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2002-2003
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
HIGHER EDUCATION SUPPORT
(TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL
2003
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Education, Science and Training the Hon Dr
Brendan Nelson MP)
HIGHER EDUCATION SUPPORT
(TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL
2003
The Bill deals with transitional and consequential matters arising from
the enactment of the Higher Education Support Act 2003 and a number of
other matters concerning higher education.
The Bill ensures that students
who commenced their studies before 2005 and received assistance under the Higher
Education Contribution Scheme will be able to continue their studies as
Commonwealth supported students under the proposed Higher Education Support
Act 2003 until the end of 2008. Until this time, they will have student
contribution amounts under the new arrangements that are no greater than the
contributions they are required to pay under the current Higher Education
Contribution Scheme. They will also have access to HECS-HELP so that they can
defer payment of those student contribution amounts.
The Bill ensures
that students who commenced their studies before 2005 and received assistance
under the Post-graduate Education Loan Scheme will have access, under special
conditions, to the new FEE-HELP scheme until the end of 2008. The indexation of
the debts that they incur under this arrangement will be limited to changes in
the Consumer Price Index and they will continue to receive a bonus for the
voluntary repayment of these debts.
The Bill provides for accumulated
HEC debts to be converted into accumulated HECS-HELP debts on 1 June 2006. It
ensures that the calculation of accumulated HECS-HELP debts takes account of any
voluntary repayments, HEC assessment debts or amendments of HEC assessment debts
that occur after 1 June 2005.
The Bill provides that the University of
Notre Dame and Avondale College may receive funding for student places under the
new Commonwealth Grant Scheme until the end of 2008. This will ensure that the
Commonwealth makes its contribution to the cost of student places for those
students who commence their studies before 2005, as students liable to pay a
contribution under the Higher Education Contribution Scheme.
The Bill
includes a number of other minor transitional provisions related to the
commencement of the proposed Higher Education Support Act 2003. These
include matters such as the rollover of grants, merit based equity scholarships
and marginally funded places.
The Bill makes changes to the Higher
Education Funding Act 1988 as a consequence of the proposed Higher
Education Support Act 2003. It increases the expenditure limits for a
number of grants and provides for transitional assistance in respect of 2005 to
be paid to institutions which received grants in respect of 2004 under the
Higher Education Funding Act 1988. It also ends the application of
various provisions of that Act to take account of the commencement of the
proposed Higher Education Support Act 2003.
The Bill amends the
Australian National University Act 1991 and the Maritime College Act
1978. The amendments to these Acts improve the governance structures of the
Australian National University and the Australian Maritime College by altering
the composition of their Councils and the method of appointment of members to
those Councils. It inserts clauses detailing the duties of Council members,
clarifies their responsibilities and makes other minor and consequential
amendments to these Acts.
The Bill removes Marcus Oldham College from the
Higher Education Funding Act 1988 and provides for the Minister to
determine an amount of payment to be made to the College in respect of
2004.
The Bill makes a number of other minor amendments as a consequence
of the proposed Higher Education Support Act 2003.
FINANCIAL IMPACT
Total funding levels for the higher education sector in the 2004 and 2005
calendar years under the Bill are estimated to be around $4.3 billion (2004
prices).
HIGHER EDUCATION SUPPORT (TRANSITIONAL
PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2003
Clause 1 - Short title
Provides for the Act to be cited
as the Higher Education Support (Transitional Provisions and Consequential
Amendments) Act 2003.
Clause 2 -
Commencement
Subclause 2(1) inserts a three column table setting out
commencement information for various provisions in the Act. Each provision of
the Act specified in column 1 of the table commences (or is taken to have
commenced) in accordance with column 2 of the table and any other statement in
column 2 has effect according to its terms.
The table provides for
sections 1-3 of the Act to commence on the day on which it receives the Royal
Assent and for other provisions to commence on the days set out in column 2 of
the table.
Subclause 2(2) provides that column 3 of the table is for
additional information which may be added to or edited in any published version
of the Act but that information in this column is not part of the
Act.
Clause 3 - Schedule(s)
Provides that each Act that
is specified in a Schedule is amended or repealed as set out in the applicable
items in the Schedule and that any other item in a Schedule has effect according
to its terms.
4 Meanings of
expressions defined in the Higher Education Support Act
2003
Provides that expressions used in this Act that are defined
in the Higher Education Support Act 2003 have the same meanings as in
that Act, unless the contrary intention
appears.
Schedule 1 -
Transitional provisions
Part 1 -
Transitional arrangement for students under the Higher Education Contribution
Scheme
Item 1 Student contribution amounts for students under the
Higher Education Contribution Scheme
Subitem 1(1) provides that
if:
• a person is enrolled with an institution in a unit of study that
forms part of a course of study that the person started before 1 January 2005;
and
• the period over which the person is undertaking the unit ends on
or before 31 December 2008; and
• the person is a contributing student
within the meaning of Chapter 4 of the Higher Education Funding Act 1988;
and
• the course is a designated course of study within the meaning of
that Chapter; and
• the Commonwealth had, under section 57 of the
Higher Education Funding Act 1988, discharged a liability that the person
had incurred in relation to the course; and
• the person is entitled to
HECS-HELP assistance for the unit or would be entitled to HECS-HELP assistance
for the unit but for paragraph 90-1(1)(a) or (c) or paragraphs 90-1(1)(a) and
(c) of the Higher Education Support Act 2003; and
• the person
has neither discontinued his/her enrolment in the course since that
commencement (see item 2), nor completed the requirements of the
course;
then:
• if the institution is not (apart from this item)
a higher education provider, the institution is taken (for the purposes of the
application of the Higher Education Support Act 2003 in relation to the
person and the unit) to be a higher education provider; and
• if
subparagraph 1(1)(f)(ii) applies [where a person is entitled to HECS-HELP
assistance for the unit or would be entitled to HECS-HELP assistance for the
unit but for paragraph 90-1(1)(a) or (c) or paragraphs 90-1(1)(a) and (c) of the
Higher Education Support Act 2003] the person is taken (for the purposes
of that Act) to be entitled to HECS-HELP assistance for the unit;
and
• the person is taken (for the purposes of that Act) to be a
Commonwealth supported student in relation to the unit; and
• the
student contribution amount for the unit is taken (for the purposes of that Act)
not to exceed the amount that would be worked out under section 93-5 of that Act
if the maximum student contribution amount per place for the unit were worked
out under item 4.
Subitem 1(2) provides that this item does not apply if
the person has notified an appropriate officer of the institution (under
subsection 36-5(3) of the Higher Education Support Act 2003) that he/she
does not wish to be a Commonwealth supported student in relation to the
unit.
Item 2 Discontinuance of enrolments
Provides
that a person is not taken, for the purposes of subparagraph 1(1)(g)(i) [where a
person has neither discontinued his/her enrolment in the course since that
commencement nor completed the requirements of the course], to have discontinued
his/her enrolment in a course of study merely because the person has taken leave
of absence from (or has deferred) the course with the approval of the
institution with which the person is undertaking the course or the person
transfers his/her enrolment in the course to another course of study at the same
level with the same or another institution or higher education provider or
circumstances have occurred that are specified in the guidelines under item 5 as
not amounting to a discontinuance of enrolment.
Item 3 Maximum
student contribution amounts per place
Subitem 3(1) provides that if
a person to whom item 1 applies started the course of study in question before 1
January 1997, the maximum student contribution amount per place
for the unit is $2,830.
Subitem 3(2) creates a table setting out the
maximum student contribution amount per place for various funding clusters. The
table lists 12 items (column 1), a description of the funding clusters (column
2) and the maximum student contribution amount per place for each cluster
(column 3). Subitem 3(2) provides that, if a person to whom item 1 applies
started the course of study in question on or after 1 January 1997 the
maximum student contribution amount per place for the unit
is:
• if the unit is included in a funding cluster that is referred to
in the table, the amount specified in the table in relation to that funding
cluster; or
• if the unit is included in a funding cluster that has
been varied or added by the Commonwealth Grant Scheme Guidelines—the
amount specified in the guidelines under item 5 in relation to that funding
cluster.
Subitem 3(3) provides that a maximum student contribution amount
per place under this item is indexed under Part 5-6 of the Higher Education
Support Act 2003 as if it was an amount referred to in the table in section
198-5 of that Act and the first year of indexation in relation to the amount was
the year 2005.
Item 4 Guidelines
Provides that the
Minister may (in writing) make guidelines providing for matters required or
permitted by Schedule 1 to be provided or necessary or convenient to be provided
in order to carry out or give effect to the Schedule. Without limiting the
foregoing, the guidelines may provide for when a person is taken to have
commenced a course of study and when a person is taken to have completed the
requirements of a course of study. Any such guidelines have effect accordingly
for the purposes of this Schedule.
Item 5 Meaning of
institution
Provides that in Schedule 1
institution has the same meaning as in the Higher Education
Funding Act 1988.
Part 2 -
Transitional arrangement for students under the Post-graduate education loan
scheme
Item 6 FEE-HELP assistance for existing students under the
Post-graduate education loan scheme
Provides that if:
• a
person is enrolled with an institution in a unit of study that forms part of a
course of study that the person started before 1 January 2005;
and
• the period over which the person is undertaking the unit ends on
or before 31 December 2008; and
• the person is an eligible student
(within the meaning of section 98B of the Higher Education Funding Act
1988) for the semester; and
• the course is an eligible
post-graduate course of study within the meaning of section 98A of that Act;
and
• the Commonwealth had, under section 98G of that Act, discharged a
liability that the person had incurred in relation to the course;
and
• the person is entitled to FEE-HELP assistance for the unit or
would be entitled to FEE-HELP assistance for the unit but for paragraph
104-1(1)(a) of the Higher Education Support Act 2003; and
• the
person has neither discontinued his/her enrolment in the course since that
commencement (see item 7) nor completed the requirements of the
course;
then:
• if the institution is not (apart from this item) a
higher education provider—the institution is taken, for the purposes of
the application of the Higher Education Support Act 2003 in relation to
the person and the unit, to be a higher education provider; and
• if
subparagraph 7(f)(ii) [where a person would be entitled to FEE-HELP assistance
for the unit but for paragraph 104-1(1)(a) of the Higher Education Support
Act 2003] applies—the person is taken (for the purposes of the
Higher Education Support Act 2003) to be entitled to FEE-HELP assistance
for the unit; and
• the person is taken (for the purposes of that Act)
to incur a HECS-HELP debt and not a FEE-HELP debt if the Commonwealth makes a
loan to the person under section 104-1 of that Act in relation to the
unit.
Item 7 Discontinuance of enrolments
Provides
that for the purposes of subparagraph (g)(i) of item 6 a person is not taken to
have discontinued his/her enrolment in a course of study merely because the
person has taken leave of absence from (or has deferred) the course with the
approval of the institution with which the person is undertaking the course or
the person transfers his/her enrolment in the course to another course of study
at the same level with the same or another institution or higher education
provider or circumstances have occurred that are specified in the guidelines
under item 8 as not amounting to a discontinuance of
enrolment.
Item 8 Guidelines
Provides that the
Minister may (in writing) make guidelines providing for matters required or
permitted by Schedule 1 to be provided or necessary or convenient to be provided
in order to carry out or give effect to the Schedule. Without limiting the
foregoing, the guidelines may provide for when a person is taken to have
commenced a course of study and when a person is taken to have completed the
requirements of a course of study. Any such guidelines have effect accordingly
for the purposes of this Schedule.
Item 9 Meaning of
institution
Provides that in Schedule 1
institution has the same meaning as in the Higher Education
Funding Act 1988.
Part 3 -
Debts under the Higher Education Funding Act 1988
Item 10
Conversion of accumulated HEC debts into accumulated HECS-HELP
debts
Subitem 10(1) provides that, in working out (under section
140-25 of the Higher Education Support Act 2003) a person’s
accumulated HECS-HELP debt for the financial year starting on 1 July 2005, if a
person incurs an accumulated HEC debt on 1 June 2005 the debt is added to the
amount under step 1 of the method statement in section 140-5 of that
Act.
Subitem 10(2) provides that the accumulated HECS-HELP debt that a
person incurs on 1 June 2006 discharges (or discharges the unpaid part of) any
accumulated HEC debt that the person incurred on 1 June 2005.
Item
11 Taking account of voluntary payments made under the Higher Education Funding
Act 1988 on or after 1 June 2005
Provides that if, on or after 1 June
2005 a person makes a payment to the Commissioner under Division 1 of Part 5A.3
of the Higher Education Funding Act 1988 and the payment would, but for
subsection 106N(2A) of that Act, be used in working out the person’s
accumulated HEC debt incurred on 1 June in a particular financial year, then in
working out a person’s accumulated HECS-HELP debt for the financial year
under section 140-25 of the Higher Education Support Act 2003, the amount
is added to the sum referred to in step 3 of the method statement in section
140-5 of that Act.
Item 12 Taking account of HEC assessment debts
assessed on or after 1 June 2005
Provides that if, on or after 1 June
2005 the Commissioner makes an assessment of the amount of a person’s HEC
assessment debt under section 106T of the Higher Education Funding Act
1988, an amount is included in the notice of the assessment that has to be
paid in respect of an accumulated HEC debt under section 106Q of that Act and
the amount would (but for subsection 106N(2A) of that Act) be used in working
out the person’s accumulated HEC debt incurred on 1 June in a particular
financial year, then in working out a person’s accumulated HECS-HELP debt
for the financial year under section 140-25 of the Higher Education Support
Act 2003, the amount is added to the amount under step 4 of the method
statement in section 140-5 of that Act.
Item 13 Taking account of
amendments of assessments of HEC assessment debts on or after 1 June
2005
Subitem 13(1) provides that if, on or after 1 June 2005, the
Commissioner amends an assessment made under section 106T of the Higher
Education Funding Act 1988 of the amount of a person’s HEC assessment
debt and the HEC assessment debt is increased by the amendment (whether as a
result of an increase in the person’s taxable income of an income year or
otherwise), then in working out a person’s accumulated HECS-HELP debt for
the appropriate financial year under section 140-25 of the Higher Education
Support Act 2003, the amount of the increase is added to the amount under
step 5 of the method statement in section 140-5 of that Act.
Subitem
13(2) provides that if, on or after 1 June 2005, the Commissioner amends an
assessment made under section 106T of the Higher Education Funding Act
1988 of the amount of a person’s HEC assessment debt and the HEC
assessment debt is reduced by the amendment (whether as a result of a reduction
in the person’s taxable income of an income year or otherwise), then in
working out a person’s accumulated HECS-HELP debt for the appropriate
financial year under section 140-25 of the Higher Education Support Act
2003, the amount of the reduction is added to the amount under step 6 of the
method statement in section 140-5 of that Act.
Subitem 13(3) provides
that for the purposes of item 13 the appropriate financial year
is:
• if the amendment is made before 1 June in a financial
year—that financial year; or
• if the amendment is made on or
after 1 June in a financial year—the immediately succeeding financial
year.
Item 14 Definitions
Defines accumulated HEC
debt and HEC assessment debt for the purposes of Part 3 of
Schedule 1.
Part 4 - The University of
Notre Dame Australia
Item 15 Allocation of Commonwealth Grants
Scheme funding to The University of Notre Dame Australia
Provides
that until the end of the year 2008, Parts 2-2 and 2-5 of the Higher
Education Support Act 2003 apply in relation to The University of Notre Dame
Australia as if subparagraph 30-1(1)(a)(i) and subsections 36-30(1) and 36-35(1)
of that Act included a reference to The University of Notre Dame Australia and
subsections 30-1(2), 30-10(4), 36-10(5)and 36-30(3) did not
apply.
Item 16 Funding agreements with The University of Notre
Dame Australia
Provides that, without limiting section 30-25 of the
Higher Education Support Act 2003, a funding agreement with The
University of Notre Dame Australia in respect of the year 2008 or an earlier
year may specify conditions relating to the enrolment of persons in places that
are not allocated in respect of national
priorities.
Part 5 - Avondale
College
17 Allocation of Commonwealth Grant Scheme funding to
Avondale College
Provides that until the end of the year 2008, Parts
2-2, 2-5 and 3-2 of the Higher Education Support Act 2003 apply in
relation to Avondale College as if Avondale College were a higher education
provider, but not a Table A
provider.
Part 6 - Other transitional
provisions
Item 18 Rollover of 2003 grants made under section 23
of the Higher Education Funding Act 1988
Provides that if a body
receives a grant of financial assistance under section 23 of the old Act during
the year 2003, the body fails to spend all of that grant in accordance with the
old Act in respect of the year 2003 and the Secretary determines in writing that
this paragraph applies to the body, then so much of the unspent grant amount as
the Secretary specifies in relation to the grant will be taken to have been
granted to the body under the new Act in respect of the year 2004 under the
section of the new Act that the Secretary specifies in the determination and on
such conditions as the Secretary specifies in that
determination.
Item 19 Rollover of 2004 grants made under the
Higher Education Funding Act 1988
Provides that if a body receives a
grant of financial assistance under Chapter 2 of the old Act during the year
2004, the body fails to spend all of that grant in accordance with the old Act
in respect of the year 2004 and the Secretary determines in writing that this
paragraph applies to the body, then so much of the unspent grant amount as the
Secretary specifies in relation to the grant will be taken to have been granted
to the body under the new Act in respect of the year 2005 under the section of
the new Act that the Secretary specifies in the determination and on such
conditions as the Secretary specifies in that determination.
Item
20 Merit based equity scholarships
Provides that a student who,
before the commencement of the new Act was awarded a merit based equity
scholarship referred to in subsection 35(7) of the old Act for a course of study
at an institution (within the meaning of the old Act) and continues to undertake
that course at the institution after that commencement is taken, for the
purposes of the new Act, to be an exempt student for all of the units of study
that he/she undertakes as part of that course at that institution. However,
this item does not apply if the institution is not a higher education
provider.
Item 21 Marginally funded places
Subitem
21(1) provides that a higher education provider’s funding agreement under
section 30-25 of the new Act for the year 2005, 2006 or 2007 (the grant
year) may specify an allowable number of marginally funded places in
respect of that year.
Subitem 21(2) provides that if such a funding
agreement specifies such a number, then for the purposes of deciding whether the
provider has an adjustment under subsection 33-25(1) of the new Act for the year
following the grant year and working out the amount of any such adjustment for
the year following the grant year, the number of Commonwealth supported places
that are provided in the grant year is taken to be reduced by the number so
specified in that funding agreement.
Item 22 Assessment
statements
Subitem 22(1) provides that a written statement that an
assessing body for a listed professional occupation gave to a person before the
commencement of the new Act is taken to be an assessment statement
for the purposes of the new Act if:
• the person held a qualification
awarded in a foreign country; and
• the qualification related to that
occupation; and
• the person proposed to seek entry to that occupation
in Australia or, if the assessing body was an assessing body of a State or
Territory, in that State or Territory; and
• the body gave the person
a written statement to the effect that, in the body’s opinion, if the
person were to do any or all of successfully undertaking additional studies of a
kind specified in the statement, being successful in one or more examinations
specified in the statement or successfully undertaking a tuition and training
program of a kind specified in the statement, then the person would meet the
requirements for entry to that occupation.
Subitem 22(2) provides the
following definitions for the purposes of item 22:
• assessing
body includes a person or body that, immediately before the commencement
of the new Act, was an assessing body for the purposes of Chapter 4B of the old
Act; and
• listed professional occupation includes an
occupation that, immediately before that commencement, was a listed professional
occupation for the purposes of that Chapter;
and
• occupation includes a part of an occupation that,
immediately before that commencement, was an occupation for the purposes of that
Chapter.
Item 23 Saving of regulations made for Chapter 5C of the
Higher Education Funding Act
Subitem 23(1) provides that regulations
made for the purposes of paragraphs 106ZQ(2)(a) and (c) and subsection 106ZQ(3)
of the old Act that were in force immediately before the repeal of Chapter 5C of
the old Act are, on the commencement day, taken to have been made for the
purposes of paragraphs 225-25(1)(a) and (c) and subsection 225-25(2)
respectively of the new Act.
Subitem 23(2) provides that on the
commencement day, the reference in the regulations made for the purposes of
paragraph 106ZQ(2)(a) of the old Act to an application under subsection 106ZQ(1)
of the old Act is to be read as a reference to an application under section
225-1 of the new Act.
Subitem 23(3) defines commencement day
for the purposes of item 23 as the day that Chapter 6 of the new Act
commences.
Item 24 Definitions
Defines new
Act as meaning the Higher Education Support Bill 2003 and
old Act as meaning the Higher Education Funding Act 1988
for the purposes of Schedule
1.
Schedule 2 -
Amendments
Part 1 -
Appropriations
Higher Education Funding Act
1988
Part 1 amends the maximum funding amounts in Part 2.2 of the
Higher Education Funding Act 1988 for the year 2004 to reflect indexation
increases and other funding adjustments to accommodate the new Higher
Education Support Act 2003.
Item 1
Since the
introduction of the Higher Education Contribution Scheme (HECS), funding for the
operating purposes and limited operating purposes of higher education
institutions has come from a combination of HECS liabilities and grants approved
under sections 15 and 16 of the Act. Section 17 sets the maximum aggregate
funding levels for operating grants that may be paid to institutions under
sections 15 and 16 while Part 4.3 of the Act established the Higher Education
(HECS) Reserve and provides for the application of money in the Account.
Each year the operating needs of institutions are estimated and funded
by a combination of estimated HECS liabilities during the year and aggregate
grants funded within the maximum amount provided for in section 17 for that
year. Actual HECS liabilities for a year are not available until early in the
subsequent year after which an adjustment is made to the section 17 funding
amount for the previous year to correctly reflect the relative contribution of
HECS liabilities to the funding needs of institutions.
Item 1
amends section 17 to vary the maximum aggregate funding level for 2004 to
reflect supplementation consistent with indexation arrangements, new funding to
support higher education in regional areas, increased funding for nursing
education and additional nursing places.
Item 2
Section
20 provides for grants to higher education institutions for superannuation
expenses for staff whose salaries are funded from grants provided under the Act.
Item 2 amends subsection 20(3) to vary the maximum aggregate grant amount
for 2004 to reflect supplementation consistent with indexation
arrangements.
Item 3
Subsection 22A(5) provides for the
total amounts which may be approved as expenditure by way of grants to open
learning organisations. Item 3 amends subsection 22A(5) to vary the
maximum aggregate grant amount for 2004 to reflect supplementation consistent
with indexation arrangements.
Item 4
Subsection
23C(2) of the Act limits the total funds available for grants that may be
approved under sections 21, 21B, 22, 23, 23A and 23B of the Act for specified
years. Item 4 amends subsection 23C(2) to vary the funding limit for
2004 to reflect supplementation consistent with indexation arrangements, new
funding to support the General Sir John Monash Awards and the transfer of
research scholarship funding which is now to be paid as Commonwealth
Scholarships under Part 2-4 of Chapter 2 of the Higher Education Support Act
2003.
Item 5
Section 24 of the Act provides
grants in respect of teaching hospitals. Item 5 amends subsection 24(3)
to increase the maximum aggregate grant amount for 2004 to reflect
supplementation consistent with indexation arrangements.
Item
6
Section 27A of the Act provides for grants to institutions for
special capital projects. Item 6 amends subsection 27A(6) to increase
the maximum aggregate grant amount for 2004 to reflect supplementation
consistent with indexation arrangements.
Item
7
Section 27D of the Act allows the Minister to determine an amount
to be available for expenditure by the Commonwealth on the international
marketing and promotion of Australian education and training services. Item
7 amends subsection 27D(2) to increase the maximum aggregate funding level
for 2004 to reflect supplementation consistent with indexation arrangements.
Part 2 - Transitional financial
assistance
Higher Education Funding
Act 1988
Item 8 After section 110
Inserts a new
section 110A in Chapter 6 of the Act providing for transitional financial
assistance. The new section provides that there is payable to an institution to
which financial assistance was payable under Chapter 2 in respect of the year
2004 such amount as the Minister determines in respect of the year 2005, 2006
and 2007. The total of the amounts that are payable under new section 110A must
not exceed $21,536,000 (2005), $9,411,000 (2006) and $7,393,000
(2007).
Part
3 - Discontinuance of provisions of the Higher Education Funding Act
1988
Higher Education Funding Act
1988
Items 9 and 19
Repeal section 2B and Chapter
5C of the Act to reflect that provisions for regulating higher education in the
external territories will be provided for in Chapter 6 of the Higher
Education Support Act 2003.
Items 10-16
Amend
paragraphs (a) to (b) of the definition of year to which this Chapter
applies in section 3 of the Act and sections 98L, 98ZE and 106FA of the Act
and insert new sections 98NA, 98ZAA and 106KA to reflect that no financial
assistance will be payable under the Act after 31 December 2004 (or the funding
year 2004) as a consequence of the new Higher Education Support Act
2003.
Item 17 After section 106K
Inserts a new
section 106KA which provides that despite sections 106J to 106K, a person does
not incur a semester debt if the census date, in respect of the course of study
or study period in respect of which the debt would (apart from section 106KA)
arise, occurs on or after 1 January 2005. This section is inserted as a
consequence of the new Higher Education Support Act
2003.
Item 18 After subsection 106N(2)
Inserts a
new subsection 106N(2A) in Part 5A.2 of Chapter 5A of the Act to provide that a
person cannot incur an accumulated HEC debt on 1 June 2006 or on 1 June in any
later year. A person’s accumulated HECS-HELP debt, worked out under
section 140-25 of the Higher Education Support Act 2003, for the
financial year starting on 1 July 2005 can include an amount for the
person’s accumulated HEC debt incurred on 1 June 2005 (see Part 3 of
Schedule 1 to this Act).
Part 4 - The
Australian National
University
Australian National
University Act 1991
Items 20, 21, 25 and
27-29
Repeal the definitions of Chair of the Education
Committee, Chair of the Research Committee,
Institute of the Arts, president of the postgraduate
students’ association, president of the undergraduate
students’ association and statutory Board in section
3 of the Act.
Item 22 Section 3 (definition of
dean)
Repeals the definition of dean in section
3 and replaces it with a new definition which defines dean as
meaning the head (by whatever name called) of any faculty.
Items
23 and 24 Section 3 (definition of ex officio member)
Item 24
amends the definition of ex officio member in section 3 of the Act
to remove the Chair of the Education Committee, the Chair of the Research
Committee, the president of the postgraduate students' association and the
president of the undergraduate students' association from the definition. Item
23 amends paragraph (c) of the definition as a consequence of the repeal of
paragraphs (d)-(g) of the definition by item 24.
Item
26
Inserts a new definition of Nominations Committee of
Council in section 3 of the Act. The term is defined as meaning the
persons referred to in subsection 10(2).
Items 30 and 31 Section
3 (paragraphs (b) and (c) of the definition of University
body)
Item 31 repeals paragraph (c) of the definition of
University body in section 3 of the Act which has the effect of
removing a statutory Board from the definition. The two statutory boards (the
Board of the Institute of Advanced Studies and the Board of the Faculties) are
abolished by item 52. Item 30 amends paragraph (b) as a consequence of the
repeal of paragraph (c).
Item 32 Paragraph
7(1)(b)
Repeals paragraph 7(1)(b) and substitutes a new
paragraph which has the effect of amending the organisational structure within
the University known as "The Faculties" (a group of faculties and other bodies
determined by the Council) to remove statutory provision for an Institute of the
Arts, a school of music and a school of art.
Item 33 Subsection
7(2)
Replaces reference to “a school or other organisational
structure” in subsection 7(2) with reference to “an organisational
structure” to reflect the changes made by item 32.
Item 34
Paragraphs 10(1)(d) to (j)
Repeals paragraphs 10(1)(d) to (j) which
has the effect of removing the following persons from membership of the
Council:
• the Chair of the Education Committee;
• the Chair
of the Research Committee;
• 4 persons appointed by the
Governor-General;
• one person (being a Senator or a member of the
House of Representatives) appointed by the Governor-General on the nomination of
the Prime Minister;
• one person (being a Senator or a member of the
House of Representatives) appointed by the Governor-General on the nomination of
the Leader of the Opposition in the House of Representatives;
• 2
persons (not being members of the Legislative Assembly for the Australian
Capital Territory) appointed by the Chief Minister of the Australian Capital
Territory; and
• 2 persons (not being employees or students of the
University) elected by Convocation.
Item 35 Paragraphs 10(1)(o),
(p) and (q)
Section 10 deals with the constitution of the Council.
Item 35 repeals paragraphs 10(1)(o), (p) and (q) and substitutes new paragraphs
which have the effect of replacing the president of the postgraduate students'
association, the president of the undergraduate students' association and any
person appointed as an extra member of Council under subsection 10(2)
with:
• one postgraduate student of the University elected by the
postgraduate students of the University;
• one undergraduate student of
the University elected by the undergraduate students of the University; and
• 6 members appointed by the Minister on the recommendation of the
Nominations Committee of Council.
Item 36 Subsections 10(2) to
(4)
Repeals subsections 10(2) to (4) and substitutes new subsections
10(2) to (10) dealing with the establishment and functions of the Nominations
Committee of Council.
Proposed subsection 10(2) provides for The
Nominations Committee of Council to consist of the Chancellor and 6 other
persons appointed by the Chancellor in accordance with guidelines determined by
the Council.
Proposed subsection 10(3) provides that, in making
recommendations to the Minister under paragraph 10(1)(q), the Nominations
Committee of Council must have regard to the desirability of ensuring that there
is a balance of skills, expertise and gender among members of the
Council.
Proposed subsection 10(4) provides that at least 2 of the
members appointed under paragraph 10(1)(q) must have a high level of relevant
financial expertise.
Proposed subsection 10(5) provides that at least one
member appointed under paragraph 10(1)(q) must have a high level of relevant
commercial expertise.
Proposed subsection 10(6) provides that the
Nominations Committee of Council must not recommend (under paragraph 10(1)(q)) a
person who is a current member of the Commonwealth Parliament, a State
Parliament, the legislature of a Territory, a current member of the academic or
general staff of the University, a student of the university or a member of the
Nominations Committee of Council.
Proposed subsection 10(7) provides that
the Minister must, within 28 days after receiving written advice from the
Nominations Committee of Council recommending that a person be appointed to the
Council, appoint the person specified to the Council for a period not exceeding
4 years or decide not to appoint the person specified if, in the
Minister’s opinion, the appointment is not in the best interests of the
University.
Proposed subsection 10(8) provides that if the Minister
decides under paragraph 10(7)(b) not to appoint a person, the Minister must
notify the Council in writing of the refusal and give reasons for the
refusal.
Proposed subsection 10(9) provides that in deciding under
paragraph 10(7)(b) not to appoint a person, the Minister must only consider the
balance of skills, expertise and gender, and the periods of appointment (or
proposed periods of appointment) of proposed and continuing members of the
Council.
Proposed subsection 10(10) provides that, subject to the Act,
the members of the Council referred to in paragraphs 10(1)(k), (l), (m), (n),
(o) and (p) hold office for such periods as the Statutes
provide.
Item 37 Operation of Nominations Committee prior to
commencement
Provides that if, because of section 4 of the Acts
Interpretations Act 1901, persons are appointed to the Nominations Committee
of the Council prior to the commencement of this item, then the Nominations
Committee may make recommendations to the Minister for appointment of persons to
the Council as if this item had commenced and despite subsection 4(2) of the
Acts Interpretations Act 1901, the appointment of persons to the
Nominations Committee of the Council is taken to have taken effect before the
making of any such recommendation.
Items 38 and 40 Paragraphs
15(1)(e), (f) and (h)
Repeal paragraphs 15(1)(e), (f) and (h) dealing
with the circumstances in which a member of the Council’s office becomes
vacant. The circumstances removed are where a member:
• without
reasonable excuse, fails to comply with his/her obligations under section 27F or
27J of the Commonwealth Authorities and Companies Act 1997;
or
• in the case of a member referred to in paragraph 10(1)(g), (h) or
(i)—ceases to be qualified to be appointed as mentioned in the paragraph
concerned; or
• in the case of a member referred to in paragraph
10(1)(q)—becomes an employee or student of the
University.
Item 39 Paragraph 15(1)(g)
Amends
paragraph 15(1)(g) to omit reference to “paragraph 10(1)(j), (k), (l), (m)
or (n)” and substitute it with a reference to “paragraph 10(1)(k),
(l), (m), (n), (o) or (p)”. If a member ceases to be qualified to be
elected as mentioned in the paragraph concerned, the member’s office on
the Council becomes vacant.
Item 41 After paragraph
15(1)(i)
Inserts new paragraphs 15(1)(j), (k) and (l) to extend the
circumstances in which a member of the Council’s office becomes vacant to
include where a member:
• is or becomes disqualified from managing
corporations under Part 2D.6 of the Corporations Act 2001;
or
• has, in the Council’s opinion, breached his/her duties under
sections 18A, 18B, 18C, 18D, 18E or 18F as a member of the Council;
or
• is, in the Council’s opinion, incapable (other than on a
temporary basis) of performing his/her duties.
Item 42 Subsection
15(2)
Amends subsection 15(2) to omit reference to “paragraph
(a), (b), (c), (d), (e), (o) or (p)”, and substitute it with a reference
to “paragraph (a), (b) or (c)” of subsection 10(1). This has the
effect of limiting the list of members of the Council whose Council office is
vacated should they be appointed to the office of Chancellor, Pro-Chancellor or
Vice-Chancellor to:
• a person who is either a dean or the head of a
research school and is elected, in either case, by the deans and the heads of
the research schools voting together;
• one member of the academic
staff of the Institute of Advanced Studies elected by members of that staff;
• one member of the academic staff of The Faculties elected by members
of that staff;
• one member of the general staff of the University
elected by members of that staff;
• one postgraduate student of the
University elected by the postgraduate students of the
University;
• one undergraduate student of the University elected by
the undergraduate students of the University;
• six members appointed
by the Minister on the recommendation of the Nominations Committee of
Council.
Items 43 and 44 Paragraphs 15(2)(c) to
(g)
Item 44 repeals paragraphs 15(2)(d) to (g) to limit the offices,
appointment to which triggers an automatic vacation of office for certain
members of Council under subsection 15(2), to the offices of Chancellor,
Pro-Chancellor or Vice-Chancellor. Item 43 amends paragraph 15(2)(c) as a
consequence of the repeal of paragraphs 15(2)(d) to (g) by item
44.
Item 45 Subsection 15(3)
Repeals subsection 15(3)
which has become redundant with the repeal of paragraphs 10(1)(f) to (h) by item
34. Subsection 15(3) of the Act provided that “if the office of a member
referred to in paragraph 10(1)(f), (g) or (h) becomes vacant, the Council must,
in writing, notify the Governor-General of that fact.”
Item
46 At the end of section 16
Inserts a new subsection 16(3) which
provides that subsection 16(2) does not apply (and does not prevent paragraph
10(7)(a) applying) to the filling of a vacancy in the membership of the Council
if the vacancy is one to which paragraph 10(1)(q) relates.
Subsection
16(2) provides that a person appointed to fill a casual vacancy holds office for
the remainder of the term of office of the person's predecessor. Paragraph
10(7)(a) [inserted by item 36] provides that the Minister must, within 28 days
after receiving written advice from the Nominations Committee of Council
recommending that a person be appointed to the Council, appoint the person to
the Council for a period not exceeding 4 years. A member of the Council
appointed pursuant to paragraph 10(1)(q) is one of six members appointed by the
Minister on the recommendation of the Nominations Committee of Council [see item
35].
Item 47 Subsection 17(1)
Amends subsection 17(1)
to omit the words “The Council” and substituting it with the words
“Subject to this section, the Council”. Subsection 17(1) empowers
the Council to delegate all or any of its functions and powers under the Act
(except its powers in relation to the making of Statutes) to a member of the
Council or a member of the staff of the University. The purpose of this
amendment is to accommodate the insertion of a new subsection 17(3) by item
48.
Item 48 At the end of section 17
Inserts a new
subsection 17(3) which provides that the Council must not delegate its power
to:
• appoint the Chancellor, Pro-Chancellor or Vice-Chancellor;
or
• approve the University’s annual budget or its business plan;
or
• approve the annual report of the University; or
• monitor
its commercial activities and its subsidiaries and any other entities that it
controls to the extent required to ensure they do not have any significant
adverse impact on, or pose an unreasonable risk to, the University’s
finances and operations; or
• review and monitor the management of the
University as a whole or the University’s performance as a university (as
defined by the Higher Education Support Act 2003).
Item 49
Subsection 18(1)
Amends subsection 18(1) to omit the words “The
Council” and substituting it with the words “Subject to this
section, the Council”. Subsection 18(1) empowers the Council to delegate
all or any of its functions and powers under the Act (except its powers in
relation to the making of Statutes) to the members of a committee consisting of
members of the Council or members of the Council and other persons. The purpose
of this amendment is to accommodate the insertion of a new subsection 18(4) by
item 50.
Item 50 At the end of section 18
Inserts a
new subsection 18(4) which provides that the Council must not delegate its power
to:
• appoint the Chancellor, Pro-Chancellor or Vice-Chancellor;
or
• approve the University’s annual budget or its business plan;
or
• approve the annual report of the University; or
• monitor
its commercial activities, and its subsidiaries and any other entities that it
controls, to the extent required to ensure they do not have any significant
adverse impact on, or pose any reasonable risk to, the University’s
finances and operations; or
• review and monitor the management of the
University as a whole or the University’s performance as a university (as
defined by the Higher Education Support Act 2003).
Item 51
After section 18
Inserts new sections 18A to 18G to clarify and
strengthen the accountability obligations of members of
Council.
Proposed section 18A Member
to act solely in interest of University
Provides that a member of the
Council must act solely in the interests of the University taken as a whole,
having regard to its
functions.
Proposed section 18B Member
to exercise care and diligence
Proposed subsection 18B(1) provides
that a member of the Council must exercise his/her powers and discharge his/her
duties with the degree of care and diligence that a reasonable person would
exercise if he/she were a member of the Council in the Council’s
circumstances and occupied the office held by, and had the same responsibilities
within the Council as, the member.
Proposed subsection 18B(2) provides
that a member of the Council who makes a business judgment is taken to meet the
requirements of subsection 18B(1), and their equivalent duties at common law and
in equity, in respect of the judgment if he/she:
• makes the judgment
in good faith for a proper purpose; and
• does not have a material
personal interest in the subject matter of the judgment; and
• informs
himself/herself about the subject matter of the judgment to the extent he/she
reasonably believes to be appropriate; and
• rationally believes that
the judgment is in the best interests of the University.
The
member’s belief that the judgment is in the best interests of the
University is a rational one unless the belief is one that no reasonable person
in his/her position would hold. Subsection 18B(2) only operates in relation to
duties under this section and their equivalents at common law or in equity
(including the duty of care that arises under the common law principles
governing liability for negligence). It does not operate in relation to duties
under any other provision of this Act or under any other
laws.
Proposed section 18C Member to
act in good faith
Provides that a member of the Council must exercise
his/her powers and discharge his/her duties in good faith in the best interests
of the University and for a proper
purpose.
Proposed section 18D Member
not to use position improperly
Provides that a member of the Council
must not improperly use his/her position to gain an advantage for him/her or
someone else or cause detriment to the University or to another
person.
Proposed section 18E Member
not to use information improperly
Provides that a member of the
Council who obtains information because of his/her position must not improperly
use the information to gain an advantage for himself/herself or someone else or
cause detriment to the University or to another
person.
Proposed section 18F Material
personal interest
Proposed subsection 18F(1) provides that a member
of the Council who has a material personal interest in a matter that relates to
the affairs of the University must give the other members of the Council notice
of the interest.
Proposed subsection 18F(2) provides that subsection
18F(1) does not apply if the member of the Council is not, because of subsection
27F(2) of the Commonwealth Authorities and Companies Act 1997, required
to give such a notice under subsection 27F(1) of that Act.
Proposed
subsection 18F(3) provides that a member of the Council who has an interest in a
matter may give the other members of the Council standing notice of the nature
and extent of the interest in the matter in accordance with section 26G of the
Commonwealth Authorities and Companies Act 1997.
Proposed
subsection 18F(4) provides that a member of the Council who has a material
personal interest in a matter that is being considered at a meeting of the
Council must not be present while the matter is being considered at the meeting
or vote on the matter except as allowed under section 27J of the Commonwealth
Authorities and Companies Act
1997.
Proposed section 18G
Application of Commonwealth Authorities and Companies Act
1997
Provides that nothing in sections 18A to 18F affects the
application of the Commonwealth Authorities and Companies Act 1997 to
members of the Council.
Item 52 Sections 20 to
29
Repeals sections 20 to 29 to remove provisions for a separate
Board of the Institute of Advanced Studies and a Board of the Faculties. In
accordance with the new governance and management arrangements for the
University, these functions are to be brought within the full control and
management of the Council.
Item 53 Paragraph
39(2)(d)
Amends paragraph 39(2)(d) to omit the words “, a
statutory Board or a committee of the Council or such a Board” and
substituting it with the words “or a committee of the Council”. As
amended, paragraph 39(2)(d) will provide that an act or proceeding is not
invalid merely because of any vacancy in the membership of the Council.
Items 54 and 55 Subsections 41(1) and (2)
Item 54
repeals subsection 41(1) and item 55 amends subsection 41(2) by inserting the
words “, including student contribution amounts and tuition fees within
the meaning of the Higher Education Support Act 2003,” after
“University”. to reflect the Higher Education Support Act 2003
arrangements for fees charged by higher education
providers.
Item 56 Section 43
Repeals section 43
dealing with the application of fees and other money and substitutes a proposed
new section 43 which provides that the Council must apply the following solely
for the purposes of the University:
• all financial assistance paid to
the University under the Higher Education Support Act
2003;
• student contribution amounts within the meaning of the
Higher Education Support Act 2003;
• tuition fees within the
meaning of the Higher Education Support Act 2003;
• other money
received by the University under this Act or otherwise.
Item 57
Subparagraph 50(2)(f)(iii)
Amends subparagraph 50(2)(f)(iii) to omit
the words “or of a statutory Board” to reflect that the two
statutory boards (the Board of the Institute and the Board of The Faculties) are
abolished by item 52 as part of the new governance structures for the university
provided for in this Part.
Item 58 Subparagraph
50(2)(g)(iv)
Repeals subparagraph 50(2)(g)(iv) to remove reference to
the resignation of a member of a statutory Board as one of the matters in
respect of which the Council may make Statutes. The two statutory Boards (the
Board of the Institute and the Board of The Faculties) are abolished by item
52.
Item 59 Paragraph 50(2)(u)
Repeals paragraph
50(2)(u) and substitutes a new paragraph which has the effect of providing for
the Council to make Statutes with respect to the payment of fees to the
University (including student contribution amounts and tuition fees within the
meaning of the Higher Education Support Act 2003). This reflects one of
the higher education reform measures provided for in the Higher Education
Support Act 2003 and this Act.
Item 60 Paragraph
51(1)(b)
Amends paragraph 51(1)(b) to remove the $200 limit on fines
for offences in Statutes made by the Council relating to
traffic.
Item 61 Subsections 52(1) and (2)
Section 52
currently provides for Statutes to be approved by the Governor-General,
published in the Gazette, tabled in both Houses of Parliament and for
related matters. Item 61 repeals subsections 52(1) and (2) and substitutes a
new subsection which provides that when a Statute has been made by the Council
it must be sealed with the seal of the University, the Statute must be notified
in the Gazette and that the Statute has the force of law from the day on
which it is so notified.
Item 62 Subsection
52(4)
Repeals subsection 52(4) which required a copy of a Statute to
be laid before each House of the Parliament within 15 sitting days of that House
after the Statute is notified in the Gazette.
Item 63
Division 4 of Part 5
Repeals Division 4 of Part 5 which
contained old transitional provisions dealing with membership of the Council
immediately after commencement of the Australian National University Act
1991 in relation to persons who held certain positions under the
Australian National University Act 1946 prior to that.
Part
5 - Australian Maritime College
Maritime College Act
1978
Item 64 Section 4 (definition of ex officio
member)
Amends section 4 by omitting “, the
Chairperson” from the definition of ex officio member. This
is to reflect the fact that the person appointed as Chairperson of the Council
must be a member under amendments made by item 76 and therefore can no longer be
an ex officio member.
Items 65-68 Section 4 (definitions of
non-teaching staff member, student member, teaching staff member and
term of office)
Amend section 4 to repeal the definitions of
non-teaching staff member, student member,
teaching staff member, and term of office to reflect
new governance arrangements for the College made by this
Part.
Item 69 Paragraph 7(a)
Repeals paragraph 7(a)
and inserts a new paragraph which now defines the functions of the College as
including the conduct of an institution for the provision of such maritime and
maritime-related education and training (including logistics education and
training) as the Council (with the Minister’s approval) determines or as
the Minister requires.
Items 70 and 71 paragraphs 7(c) to
(d)
Section 7 specifies the functions of the College. Item 71
repeals paragraph 7(d) to remove from the College’s functions the duty to
consult and maintain liaison with other institutions and authorities in
Australia that are concerned with the provision of maritime education and
training. Item 70 amends paragraph 7(c) as a consequence of the repeal of
paragraph 7(d) by item 71.
Item 72 Section 11
Repeals
section 11 and substitutes a new section 11 providing for the constitution of
the Council of the College.
Proposed subsection 11(1) provides for the
Council of the College to consist of the Principal, the Chairperson of the
Academic Board of the College and up to 6 other members.
Proposed
subsection 11(2) provides that the (up to) 6 other members referred to in
paragraph 11(1(c) may be appointed by the Minister in writing.
Proposed
subsection 11(3) provides that in making an appointment under subsection 11(2)
the Minister must have regard to the advice of the Council.
Proposed
subsection 11(4) provides that in appointing members to the Council under
paragraph 11(1)(c) the Minister must try to ensure that there is a balance of
skills and expertise among members of the Council, in particular financial and
commercial skills.
Proposed subsection 11(5) provides that the Minister
must not appoint to the Council a person who is a current member of the
Commonwealth Parliament, a State Parliament, the legislature of a Territory, a
member of the academic or general staff of the College or a student of the
College.
Proposed subsection 11(6) provides that if a person other than
the Principal is for the time being performing the duties of the office of
Principal, that person may attend meetings of the Council and for the purposes
of those meetings is taken to be a member.
Item 73 Subsection
13(3)
Technical amendment to the wording of subsection 13(3) (dealing
with the period of office of certain members of the Council of the College) to
refect the reduction in members of the Council made by Item
72.
Item 74 Subsection 13(4)
Amends subsection 13(4)
to provide that the Chairperson of the Academic Board of the College holds
office as a member while he/she holds office as the Chairperson of the Academic
Board, unless the person is removed from the Council under section 17 (as
repealed and replaced by item 78).
Items 75 and 77 Subsections
13(5) to (8) and 15(3)
Repeals subsections 13(5) to (8) and 15(3) to
reflect the reduction in members of the Council under the new governance
arrangements for the College made by this Part. In particular, these amendments
are necessitated by new section 11 providing for the constitution of the Council
of the College inserted by item 72 and the provision that the person appointed
as Chairperson of the Council must be a member under amendments made by item
76.
Item 76 Paragraph 15(1)(a)
Amends paragraph
15(1)(a) and has the effect of providing the person appointed as Chairperson of
the Council must be a member.
Item 78 Section
17
Repeals section 17 (dealing with removal of a member from office)
and substitutes with a new section 17.
Proposed subsection 17(1) provides
that the Minister may remove a person from the Council on the ground of
misbehaviour, physical or mental incapacity or a breach of his/her duties under
the Commonwealth Authorities and Companies Act 1997.
Proposed
subsection 17(2) provides that the Minister must remove a member from the
Council if the member becomes disqualified from managing corporations under Part
2D.6 of the Corporations Act 2001 or the member has (in the
Council’s opinion) breached his/her duties under sections 22A, 22B, 22C,
22D, 22E or 22F as a member or the member is (in the Minister’s
opinion) incapable of performing his/her duties.
Proposed subsection
17(3) provides that in forming an opinion for the purposes of paragraph 17(2)(c)
the Minister must have regard to the advice of the Council.
Items
79-80 Subsections 19(2) to (3) and section 20
Repeal subsections
19(2) to (3) [dealing with the circumstances in which a teaching staff member or
a student member ceases to hold office] and section 20 [dealing with the filling
of a casual vacancy in the office of an elected member] to reflect the reduction
in members of the Council under the new governance arrangements for the College
made by this Part and in particular new section 11 providing for the
constitution of the Council of the College inserted by item
72.
Item 81 After section 22
Inserts new sections 22A
to 22G to clarify and strengthen the accountability obligations of members of
the Council.
Proposed section 22A
Member to act solely in interest of College
Provides that a member
must act solely in the interests of the College taken as a whole, having regard
to its functions.
Proposed section 22B
Member to exercise care and diligence
Proposed subsection 22B(1)
provides that a member must exercise his/her powers and discharge his/her duties
with the degree of care and diligence that a reasonable person would exercise if
he/she were a member of the Council in the Council’s circumstances and
occupied the office held by (and had the same responsibilities within the
Council as) the member.
Proposed subsection 22B(2) provides that a member
who makes a business judgment is taken to meet the requirements of subsection
22B(1), and their equivalent duties at common law and in equity, in respect of
the judgment if he/she:
• makes the judgment in good faith for a proper
purpose; and
• does not have a material personal interest in the
subject matter of the judgment; and
• informs himself/herself about the
subject matter of the judgment to the extent he/she reasonably believes to be
appropriate; and
• rationally believes that the judgment is in the best
interests of the College.
The member’s belief that the judgment is
in the best interests of the College is a rational one unless the belief is one
that no reasonable person in his/her position would hold.
Subsection
22B(2) only operates in relation to duties under this section and their
equivalents at common law or in equity (including the duty of care that arises
under the common law principles governing liability for negligence). It does
not operate in relation to duties under any other provision of the Maritime
College Act 1978 or under any other
laws.
Proposed section 22C Member to
act in good faith
Provides that a member must exercise his/her powers
and discharge his/her duties in good faith in the best interests of the College,
and for a proper purpose.
Proposed
section 22D Member not to use position improperly
Provides that
member must not improperly use his/her position to gain an advantage for him/her
or someone else or cause detriment to the College or to another
person.
Proposed section 22E Member
not to use information improperly
Provides that a member who obtains
information because of his/her position must not improperly use the information
to gain an advantage for himself/ herself or someone else or cause detriment to
the College or to another
person.
Proposed section 22F Material
personal interest
Proposed subsection 22F(1) provides that a member
who has a material personal interest in a matter that relates to the affairs of
the College must give the other members notice of the interest.
Proposed
subsection 22F(2) provides that subsection 22F(1) does not apply if the member
is not, because of subsection 27F(2) of the Commonwealth Authorities and
Companies Act 1997, required to give such a notice under subsection 27F(1)
of that Act.
Proposed subsection 22F(3) provides that a member who has an
interest in a matter may give the other members standing notice of the nature
and extent of the interest in the matter in accordance with section 26G of the
Commonwealth Authorities and Companies Act 1997.
Proposed
subsection 22F(4) provides that a member who has a material personal interest in
a matter that is being considered at a meeting of the Council must not be
present while the matter is being considered at the meeting, or vote on the
matter, except as allowed under section 27J of the Commonwealth Authorities
and Companies Act 1997.
Proposed
section 22G Application of Commonwealth Authorities and Companies Act
1997
Provides that nothing in sections 22A to 22F affects the
application of the Commonwealth Authorities and Companies Act 1997 to
members.
Item 82 Paragraphs 24(1)(d) to (e)
Repeals
paragraphs 24(1)(d) to (e) to reflect the reduction in members of the Council
under the new governance arrangements for the College made by this Part and in
particular new section 11 providing for the constitution of the Council of the
College inserted by item 72.
Item 83 After paragraph
24(1)(j)
Inserts a new paragraph 24(1)(ja) to permit the Council to
make Statutes with respect to the payment to the College of fees, including
student contribution amounts and tuition fees within the meaning of the
Higher Education Support Act 2003.
Item 84 Subsection
26(2)
Amends subsection 26(2) to give the Minister the sole power to
appoint the Principal of the College (formerly the Minister had the power to
appoint the first Principal and the Council to appoint succeeding
Principals).
Item 85 After subsection 26(2)
Inserts a
new subsection 26(2A) which provides that the Minister must have regard to the
advice of the Council in making an appointment under subsection 26(2) [as
amended by item 84].
Item 86 Subsection 26(4)
Amends
subsection 26(4) to provide that the term of the office of Principal may be
shortened if the Principal is removed from office under section 17 [as amended
by item 78].
Item 87 Subsection 26(6)
Repeal
subsection 26(6) and substitutes a new subsection which provides that, subject
to section 26, the Principal holds office on such terms and conditions as are
determined by the Minister.
Item 88 Section 32
Repeals
section 32 and substitutes 4 new sections. Section 32 deals with fees and
sections 32A to 32C strengthen the accountability and governance arrangements
for the College.
Proposed section 32
Fees
Provides that fees that are payable to the College, including
student contribution amounts and tuition fees within the meaning of the
Higher Education Support Act 2003 are payable in accordance with the
Statutes to reflect the Higher Education Support Act 2003 arrangements
for fees charged by higher education
providers.
Proposed section 32A
Corporate plan
Proposed subsection 32A(1) provides that the members
must prepare a corporate plan at least once a year and give it to the
Minister.
Proposed subsection 32A(2) provides that if the Minister asks
the members to give the plan to the Minister by a specified day, the members
must give the plan to the Minister by that day.
Proposed subsection
32A(3) provides that the plan must cover a period of at least 3
years.
Proposed subsection 32A(4) provides that the members must keep the
Minister informed about significant changes to the plan; and matters that arise
that might significantly affect the achievement of the objectives of the
plan.
Proposed subsection 32A(5) provides that the plan must include
details of:
• assumptions about the College’s operational
environment;
• the College’s strategic
directions;
• performance indicators for the College;
• a
review of the College’s performance against previous corporate
plans;
• analysis of risk factors affecting the College’s
performance;
• human resource strategies and industrial relations
strategies.
Proposed subsection 32A(6) provides that the plan must also
cover any other matters the Minister requires, which may include further details
about the matters in subsection (5).
Proposed subsection 32A(7) provides
that in preparing the plan, the members must take account of any notices the
Minister gives to the Council under subsection (8).
Proposed subsection
32A(8) provides that the Minister may give a written notice to the Council
concerning the Minister’s views about the appropriate strategic
direction(s) of the College and the manner in which the College should perform
its non-academic functions.
Proposed
section 32B Minister’s response to corporate plan
Proposed
subsection 32B(1) provides that the Minister must respond to a corporate plan
within 60 days of being given the plan.
Proposed subsection 32B(2)
provides that the Minister’s response may include a direction to the
members to vary the plan.
Proposed subsection 32B(3) provides that a
direction under subsection (2) must be in writing and must set out the
Minister’s reasons for the direction
Proposed subsection 32B(4)
provides that if directing a variation of the corporate plan, the Minister must
consider:
• the objectives and policies of the Commonwealth;
and
• the objects of the Maritime College Act 1978;
and
• any other maters the Minister thinks appropriate.
Proposed
subsection 32B(5) provides that if the Minister’s response includes a
direction to vary the corporate plan, the members must prepare a revised plan
and give it to the Minister within 28 days after being given the
response.
Proposed section 32C
Performance indicators
Provides that when including details of the
performance indicators for the College in the corporate plan, the members must
consider:
• the College’s financial viability and its financial
viability in the future; and
• the capacity of the College to provide
to students places in courses of study and conduct research, at a level
appropriate to a reputable higher education provider; and
• the
College’s capacity to comply with the Higher Education Support Act
2003; and
• any other consideration that the members think
appropriate affecting the performance of the College.
Item 89
Transitional provision
A transitional provision which provides that a
person who immediately before the commencement of this Part had been appointed
under section 26 of the Maritime College Act 1978 as Principal continues
to hold office as Principal on and after the commencement of this Part for the
balance of the term of his/her appointment.
Part 6 - Marcus
Oldham College
Higher Education
Funding Act 1988
Item 90 Subsection 4(1) (Table
B)
Omits “Marcus Oldham College” from the list of
institutions in Table B of subsection 4(1). This means the College will no
longer be eligible for grants for expenditure for limited operating purposes
under section 16 in respect of the 2004 funding year [also see item 91].
However, item 92 inserts a new section to provide for the Minister to determine
a special purpose grant payment for the College for 2004.
Item 91
Paragraph 18(2)(a)
Repeals paragraph 18(2)(a) to remove The
University of Notre Dame Australia (a Table A institution), Marcus Oldham
College and Avondale College (Table B institutions) from exemption from the
condition of grant in paragraph 18(1)(d) in relation to operating grants and
limited operating grants under sections 15 and 16. This reflects both changes
made under this Part and the new arrangements for Commonwealth funding of higher
education institutions under the Higher Education Support Act
2003.
Item 92 After section
20A
Proposed section 20B Grant to
Marcus Oldham College
Inserts a new section 20B to give the Minister
the power to determine a ‘special purpose grant’ to Marcus Oldham
College for 2004 which must not exceed $2,095,000.
Item 93
Paragraph 34(4)(a)
Amends subsection 34(4) to remove reference to
Marcus Oldham College from the definition of institution for the
purposes of Chapter 4 (dealing with the Higher Education Contribution Scheme) to
reflect the amendments made by Part 6 of Schedule 2.
Item 94
Subsection 98A(1) (paragraph (b) of the definition of appropriate
officer)
Amends paragraph (b) of the definition of
appropriate officer in subsection 98A(1) to remove reference to
Marcus Oldham College for the purpose of Chapter 4A (dealing with the
Post-graduate education loan scheme) to reflect the amendments made by Part 6 of
Schedule 2.
Part 7 – Other
amendments
Items 95, 98-103 and 125-168
Make
consequential amendments to A New Tax System
(Family Assistance) (Administration) Act 1999, Disability Services Act 1986,
Equal Opportunity for Women in the Workplace Act 1999, Fringe Benefits
Tax Assessment Act 1986, Income Tax Assessment Act 1936, Income Tax
Assessment Act 1997, Social Security Act 1991, Taxation Administration Act
1953,and Taxation (Interest on Overpayments and Early Payments) Act 1983
to reflect the repeal of the Higher Education Funding Act 1988 and
its replacement and supplementation by the new Higher Education Support Act
2003.
Bankruptcy Act 1966
Items 96-97
After subsection 82(3AA)
Item 96 repeals the note to subsection 82(1)
of the Bankruptcy Act 1966 [the note referred to the Higher Education
Funding Act 1988] and item 97 amends section 82 by inserting a new
subsection (3AB) which provides that a debt incurred under Part 4-1 of the
Higher Education Support Act 2003 is not provable in
bankruptcy.
Specifically, this means that a HELP debt, an accumulated
HECS-HELP debt or an accumulated FEE-HELP/OS-HELP debt would not be a provable
debt within the meaning of the Bankruptcy Act 1966.
Higher Education Funding Act 1988
Item 104
Subsection 106L(1)
Amends subsection 106L(1) to have the effect of
providing the Secretary with the power to remit a PELS semester
debt.
Item 105 Subsection 106L(2)
Amends subsection
106L(2) to have the effect of providing Secretary with the power to remit the
whole or part of a person’s BOTP study period debt.
Items
106-108 Paragraphs 106L(2)(a) and (c) and subsection
106L(3B)
Technical amendments to the wording of paragraphs
106L(2)(a), 106L(2)(c) and subsection 106L(3B) as a result of amendment made
under Item 105.
Item 109 Subparagraphs 106L(3B)(a)(i) and
(b)(i)
Amends subparagraphs 106L(3B)(a)(i) and (b)(i) to replace the
reference to “an HEC semester debt” with “a semester
debt” to reflect the provisions in the Higher Education Support Act
2003.
Item 110 After paragraph 106L(3B)(b)
Inserts
new paragraphs 106L(3B)(ba) and (bb). Paragraph 106L(3B)(ba) provides that for
the purpose of BOTP study period debt, if a person withdraws his/her enrolment,
has incurred a BOTP semester debt for the BOTP course and withdraws his/her
enrolment for the course for the study period and the institution at which the
person was enrolled gives notice to the person that the withdrawal has taken
effect the “withdrawal day” takes effect on the day specified in the
notice.
Paragraph 106L(3B)(bb) provides that if a person has incurred an
BOTP semester debt and paragraph (ba) does not apply and the person does not
complete the BOTP course for which he/she was enrolled for the study period, the
“withdrawal day” is the last day of the study
period.
Item 111 Paragraph 106M(1)(a)
Amends paragraph
106M(1)(a) and replaces the reference to “an HEC semester debt or OL study
period debt” with “semester debt” to reflect the provisions in
the Higher Education Support Act 2003.
Item 112 Actions by
appropriate officers of institutions
Transitional provision that has
the effect of providing that any action by an officer of an institution before
the commencement of item 112 that could have been done by the Secretary under
section 106L or 106M has effect after commencement as if it has been done by the
Secretary having the power to do so and had so delegated those
powers.
Items 113 and 114 Subsection
106PA(2)
Subsection 106PA(2) as amended by items 113 and 114 will
provide that if the amount of a debt is less than $500 but not less than $455,
the debtor is taken to pay off the total debt if he/she pays $454 in respect of
the debt.
Item 115 Subsection 106PA(3)
(formula)
Repeals the formula in subsection 106PA(3) and replaces it
with:
This has the effect of reducing the up-front payment
discount for debts over $500 under Chapter 5A from 15% to
10%.
Item 116 Subsection 106PA(4) (formula)
Replaces
the formula in subsection 106PA(4) with:
This has the effect
of reducing from 15% to 10% the up-front payment discount for payments of $500
or more in part settlement of debts under Chapter 5A.
Items
117-119 Subsection 106PA(4) (example)
Amend the example to
subsection 106PA(4) to reflect the changes made by item 116.
Item
120 Paragraph 106Q(1)(b)
Amends paragraph 106Q(1)(b) to omit
“the person had an accumulated HEC debt” and
substitutes:
“the person:
(i) had an accumulated HEC debt;
or
(ii) if the 1 June occurs in the year 2006 or a later year—had an
accumulated HECS-HELP debt (within the meaning of the Higher Education
Support Act 2003) or an accumulated FEE-HELP/OS-HELP debt (within the
meaning of that Act), or both;”
This is one of the conditions
(subject to subsection 106Q(7) which will make a person liable to pay to the
Commonwealth in reduction of his/her relevant debt an amount equal to so much of
that relevant debt as does not exceed the percentage of the person's HEC
repayment income that is applicable in accordance with a table in the
subsection. This amendment is made as a consequence of the Higher Education
Support Act 2003.
Items 121-122 Subsection
106Y(2)
Make provision for the addition of new paragraphs 106Y(2)(f)
and (g) providing for the order of application of any money paid by a person to
meet the person's debts to the Commonwealth under Chapter 5A if the person has
not given any directions.
These amendments are made as a consequence of
the Higher Education Support Act 2003.
Item 123 At the end
of section 106Y
Inserts a new subsection 106Y(3) which provides that
in section 106Y, HECS-HELP debt, FEE-HELP debt and
OS-HELP debt have the same meanings as in the Higher Education
Support Act 2003. These definitions are necessary for the amendments made
by item 122.
Item 124 At the end of section
112
Amends section 112 by adding new subsections 112(3) to (5) which
provide for the delegation of the Secretary’s powers under sections 106L
and 106M to a review officer of an institution. Proposed subsection 112(4)
provides that, in exercising powers under a delegation made under subsection
112(3), the delegate must comply with any directions of the Secretary and
proposed subsection 112(5) defines the term review
officer.