Explanatory Memorandum
(Circulated by authority of the Minister for Education, Science and Training, the Honourable Dr Brendan Nelson MP)Schedule 3 - Technical amendments relating to legislative instruments
Schedule 3 makes a number of technical amendments to the Acts listed as a result of the commencement of the Legislative Instruments Act 2003 on 1 January 2005.
Higher Education Funding Act 1988
Items 1, 2 and 3 - Subsection 23(1E) (note); subsection 98AA(2) (note 2) and subsection 98Q(1) (note 2)
Makes technical amendments to subsections 23(1E), 98AA(2) and 98(Q) to change references to instruments being 'disallowable' under the Acts Interpretation Act 1901 to instruments being legislative instruments in accordance with the Legislative Instruments Act 2003 .
Items 4 and 5 - Subsection 98S(1) (note 1 and note 2)
Item 4 repeals note 1 under subsection 98S(1) which provides that a determination made by the Minister must be in writing. Item 5 replaces note 2 to make it clear that a determination made under subsection 98S(1) is a legislative instrument under the Legislative Instruments Act 2003 .
Section 110 provides that a number of instruments made under various sections of the Act are disallowable instruments in accordance with the Acts Interpretation Act 1901 . Item 6 amends section 110 to make it clear that the instruments are legislative instruments for the purposes of the Legislative Instruments Act 2003 .
Higher Education Support Act 2003
Subsection 16-55(1) provides that a notice of approval of a body as a higher education provider under paragraph 16-50(1)(b) of the Act is a disallowable instrument for the purposes of the Acts Interpretation Act 1901 . Item 7 replaces subsection 16-55(1) with a provision that makes it clear that such a notice is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
Item 8 - Paragraph 16-55(2)(a)
Deletes a reference to subsection 48(4) of the Acts Interpretation Act 1901 and replaces it with a reference to subsection 42(1) of the Legislative Instruments Act 2003 as a consequence of the amendment made by item 7.
Subsection 22-35(1) provides that a notice of revocation of a body's status as a higher education provider under subsection 22-20(3) is a disallowable instrument. Item 9 amends this section to make it clear that such a notice is a legislative instrument under the Legislative Instruments Act 2003 .
Item 10 - Paragraph 22-35(2)(a)
Deletes a reference to subsection 48(4) of the Acts Interpretation Act 1901 and replaces it with a reference to subsection 42(1) of the Legislative Instruments Act 2003 as a consequence of the amendment made by item 9.
Section 36-15 deals with when a higher education provider must not advise a person that he or she is a Commonwealth supported student. Subsection 36-15(2) allows the Minister to determine (by disallowable instrument) that a specified course of study is not one in which students may be enrolled as Commonwealth supported students. Item 11 amends this section to make it clear that such a determination by the Minister is a legislative instrument.
Repeals subsection 36-15(5) as a consequence of the amendment made by item 11.
Items 13 and 14- Subsections 41-50(1) and 41-50(2)
Subsection 41-50(1) provides that the Minister must prepare a list setting out the maximum amounts of all grants which may be paid for the purposes of grant set out in section 41-10 (Other Grants). Subsection 41-50(2) provides that the list is a disallowable instrument. Item 13 amends subsection 41-50(1) to make it clear that the list is a legislative instrument. Item 14 repeals subsection 41-50(2) as a consequence of the amendment made by item 13.
Items 15 and 16- Subsections 104-3(1) and 104-3(4)
Section 104-3 sets out the consequences of a failure by Open Learning Australia to comply with the FEE-HELP Guidelines. Subsection 104-3(1) allows the Minister to make a determination that there is no entitlement to FEE-HELP assistance for a specified year for units of study provided by Open Learning Australia. Subsection 104-3 provides that such a determination is a disallowable instrument. Item 15 amends subsection 104-3(1) to make it clear that a determination under that subsection is a legislative instrument and item 16 repeals subsection 104-3(4).
Items 17 and 18 - Subsections 104-10(2) and 104-10(5)
Section 104-10 sets out the course requirements for FEE-HELP assistance for a unit of study. Subsections 104-10(2) and 104(5) have the effect of allowing the Minister to make a determination by disallowable instrument that a specified course is one for which FEE-HELP assistance is unavailable. Item 17 amends subsection 104-10(2) to make it clear that such a determination is a legislative instrument and item 18 repeals subsection 104-10(5) as a consequence.
Items 19 and 20 - Subsections 238-10(1) and 238-10(2)
Section 238-10 allows the Minister to make, via disallowable instrument, guidelines dealing with a number of matters provided for in the Act. Item 19 amends subsection 238-10(1) to make it clear that guidelines are legislative instruments and item 20 repeals subsection 238-10(2) as a consequence of the amendment made by item 19.
Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003
Items 21 and 22 - Subitem 4(1) and 4(3) of Schedule 1
Subitems 4(1) and 4(3) of Schedule 1 provide that the Minister may, by disallowable instrument, make guidelines providing for matters required or permitted, or necessary or convenient to be provided in order to give effect to Schedule 1, including dealing with when a person is taken to have commenced or completed a course of study. Item 21 amends subitem 4(1) to make it clear that the guidelines are a legislative instrument and item 22 repeals subitem 4(3) as a consequence of the amendment made by item 21.
Items 23 and 24 - Subitems 8(1) and 8(3) of Schedule 1
Subitems 8(1) and 8(3) of Schedule 1 provide that the Minister may, by disallowable instrument, make guidelines providing for matters required or permitted, or necessary or convenient to be provided in order to give effect to Schedule 1, including dealing with when a person is taken to have commenced or completed a course of study. Item 23 amends subitem 4(1) to make it clear that the guidelines are a legislative instrument and item 24 repeals subitem 4(3) as a consequence of the amendment made by item 23.
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