House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Education, the Honourable Julia Gillard MP)

Schedule 2 - Date of effect of approval of providers

Higher Education Support Act 2003

Item 1 - At the end of subsection 16-5(3)

Inserts at the end of subsection 16-5(3) the words "or the notice of the provider's approval ceases to have effect under Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003 ".

This amendment has the effect that if the notice of a higher education provider's approval ceases to have effect as a result of disallowance by Parliament, in accordance with Part 5 of the Legislative Instruments Act 2003 , the body ceases to be a higher education provider.

Item 2 - Subsection 16-55(2)

Repeals and substitutes subsection 16-55(2) to provide that the Minister's decision to approve a body corporate as a higher education provider will take effect when the notice of approval takes effect in accordance with the Legislative Instruments Act 2003 . This amendment also includes a note stating that section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.

Item 3 - At the end of section 22-1

Inserts new subsection 22-1(c). This is a consequential amendment relating to Amendment 4.

Item 4 - At the end of Division 22

Inserts new Subdivision 22-E. New Subdivision 22-E includes new section 22-45 which explains the effect of a higher education provider's notice of approval ceasing to have effect under the Legislative Instruments Act 2003 . Subsection 22-45(1) makes clear that the provisions of section 22-45 will apply if a decision of the Minister to approve a body corporate as a higher education provider has taken effect, and the body ceases to be approved as a higher education provider because the notice of the approval has ceased to have effect under Part 5 of the Legislative Instruments Act 2003 .

Subsection 22-45(2) clarifies that the cessation of a body as a higher education provider will not:

(i)

affect the operation of the Act, or any instrument made under the Act, in relation to the body before the cessation; or

(ii)

affect anything duly done or suffered in relation to the body before the cessation; or

(iii)

affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or

(iv)

affect any penalty, forfeiture or punishment incurred in respect of the body having been a higher education provider; or

(v)

affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

This amendment is largely modelled on section 15 of the Legislative Instruments Act 2003 to the extent that, notwithstanding the cessation of the notice of approval, the cessation will not impact on any rights or responsibilities that have already accrued.

Item 5 - At the end of subclause 5(2) of Schedule 1A

Inserts the words "or the notice of the VET provider's approval ceases to have effect under Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003 ".

This amendment has the effect that if the notice of a VET provider's approval ceases to have effect as a result of disallowance by Parliament, in accordance with Part 5 of the Legislative Instruments Act 2003 , the body ceases to be a VET provider.

Item 6 - Subclause 12(2) of Schedule 1A

Repeals and substitutes subclause 12(2) of Schedule 1A to provide that the Minister's decision to approve a body corporate as a VET provider will take effect when the notice of approval takes effect in accordance with the Legislative Instruments Act 2003 . This amendment also includes a note stating that section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.

Item 7 - At the end of clause 29 of Schedule 1A

Inserts new subclause 29(c) in Schedule 1A. This is a consequential amendment relating to Amendment 8.

Item 8 - At the end of Division 5 of Schedule 1A

Inserts new Subdivision 5-E at the end of Division 5 of Schedule 1A. New Subdivision 5-E includes new clause 39A which explains the effect of a VET provider's notice of approval ceasing to have effect under the Legislative Instruments Act 2003 . Subclause 39A(1) clarifies that the provisions of clause 39A will apply if a decision of the Minister to approve a body corporate as a VET provider has taken effect, and the body ceases to be approved as a VET provider because the notice of the approval has ceased to have effect under Part 5 of the Legislative Instruments Act 2003 .

Subclause 39A(2) makes clear that a cessation of a body as a VET provider will not:

(i)

affect the operation of the Act, or any instrument made under the Act, in relation to the body before the cessation; or

(ii)

affect anything duly done or suffered in relation to the body before the cessation; or

(iii)

affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or

(iv)

affect any penalty, forfeiture or punishment incurred in respect of the body having been a VET provider; or

(v)

affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

This amendment is largely modelled on section 15 of the Legislative Instruments Act 2003 to the extent that, notwithstanding the cessation of the notice of approval, the cessation will not impact on any rights or responsibilities that have already accrued.

Item 9 - Application and transitional provisions

Subitem 9(1) is an application provision which specifies that the amendments made by new Schedule 2 apply to decisions to approve bodies corporate as higher education providers or VET providers which were made on or after commencement of Schedule 2.

This application provision will also apply to decisions to approve bodies corporate as higher education providers or VET providers that were made before the commencement of Schedule 2, except for the following decisions:

(i)

any decisions which took effect before commencement of Schedule 2; and

(ii)

any decisions for which the notice of approval ceased to have effect under Part 5 of the Legislative Instruments Act 2003 before commencement of Schedule 2.

Subitem 9(2) is a transitional provision which stipulates that any decision to approve a body corporate as a higher education provider or VET provider will take effect on commencement of Schedule 2 as long as the notice of approval was registered under the Legislative Instruments Act 2003 before commencement of Schedule 2 and, apart from this subitem, the decision would have taken effect prior to commencement of Schedule 2 because of the amendments made by this Schedule applying as described in subitem 9(1).