Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Higher Education Support (Transitional Provisions and Consequential Amendments) Bill 2003

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

 

 

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

 

 

OUTLINE

 

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

 

 

NOTES ON CLAUSES

 

 

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 5which 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 .