominated. (3) A member holds office on a part‑time basis. (4) A member holds office for the period specified in the instrument of appointment. The period must not exceed 3 years. (5) A person must not be appointed for a period if the sum of: (a) that period; and (b) any periods of previous appointment of the person as a member; exceeds 6 years. #### 15 Acting in positions (1) The Deputy Chair is to act as the Chair: (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Chair: (i) is absent from duty or from Australia; or (ii) is, for any reason, unable to perform the duties of the office. > Note: For rules that apply to persons acting as the Chair, see section 33A of the Acts Interpretation Act 1901. (4) The Minister may, by written instrument, appoint a member to act as the Deputy Chair: (a) during a vacancy in the office of Deputy Chair (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Deputy Chair: (i) is acting as the Chair; or (ii) is absent from duty or from Australia; or (iii) is, for any reason, unable to perform the duties of the office. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. #### 16 Remuneration of members (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations. (2) A member is to be paid the allowances that are prescribed by the regulations. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 17 Leave of members (1) The Minister may grant the Chair leave of absence on the terms and conditions that the Minister determines. (2) The Chair may grant leave of absence to any other member on the terms and conditions that the Chair determines. (3) The Chair must notify the Minister if the Chair grants to a member leave of absence for a period that exceeds 6 months. #### 18 Resignation of members (1) A member may resign his or her appointment by giving the Minister a written resignation. (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day. #### 19 Termination of appointment (1) The Minister may terminate the appointment of a member for misbehaviour or physical or mental incapacity. (2) The Minister must terminate the appointment of a member if: (a) the member: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or (c) the member is absent, except on leave of absence, from 3 consecutive meetings of the Board. > Note: The appointment of a member may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials). #### 20 Other terms and conditions of members A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister. ### Division 2—Board Procedures #### 21 Meetings (1) The Chair must convene such meetings of the Board as are, in his or her opinion, necessary for the efficient conduct of its affairs. (2) The quorum for a meeting is 9 members. (3) However, if: (a) a member is required by rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 not to be present during the deliberations, or to take part in any decision, of the Board with respect to a particular matter; and (b) when the member leaves the meeting concerned there is no longer a quorum present; those remaining members constitute a quorum for the purposes of any deliberation or decision at that meeting with respect to that matter. (4) A question arising at a meeting of the Board is to be decided by a majority of the votes of the members present and voting. (5) The Chair must preside at all meetings at which he or she is present. (6) If the Chair is not present at a meeting the Deputy Chair, if present, must preside at the meeting. (7) If neither the Chair nor the Deputy Chair is present at a meeting the members present must elect one of their number to preside at the meeting. (8) At a meeting, the presiding member has a deliberative vote and, in the event of an equality of votes, has a casting vote. (9) The Board must keep a record of any decisions made at a meeting. (10) Subject to this Act and the Public Governance, Performance and Accountability Act 2013, the Board may regulate the conduct of its meetings as it thinks fit. #### 22 Decisions without meetings (1) The Board is taken to have made a decision at a meeting if: (a) without a meeting, a majority of the members entitled to vote on the proposed decision indicate agreement with the decision; and (b) that agreement is indicated in accordance with the method determined by the Board under subsection (2); and (c) all the members were informed of the proposed decision, or reasonable efforts were made to inform all the members of the proposed decision. (2) Subsection (1) applies if the Board: (a) has determined that it may make decisions of that kind without a meeting; and (b) has determined the method by which members are to indicate agreement with proposed decisions. (3) For the purposes of paragraph (1)(a), a member is not entitled to vote on a proposed decision if the member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Board. (4) The Board must keep a record of decisions made in accordance with this section. ## Part 4—Chief Executive Officer, staff and committees ### Division 1—Chief Executive Officer #### 23 Establishment There is to be a Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority. #### 24 Role (1) The CEO is responsible for the day‑to‑day administration of the Australian Curriculum, Assessment and Reporting Authority. (2) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties. (3) The CEO is to act in accordance with any policies determined, and any directions given, by the Board. (4) All acts and things done in the name of, or on behalf of, the Australian Curriculum, Assessment and Reporting Authority by the CEO, or with the authority of the CEO, are taken to have been done by the Australian Curriculum, Assessment and Reporting Authority. (5) If a function or power of the Australian Curriculum, Assessment and Reporting Authority is dependent on the opinion, belief or state of mind of the Australian Curriculum, Assessment and Reporting Authority in relation to a matter, the function or power may be exercised upon the opinion, belief or state of mind of a person or body acting as mentioned in subsection (4) in relation to that matter. (6) If a policy or direction under subsection (3) is in writing, the policy or direction is not a legislative instrument. #### 25 Appointment (1) The CEO is to be appointed by the Board by written instrument after consultation with the Minister. > Note: The CEO is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901. (2) The CEO holds office on a full‑time basis. (3) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 3 years. (4) The CEO must not be a member of the Board. #### 26 Acting appointments The Board may, after consultation with the Minister, by written instrument appoint a person to act as the CEO: (a) during a vacancy in the office of the CEO (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the CEO: (i) is absent from duty or from Australia; or (ii) is, for any reason, unable to perform the duties of the office. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. #### 27 Other employment (1) The CEO must not engage in paid employment outside the duties of the CEO’s office without the Chair’s approval. (2) The Chair must notify the Minister of any approval given under subsection (1). #### 28 Remuneration (1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed by the regulations. (2) The CEO is to be paid the allowances that are prescribed by the regulations. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 29 Leave (1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Chair may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chair determines. (3) The Chair must notify the Minister if the Chair grants to the CEO leave for a period that exceeds one month. #### 30 Disclosure of interests (1) A disclosure by the CEO under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister and the Board. (2) Subsection (1) applies in addition to any rules made for the purposes of that section. (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the CEO is taken not to have complied with section 29 of that Act if the CEO does not comply with subsection (1) of this section. #### 31 Resignation (1) The CEO may resign his or her appointment by giving the Chair a written resignation. (2) The resignation takes effect on the day it is received by the Chair or, if a later day is specified in the resignation, on that later day. (3) If the CEO resigns under this section, the Chair must notify the Minister of the resignation. #### 32 Termination (1) The Board may terminate the appointment of the CEO for misbehaviour or physical or mental incapacity. (2) The Board may terminate the appointment of the CEO if the Board is satisfied that the performance of the CEO has been unsatisfactory for a significant period of time. (3) The Board must terminate the appointment of the CEO if: (a) the CEO: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (c) the CEO engages, except with the Chair’s approval, in paid employment outside the duties of his or her office; or (d) the CEO fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section. (4) If the Board terminates the appointment of the CEO, the Board must notify the Minister of the termination. #### 33 Other terms and conditions The CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Board. ### Division 2—Staff #### 34 Staff (1) The Australian Curriculum, Assessment and Reporting Authority may employ such persons as it considers necessary for the performance of its functions and the exercise of its powers. (2) An employee is to be employed on the terms and conditions that the Australian Curriculum, Assessment and Reporting Authority determines in writing. ### Division 3—Committees #### 35 Committees of the Australian Curriculum, Assessment and Reporting Authority (1) The Australian Curriculum, Assessment and Reporting Authority may constitute committees for the purpose of assisting it in the performance of its functions. (2) A committee may be constituted: (a) wholly by members of the Board; or (b) wholly by persons who are not members of the Board; or (c) partly by members of the Board and partly by other persons. (3) The Australian Curriculum, Assessment and Reporting Authority may determine: (a) the manner in which a committee is to perform its functions; and (b) the procedure to be followed at or in relation to the meetings of a committee, including matters with respect to: (i) the convening of meetings; and (ii) the number of members of the committee who are to form a quorum; and (iii) the selection of a member of the committee to be the Chair of the committee; and (iv) the manner in which questions arising at a meeting are to be decided. (4) A committee must give the Australian Curriculum, Assessment and Reporting Authority such reports, documents and information in relation to the committee’s functions as the Australian Curriculum, Assessment and Reporting Authority requests. #### 36 Remuneration of committee members (1) If the Board decides that a member of a committee should be remunerated, that member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, that member is to be paid the remuneration that is prescribed by the regulations. (2) A member of a committee is to be paid the allowances that are prescribed by the regulations. (3) This section has effect subject to the Remuneration Tribunal Act 1973. ## Part 5—Finance #### 37 Money payable to the Australian Curriculum, Assessment and Reporting Authority (1) There is payable to the Australian Curriculum, Assessment and Reporting Authority such money as is appropriated by the Parliament for the purposes of the Australian Curriculum, Assessment and Reporting Authority. (2) The Finance Minister may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to the Australian Curriculum, Assessment and Reporting Authority. (3) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument. #### 38 Application of money by the Australian Curriculum, Assessment and Reporting Authority (1) The money of the Australian Curriculum, Assessment and Reporting Authority consists of: (a) money paid to the Australian Curriculum, Assessment and Reporting Authority under section 37; and (b) any other money paid to the Australian Curriculum, Assessment and Reporting Authority. (2) The money of the Australian Curriculum, Assessment and Reporting Authority is to be applied only: (a) in payment or discharge of the costs, expenses and other obligations incurred or undertaken by the Australian Curriculum, Assessment and Reporting Authority in the performance of its functions and the exercise of its powers; and (b) in payment of any remuneration or allowances payable under this Act. (3) Subsection (2) does not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of the Australian Curriculum, Assessment and Reporting Authority. #### 39 Taxation (1) To avoid doubt, for the purposes of section 50‑25 of the Income Tax Assessment Act 1997, the Australian Curriculum, Assessment and Reporting Authority is taken to be a public authority constituted under an Australian law. > Note: This means the Australian Curriculum, Assessment and Reporting Authority is exempt from income tax. (2) The Australian Curriculum, Assessment and Reporting Authority is not subject to taxation under a law of a State or Territory, if the Commonwealth is not subject to the taxation. ## Part 6—Other matters #### 40 Information collection, use and disclosure (1) Personal information must not be collected by the Australian Curriculum, Assessment and Reporting Authority unless the collection is necessary for, and directly related to, any of the following purposes: (a) conducting research relating to the national school curriculum; (b) assisting government to formulate policies in relation to education matters; (c) formulating national reports consisting of aggregated data on school performance. (2) The use of personal information collected by the Australian Curriculum, Assessment and Reporting Authority in accordance with subsection (1) or lawfully disclosed to the Australian Curriculum, Assessment and Reporting Authority is taken to be authorised by this Act for the purposes of Australian Privacy Principle 6 if the use is necessary for, and directly related to, any of the purposes mentioned in that subsection. (3) The disclosure of personal information by the Australian Curriculum, Assessment and Reporting Authority is taken to be authorised by this Act for the purposes of Australian Privacy Principle 6 if: (a) the disclosure is made to a person or body that is prescribed by the regulations; and (b) the disclosure is necessary for, and directly related to, the purposes mentioned in subsection (1). > Note: Australian Privacy Principle 6 applies to further disclosures of the personal information #### 41 Delegation (1) The Minister may, by writing, delegate any or all of the Minister’s functions or powers under this Act to: (a) the Secretary of the Department; or (b) an SES employee in the Department. > Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901. (2) In performing functions and exercising powers under the delegation, the delegate must comply with any directions of the Minister. > Note: See sections 34AA to 34A of the Acts Interpretation Act 1901. (3) The Chair may, by writing, delegate any or all of the Chair’s functions or powers to another member of the Board. (4) In performing functions and exercising powers under the delegation, the delegate must comply with any directions of the Chair. #### 42 How Ministerial Council gives directions etc. The Ministerial Council is to give a direction, an approval or a refusal for the purposes of a provision of this Act by resolution of the Council passed in accordance with the procedures determined by the Council. #### 43 Reporting requirements (1) The Chair must prepare and give to the Ministerial Council a report relating to a financial year on or before: (a) 30 September after the end of that year; or (b) if the Minister specifies a later time—that time. (2) The report must include: (a) particulars of the activities of the Australian Curriculum, Assessment and Reporting Authority during that financial year to the extent they relate to the Charter; and (b) if the Ministerial Council gives a direction under subsection 7(1) requiring the report to include any other information relating to the performance of the Australian Curriculum, Assessment and Reporting Authority’s functions—that information. (3) However, information required in a direction under subsection 7(1) must not include any personal information. #### 43A Corporate plans Subsection 35(3) of the Public Governance, Performance and Accountability Act 2013 (which deals with the Australian Government’s key priorities and objectives) does not apply to a corporate plan prepared by the Board. #### 44 Review of role and functions (1) The Minister must cause a review of the Australian Curriculum, Assessment and Reporting Authority’s ongoing role and functions to be conducted. (2) The review must: (a) start 6 years after the commencement of this section; and (b) be completed within 6 months. (3) The Minister must cause a written report about the review to be prepared. (4) The Minister must cause a copy of the report to be laid before each House of Parliament within 15 sitting days after the Minister receives the report. #### 45 Regulations The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.