Please note: This section of the website details activities prior to TVET Australia Limited assuming management of the AEShareNet licensing system.
Legal Structure Options
This page retained for reference purposes. It may no longer fully reflect the status and method of operation of AEShareNet.
A conceptual or functional statement of requirements for the AEShareNet System is set out in AEShareNet Agreement Summary. There are a number of models that could be implemented to meet these requirements.
Option 1: Legislation.
AEShareNet could be established by legislation. No support for this option was evident in our stakeholder consultations, on the grounds of complexity and the time it would require to establish. It may also require complementary legislation at a State/Territory level, which would add to the complexities and delays.
Option 2: A set of conventional legal agreements.
It would be possible to establish AEShareNet as a set of legal agreements. However, this option is likely to be awkward both legally (due to privacy problems), and administratively, especially in relation to admitting new members, and there are likely to be large numbers of them in the AEShareNet system. In addition, it would not offer the advantages of a separate legal entity for purposes of administration, funds management and entering into contracts with third parties for services such as IT, dispute resolution, etc. That would mean AEShareNet infrastructure would have to be borrowed from stakeholders or contributed in kind and this could be difficult to acquit and could raise legal accountability issues and involve more complex relationships generally.
Option 3: Piggy-backing on an existing institutional (corporate) structure.
The advantage of this approach would be cost-savings involved in not setting up a new corporate structure and governance arrangements. However, the existing company documents would certainly need major alteration to incorporate the various layers of the AEShareNet structure.
There are at least three existing corporate structures which could be considered as possible hosts. The Open Learning Technology Corporation (OLTC), the National Centre for Vocational Education Research (NCVER) and Australian Training Products (ATP), formerly ACTRAC Products Limited. Each of these is a company formed and owned by State, Territory and Commonwealth Ministers. Few stakeholders have suggested any natural business synergy between these organisations and AEShareNet. The piggy-backing option would diminish the capacity for an inclusive, member-owned and member-driven AEShareNet. It could also give rise to conflicts of interest and distract the host company from its core business.
Option 4: A new entity
A separate legal entity seems to be the most effective vehicle to share expenses of operation of AEShareNet between members, and to manage AEShareNet property and contractual relationships with third parties.
Three possibilities for a new legal entity were canvassed in the consultation process:
- an incorporated association;
- a co-operative society;
- a company limited by guarantee established under Corporations Law.
The first two options are rejected as possessing no strict legal advantages over the third option.
A guarantee company structure is usually employed for copyright collecting societies, for example: Australasian Performing Rights Association (APRA), Copyright Agency Limited (CAL) and VI$COPY Limited. In addition, guarantee companies have a proven record in the educational field: OLTC, NCVER and ATP being the most obvious examples relating to the VET sector.
The Constitution (Memorandum and Articles) of a company have the effect of a contract under seal between:
- the company and each member;
- the company and each eligible officer;
- a member and each other member.
A guarantee company structure would meet all four criteria identified under AEShareNet Agreement Summary: binding each member to all others, providing for legal relationships between two or more members, allowing for rules at a number of levels and providing for decision-making structures. It also has presentational advantages and is consistent with the educational and public interest objectives of AEShareNet.
Layers of AEShareNet Structure
If a guarantee company structure is chosen the AEShareNet system could be established in three layers:
- Memorandum and Articles of Association for the company, ie AEShareNet Constitution, under which the Charter is adopted;
- an AEShareNet Charter, which prescribes forms for the Profiles referred to in (iii);
- a set of Mark Profiles (defining licensing regimes in the Simple Model and a database of Member Profiles.