Technical and Further Education Act 1975

The Act defines several key concepts. "Chief Executive Officer" means the person holding or acting in the position of CEO of the Department (section 4(1)). "College" is an educational institution at which technical and further education is provided pursuant to the Act. "Council" means a college council established by the Minister under Part 4. "Department" means the administrative unit of the Public Service responsible for administering the Act. "Employing authority" is, unless the Governor designates otherwise by proclamation, the Chief Executive Officer; where the Governor so designates, a designated person or office-holder becomes the employing authority (section 4(1) and (4)). "Officer" means an officer appointed under section 15. "SAET" means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014. "Technical and further education" is defined broadly as instruction or training in any academic, vocational or practical discipline, with the exceptions listed in section 5. The Act also defines "effective service" (section 4(2)): it comprises the period of continuous service as an officer plus any other period that the employing authority determines to be part of effective service, and excludes any period the employing authority determines not to be effective service. The employing authority may determine these matters by instrument in writing for specified officers or classes (section 4(3)). A significant drafting feature is section 4(5): if the Chief Executive Officer is the employing authority, provisions that require a matter to be referred to the employing authority by the CEO, or require the CEO to make a recommendation to the employing authority, are taken to allow the CEO in his or her capacity as employing authority to act without an actual referral or recommendation. This avoids procedural duplication where the CEO and employing authority are the same person. The concept of "officer" is central: officers are appointed under section 15 and hold a distinct statutory employment status. The Act also distinguishes between "officers" and "other persons" employed under section 39AAB, and employees in the Department. Part 3 provides for long service leave accrual (section 19) and the taking of leave (section 20), recognising previous employment (section 23) and future employment (section 24). The retiring age provision (section 25) simply states an officer may retire on or after age 55, without imposing a mandatory retirement. The disciplinary regime (section 26) identifies five grounds for disciplinary action: contravening the Act or a lawful direction, negligence or incompetence, absence without proper cause, and disgraceful or improper conduct.

The Act affects a wide range of actors. The Minister is the central figure with general administration, control over officers and employees, and extensive proprietary and commercial powers (sections 6, 7 and 9). The Chief Executive Officer is responsible for operational management, efficiency, and standards; he or she must report annually to the Minister and delegate only with ministerial consent (sections 12, 13 and 14). Officers appointed under section 15 are the core teaching and related staff; their employment is governed by the Act, including appointment (permanent or temporary, full-time or part-time, on probation up to two years), termination, long service leave, discipline and retirement. Other staff may be employed under section 39AAB as "other persons" additional to officers and Department employees, subject to ministerial direction but with a prohibition on ministerial direction concerning appointment, transfer, remuneration, discipline or termination of a particular person (section 39AAB(3)). Departmental employees are also affected. College councils (Part 4) are established by the Minister for individual colleges; they are bodies corporate holding property on behalf of the Crown, with borrowing powers requiring Treasurer approval and subject to Chief Executive Officer instructions, and they must keep proper accounts and provide annual returns to the CEO (sections 29, 30, 32, 32A). Community bodies may receive assistance from the Minister to make land, buildings, equipment or facilities available to colleges (section 9(5)(b)). Students are affected indirectly: they benefit from the establishment of colleges and courses, and the Act contemplates the making of regulations concerning fees, scholarships, student discipline and student associations (section 43). Persons on college premises are affected by section 40 (requirement to leave on request) and section 40A (offensive or insulting behaviour). The South Australian Employment Tribunal is given jurisdiction to review certain termination and disciplinary decisions under sections 18A and 26, and may order reinstatement. The Attorney-General's Department and Treasury may become involved through approval of borrowing and grants. The Australian Education Union is referenced in section 18(1)(b) regarding nomination of panel members for SAET proceedings.

The Act imposes duties and confers rights on multiple parties. The Chief Executive Officer must maintain proper standards of efficiency and competency among officers and employees, ensure effective management, and secure the highest practicable standards for students (section 12(1)). The CEO must also cause an annual report on operations to be presented to the Minister by 31 March each year (section 14). The Minister has a duty to lay the annual report before each House of Parliament within six sitting days (section 14(2)). The CEO may delegate powers, functions or duties with the Minister's consent, and further delegation is possible if the instrument provides (section 13). Officers have the right to apply to SAET for review of certain determinations or decisions under Division 2 of Part 3 (termination, retrenchment, transfer or retirement: section 18A) and under Division 5 (disciplinary action: section 26(4)). SAET may revoke the determination or decision and order reinstatement (sections 18A(2) and 26(5)). In disciplinary matters, the CEO may impose reprimand, fine up to one week's salary, reduction in classification, or suspension without pay for up to one year, or recommend dismissal to the employing authority (section 26(2)). An officer may also be suspended with pay pending resolution of allegations (section 27). Officers are entitled to long service leave accruing at 63 days after seven years' effective service, then 0.75 day per subsequent month; leave may be taken after ten years (or seven with CEO permission), and on half-salary doubling the period (sections 19 and 20). Payment in lieu is available on cessation after at least seven years' effective service, or on death (section 21). Officers who are part-time are entitled to remuneration that is the same percentage of full-time rates as their time fraction, applying to salary notwithstanding any Act, contract or award to the contrary, and to allowances subject to express provisions (section 39A). College councils must keep proper accounts and provide annual financial returns to the CEO within three months after each calendar year (sections 32 and 32A). The CEO may also require further or fuller returns (section 32A(3)). Councils must not acquire or dispose of real property without the Minister's written consent (section 29(2)). The Minister may make grants or loans to councils on any terms (section 31).

Offences under the Act are summary offences and require the Minister's written consent before a prosecution may be commenced (section 41). The Act creates two specific offences. Section 40 makes it an offence for a person who is on college premises without lawful authority to fail to leave when lawfully requested; the penalty is a Division 9 fine (currently $500 maximum fine, expiation fee $100). The request is lawful if made by an officer, employee, council member, a person engaged for property protection, or a person authorised by the CEO, and the requester must advise the person of their authorisation (section 40(2)). Section 40A makes it an offence to behave in an offensive or insulting manner to an officer or employee acting in the course of duty, or to a person exercising the power under section 40 to request removal from premises; penalty is also a Division 9 fine. Section 41(3) provides that an apparently genuine document purporting to be under the Minister's hand and certifying consent to proceedings is proof of consent in the absence of proof to the contrary. Section 40(3) provides a similar evidentiary certificate for CEO authorisation to request persons to leave. In addition to these criminal sanctions, the Act provides for internal disciplinary action against officers under section 26. Where the CEO finds sufficient cause for disciplinary action (grounds include contravention of the Act or a lawful direction, negligence, absence, disgraceful or improper conduct), the CEO may reprimand, impose a fine not exceeding one week's salary, reduce classification, or suspend without pay for up to one year; or recommend dismissal to the employing authority (section 26(2) and (3)). Fines may be deducted from salary (section 26(6)). Suspension under section 27 may be with pay unless the employing authority determines otherwise; if pay is withheld and guilt is not established by due process, the officer receives the salary they would have been entitled to (section 27(3) and (4)). Regulations made under section 43 may impose fines not exceeding a Division 10 fine ($200 maximum, expiation fee $75) for regulatory offences (section 43(4)). Enforcement of regulatory provisions may include evidentiary presumptions, for example in relation to vehicle offences on college grounds (section 43(2)(ia) and (ib)).

Section 39AA expressly provides that the Act does not exclude the operation of the Industrial and Employee Relations Act 1994 in relation to officers or persons employed under the Act. This ensures that industrial relations legislation applies concurrently, and the provision is stated to be retrospective in effect ("will be taken never to have excluded"). The Act interacts closely with the South Australian Employment Tribunal Act 2014. Section 18 establishes panels of supplementary panel members for SAET: one panel of employees in the Department nominated by the Minister, and one panel of officers nominated by the Australian Education Union following regulated elections. SAET sits with members from both panels in reviews under section 18A if the President so determines (section 18(2)). Section 18A gives officers a right to apply to SAET for review of termination, retrenchment, transfer or retirement decisions under Division 2 of Part 3. Section 26(4) gives officers a similar right to apply to SAET for review of disciplinary determinations or dismissal decisions. SAET may revoke a determination and order reinstatement, supplementing section 30 of the SAET Act (sections 18A(2) and 26(5)). The Act expressly excludes its application to certain types of education by section 5: government schools under the Education and Early Childhood Services (Registration and Standards) Act 2011; primary or secondary education at non-college schools where a majority of students are enrolled full-time; universities established by statute; pre-school instruction; and theological colleges, seminaries or religious bodies. This prevents overlap and defines the boundaries of TAFE. The Act's Schedule provides that references in other Acts or instruments to "officer of the teaching service" under this Act are to be construed as references to an officer. This ensures continuity of terminology after amendments that removed the "teaching service" concept. The Land Acquisition Act 1969 is engaged by section 9(7), which allows the Minister to acquire land subject to that Act for TAFE purposes. The Act also contemplates interaction with the Fair Work Act 1994 through transitional provisions in the Statutes Amendment (Public Sector Employment) Act 2006, which created deeming provisions for awards and enterprise agreements when staff were transferred to new employing authorities. Superannuation arrangements are preserved by transitional provisions. The operation of the Acts Interpretation Act 1915 is relevant for the appendix on divisional penalties and expiation fees.

The Act was originally enacted as the Further Education Act 1975 (assented 4 March 1976, commenced 29 April 1976, with Part 5 commencing 3 November 1977). It was renamed the Technical and Further Education Act 1975 by the Further Education Act Amendment Act 1983 (No 94 of 1983) from 26 January 1984. Major amendments include: the Further Education Act Amendment Act 1979 (No 13) which inserted the definition of "effective service" and amended long service leave provisions. The Technical and Further Education Act Amendment Act 1987 (No 62) substituted sections 19-21 on long service leave, changing accrual rates and removing pro-rata entitlements for five years' service prospectively. The Technical and Further Education Act Amendment Act 1988 (No 25) substituted sections 28(3)-(5) regarding college council membership and meetings. The Technical and Further Education Act Amendment Act 1990 (No 48) substituted section 17 on incapacity of officers. The Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 (No 34) deleted references to the Teachers Salaries Board and transferred its functions. The Technical and Further Education (Miscellaneous) Amendment Act 1992 (No 7) was a major rewriting: it substituted many sections, inserted definitions for "officer", "council", and "employee" (later deleted), replaced Part 3 headings, added section 15A (termination of probationary officers), section 17A (reviews, later deleted), sections 22-24 on long service leave continuity, section 39A (part-time rates), sections 40-40A (offences), and the Schedule. The Statutes Amendment (Abolition of Compulsory Retirement) Act 1993 (No 75) amended section 25(1) to allow retirement at 55 (previously had a compulsory retirement age). The Statutes Amendment and Repeal (Common Expiation Scheme) Act 1996 (No 34) substituted section 43(4) to refer to divisional penalties. The Technical and Further Education (Industrial Jurisdiction) Amendment Act 1998 (No 35) inserted section 39AA preserving operation of industrial relations legislation. The Statutes Amendment (Public Sector Employment) Act 2006 (No 41) made extensive changes: inserted "employing authority", deleted "employee", amended sections 4, 8, 9, 13, 15-17, 21, 22, 23, 26, 27, and inserted sections 15(7), 15A(2), 16(3), 17(4), 39AAB, 39AAC (staffing arrangements). The Statutes Amendment (Public Sector Consequential Amendments) Act 2009 (No 84) substituted the definition of "Department". The Statutes Amendment (Budget 2010) Act 2010 (No 22) amended section 19(1) to delete old paragraph (c). The Education and Early Childhood Services (Registration and Standards) Act 2011 (No 46) amended section 5. The Statutes Amendment (South Australian Employment Tribunal) Act 2016 (No 63) substituted sections 18 and 18A, deleted section 17A, and inserted SAET references throughout. The South Australian Employment Tribunal (Miscellaneous) Amendment Act 2017 (No 16) further amended section 18A(2).

The Act establishes its own internal review mechanisms rather than creating a separate statutory cause of action in courts. Historically, the Act provided for an Appeal Board (originally established under section 17A, inserted by the 1992 amendments). That Board was dissolved by the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (section 142 of that Act), which transferred all rights of appeal and current proceedings to the South Australian Employment Tribunal (SAET). The pre-existing Appeal Board's decisions, directions and orders in force immediately before the relevant day (1 July 2017) were deemed to be decisions, directions and orders of SAET (transitional provision section 142(4)). Unexercised rights of appeal under former sections 17A or 26 were to be exercised as if the amending Act had been in operation before the right arose, so proceedings could be commenced before SAET rather than the Appeal Board (section 142(5)). Any proceedings before the Appeal Board immediately before the relevant day were transferred to SAET, which could receive evidence transcripts, adopt findings, and make decisions (section 142(6) and (7)). The current review rights are found in sections 18A and 26. An officer may, within 14 days after receiving notice of a determination or decision under Division 2 of Part 3 (termination, retrenchment, transfer or retirement) or under section 26 (disciplinary action, including dismissal), apply to SAET for review under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014 (sections 18A(1) and 26(4)). SAET is given additional powers beyond the general review powers in section 30 of the SAET Act: it may revoke the determination or decision and order that the officer be reinstated as an officer under section 15 (sections 18A(2) and 26(5)). The Act does not itself name any specific court cases. The regulations under section 43(2)(l) may confer a right to apply to SAET for review of administrative acts or decisions of the Minister or the Chief Executive Officer, unless the regulation declares those acts or decisions excluded from review. No such regulations are provided in the source text. Litigation under this Act would typically involve SAET reviews of employment decisions, and would be reported under the South Australian Employment Tribunal. The legislation history records the change from Appeal Board to SAET, but no case names or outcomes are mentioned.

Practitioners should be alert to several traps. Section 4(5) deems that if the Chief Executive Officer is also the employing authority, provisions requiring matters to be referred to the employing authority by the CEO, or requiring a CEO recommendation, are taken to allow the CEO to act without an actual referral or recommendation. This can create confusion where a reader expects two separate decision-makers. The definition of "employing authority" allows the Governor to designate a different person by proclamation; thus who actually employs officers may change without amendment to the Act itself (section 4(1) and (4)). Section 7(2) creates a presumption that an apparently genuine document bearing the Minister's common seal was duly affixed in the absence of proof to the contrary , a strong evidentiary shortcut. Section 40(3) provides a similar certificate for CEO authorisation of persons to request leaving premises, which must be accepted as proof in the absence of proof to the contrary. Section 41(2) requires the Minister's written consent before any prosecution for an offence against the Act. Without that consent, a prosecution is invalid. The consent is proved by an apparently genuine document (section 41(3)). Section 43(3) provides that a regulation under the Act is not invalid merely because it relates to circumstances existing before the Act's commencement , effectively permitting retrospective regulation, though limited by the scope of the regulation-making power. Section 39A concerning part-time pay rates deems the proportional salary to apply regardless of any Act or law, including contracts, awards or industrial agreements (section 39A(2)(a)). Only allowances are subject to contrary provision in an express contract, award or agreement (section 39A(2)(b)). This overrides common industrial arrangements. For long service leave, section 22 provides that re-employment within two years after service interruption (otherwise than by resignation, dismissal for misconduct or retirement on incapacity) allows continuous service counting; but re-employment after two years requires a certificate from the employing authority. This is a non-automatic step that could be overlooked by managers. Section 23 recognises previous employment in the public service, universities or other approved employment for long service leave purposes; continuity is presumed if the gap is three months or less, but gaps over three months require a declaration of "special reasons" by the employing authority (section 23(4) and (5)). Section 24 provides that transfer to other government employment preserves long service leave continuity. The discipline section (26) does not require that an officer be charged with or convicted of a criminal offence before disciplinary action can be taken for disgraceful or improper conduct (section 26(1)(e)). The suspension power (section 27) can be exercised whether or not the officer has been charged, and unless the employing authority otherwise directs, the officer is entitled to pay during suspension , meaning suspension without pay requires a positive determination. The appendix on penalties is stated to be provided for convenience only; the actual penalty is set by the Acts Interpretation Act 1915 section 28A, and the fees may change independently of this Act. The Act does not include a provision for imprisonment for offences under sections 40 or 40A (only fines). Finally, note that the Act's long title refers to "technical and further education" but the Act still retains "Further Education Act 1975" as its short title; the official short title was changed to "Technical and Further Education Act 1975" by the 1983 amendment (see legislative history: s 1 substituted by 94/1983).

Compliance obligations differ depending on the actor. For officers: they must comply with the Act and any lawful direction given under it; they must not be negligent, inefficient or incompetent, absent without proper cause, or engage in disgraceful or improper conduct (section 26(1)). Failure exposes them to disciplinary action including reprimand, fine, reduction in classification, suspension without pay, or dismissal. Officers should ensure they understand the 14-day time limit for applying to SAET for review of termination, retrenchment, transfer, retirement or disciplinary decisions (sections 18A(1) and 26(4)). Officers on probation (section 15A) have limited protections; the employing authority may terminate at any time by written determination, but if the CEO is not the employing authority, consultation is required. For the employing authority (whether CEO or designated person): in making appointments under section 15, must consult with the CEO if the employing authority is not the CEO (section 15(7)). The same consultation obligation arises for termination of probationary officers (section 15A(2)), retrenchment (section 16(3)), and employment of other persons under section 39AAB (section 39AAB(4)). The employing authority must comply with the termination notice requirements for retrenchment: at least 12 weeks' notice or salary in lieu (section 16(2)). When receiving a recommendation for dismissal from the CEO under section 26(2)(b), the employing authority must consider that recommendation before dismissing (section 26(3)). The employing authority may delegate powers under the Act by written instrument (section 39AAC). For the Chief Executive Officer: must maintain proper standards, efficiency, management and resources (section 12); must report annually (section 14); when dealing with officer incapacity (section 17), must follow a structured process of considering transfer, leave or recommendation for retirement, and before transferring to a reduced-status position or recommending retirement must be satisfied that equivalent-status transfer is not reasonably practicable. The CEO must also enforce discipline under section 26, and may suspend an officer under section 27. When making recommendations to the employing authority for retirement under section 17(1)(d), the CEO must act under that section. For college councils: they must keep proper accounts (section 32); provide annual returns within three months after each calendar year in a form approved by the CEO, detailing receipts, expenditure, money held, and debts (section 32A); must not acquire or dispose of real property without the Minister's written consent (section 29(2)); and must obtain Treasurer's approval and comply with CEO administrative instructions before borrowing money (section 30). For the Minister: must ensure annual reports are laid before Parliament (section 14(2)); may delegate powers (section 8); when establishing or closing colleges, consider public interest (section 9); when making grants or loans to councils, may set terms (section 31). For anyone: avoid offending under sections 40 and 40A by leaving college premises when lawfully requested and not behaving offensively to staff or authorised persons. The regulations (section 43) may impose additional compliance requirements, including fee payments, provision of returns, observance of discipline, and compliance with rules about vehicles on college grounds. Practitioners should monitor the regulations for specific obligations. In all cases, the Act does not exclude industrial relations legislation (section 39AA), so compliance with the Industrial and Employee Relations Act 1994 and any applicable awards or enterprise agreements remains mandatory unless overridden by a specific provision such as section 39A on part-time remuneration.