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States Grants (Primary and Secondary Education Assistance) Bill 2000

Part 4 Varying lists

Division 1 Simplified outline of Part

35   Simplified outline

             (1)  This section is a simplified outline of this Part.

             (2)  The list of non-government schools and the list of approved school systems may be varied only for a reason specified in this Act. The reasons include the following:

                     (a)  to change funding levels;

                     (b)  to change approved authorities;

                     (c)  to change systemic status;

                     (d)  to include a new level of education;

                     (e)  to include a new location;

                      (f)  to include distance education;

                     (g)  to include a new school;

                     (h)  to correct clerical errors.

             (3)  A variation is to be made by determination by the Minister.



 

Division 2 Varying lists of non-government schools and approved school systems

36   Varying list of non-government schools

             (1)  Any variation of the list of non-government schools is to be made by determination by the Minister.

Note:          For the circumstances in which a variation of the list of non-government schools may be made, see subsections (2), (3), (4) and (5) and sections 38, 42, 43, 44, 46, 49 and 110.

             (2)  If a school in a State that is included in the list ceases to be recognised by the State for a particular level of education, the Minister may vary the list to remove the reference to that level of education for the school.

             (3)  If a school in a State that is included in the list ceases to be approved in accordance with the law of the State to provide distance education for a particular level of education at a particular location, the Minister may vary the list to remove the reference to distance education for that level of education at that location.

             (4)  If a school in a State that is included in the list:

                     (a)  ceases to be recognised by the State Minister; or

                     (b)  starts to be conducted for profit;

the Minister may vary the list to remove the name of the school from the list.

             (5)  The Minister may vary the list:

                     (a)  under another provision of this Act; or

                     (b)  to correct clerical errors or to make alterations of a formal kind, including to remove from the list:

                              (i)  the name of a school that has ceased to exist; or

                             (ii)  the address of a location at which a school has ceased to provide education; or

                            (iii)  a reference to a level of education at a school that has ceased to provide education at that level.

Note:          Section 50 requires the Minister to give notice of the determination to the approved authority.

37   Varying list of approved school systems

             (1)  Any variation of the list of approved school systems is to be made by determination by the Minister.

Note:          Section 50 requires the Minister to give notice of the determination to the approved authority.

             (2)  The Minister may vary the list to correct clerical errors or to make alterations of a formal kind, including the removal from the list of the name of a school system that has ceased to exist.



 

Division 3 Change of funding level

38   Change of funding level of non-government school due to incorrect SES score

             (1)  The approved authority of a school that is included in the list of non-government schools with an SES funding level or a year 2000 funding level may apply to the Minister to vary the list to change that level if the approved authority considers that the school’s SES score:

                     (a)  has not been determined correctly; or

                     (b)  is no longer accurate because of a significant change in the school’s circumstances.

             (2)  An application under this section must:

                     (a)  be in writing; and

                     (b)  set out the name and address of the school and of the approved authority of the school; and

                     (c)  if the school is a systemic school—set out the name of the approved school system; and

                     (d)  set out the reasons why the approved authority considers the funding level should be changed.

             (3)  If the Minister is satisfied that the school’s SES score has not been determined correctly or is no longer accurate because of a significant change in the school’s circumstances, the Minister must:

                     (a)  if the school has an SES funding level—determine a different SES funding level of the school; and

                     (b)  if the school has a year 2000 funding level—determine an SES funding level of the school; and

                     (c)  make appropriate variations of the list of non-government schools.

             (4)  The Minister must refuse the application if the Minister is not satisfied of either of the matters in subsection (3).

Note:          Section 50 requires the Minister to give notice of the determination to the approved authority.

             (5)  A variation under this section must not take effect for a program year before the program year in which the application is made.



 

Division 4 Change of approved authority

39   Application of Division

             (1)  This Division applies in relation to:

                     (a)  a proposal for a new body to be approved as the approved authority of a non-systemic school; or

                     (b)  a proposal for a new body to be approved as the approved authority of an approved school system.

             (2)  However, this Division does not apply to a proposal that is consequential on a proposal to which Division 5 or 6 applies.

40   How to obtain Ministerial approval of proposal

             (1)  The approved authority (the existing authority ) of a non-systemic school or of an approved school system may apply in writing to the Minister for approval of a proposal.

             (2)  The application must:

                     (a)  set out details of the school or of the school system (as appropriate) and of the new body; and

                     (b)  state whether the new body agrees to fulfil obligations (if any) of the existing authority under this Act or the former Act in relation to the school or the school system that have not been fulfilled; and

                     (c)  request the Minister to approve the new body as the approved authority of the school or of the school system.

41   Decision by the Minister

             (1)  The Minister may:

                     (a)  approve the proposal; or

                     (b)  refuse the application.

             (2)  The Minister must not approve the proposal unless:

                     (a)  the new body is recognised by the State Minister under the law of the State in which the non-systemic school or the schools in the approved school system are situated (if that law requires the new body to be recognised); and

                     (b)  the school, or the schools in the system, are not conducted for profit; and

                     (c)  if the application relates to a non-systemic school—the new body is a body corporate; and

                     (d)  the agreement made by the new body with the Commonwealth as mentioned in subsection 18(1) provides that the new body agrees to fulfil the obligations (if any) of the existing authority under this Act or the former Act that have not been fulfilled in respect of the school or of the schools in the system.

42   Varying list of non-government schools

                   If the Minister approves the proposal, the Minister must:

                     (a)  determine that the new body is the approved authority of the non-systemic school or of the approved school system (as appropriate); and

                     (b)  make the appropriate variations of the list of non-government schools.

Note:          Section 50 requires the Minister to give notice of the determination to the approved authority.



 

Division 5 Change in systemic status

43   Proposal for a non-systemic school to become a member of an approved school system

             (1)  The approved authority of a non-systemic school may apply in writing to the Minister for approval of a proposal for the school to become a member of an approved school system.

             (2)  The application must:

                     (a)  set out the name and address of the school and of the approved school system; and

                     (b)  be accompanied by evidence that the approved authority of the approved school system agrees to the school becoming a member of the system; and

                     (c)  state the earliest program year to which the proposal relates; and

                     (d)  state whether the approved authority of the approved school system agrees to fulfil the obligations (if any) of the approved authority of the school under this Act or the former Act that have not been fulfilled; and

                     (e)  request the Minister to approve the proposal.

             (3)  The Minister may:

                     (a)  approve the proposal; or

                     (b)  refuse the application.

             (4)  The Minister must not approve the proposal unless:

                     (a)  the agreement made by the approved authority of the school system with the Commonwealth as mentioned in subsection 18(1) (or the agreement as varied) applies to the school for the earliest program year to which the proposal relates, and all later program years; and

                     (b)  the agreement has been varied to provide that the approved authority of the approved school system has agreed to fulfil the obligations (if any) of the approved authority of the school under this Act or the former Act that have not been fulfilled.

             (5)  If the Minister approves the proposal, the Minister must make the appropriate variations to the list of non-government schools.

Note:          Section 50 requires the Minister to give notice of the determination to the approved authority.

44   Proposal for a school to cease to be a member of an approved school system

             (1)  Either of the following may apply in writing to the Minister to approve a proposal for a school that is a member of an approved school system to cease to be a member of the system:

                     (a)  the body (the responsible body ) that is to be principally responsible for the school under the proposal; or

                     (b)  the approved authority of the approved school system.

             (2)  The application must:

                     (a)  set out the name and address of the school and of the responsible body; and

                     (b)  state the earliest program year to which the proposal relates; and

                     (c)  state whether the responsible body agrees to fulfil the obligations (if any) of the approved authority of the approved school system under this Act or the former Act in relation to the school that have not been fulfilled; and

                     (d)  request the Minister to approve the proposal.

             (3)  The Minister may:

                     (a)  approve the proposal; or

                     (b)  refuse the application.

             (4)  The Minister must not approve the proposal unless:

                     (a)  if the application is made by the responsible body:

                              (i)  the application is accompanied by evidence that the approved authority of the approved school system agrees to the school ceasing to be a member of the school system; or

                             (ii)  the Minister has given notice to the approved authority of the approved school system in relation to the proposal; and

                     (b)  the school is not conducted for profit; and

                     (c)  the responsible body is a body corporate; and

                     (d)  the responsible body has made an agreement with the Commonwealth as mentioned in subsection 18(1) for the earliest program year to which the proposal relates, and all later program years; and

                     (e)  the agreement provides that the responsible body agrees to fulfil the obligations (if any) of the approved authority of the approved school system under this Act or the former Act in relation to the school that have not been fulfilled.

             (5)  If the Minister approves the proposal, the Minister must:

                     (a)  make the appropriate variations to the list of non-government schools; and

                     (b)  determine that the responsible body is the approved authority of the school.

Note:          Section 50 requires the Minister to give notice of the determination to the approved authority.



 

Division 6 Changes to schools or education provided

45   Application to vary list of non-government schools

Location proposal

             (1)  The approved authority of a school may apply to the Minister to have the list of non-government schools varied to take account of a location proposal.

             (2)  In this Act:

location proposal means a proposal to vary the list of non-government schools to take account of a change as a result of which a systemic school or a non-systemic school will provide:

                     (a)  a new level of education at a location for which the school is already included in the list for the provision of another level of education; or

                     (b)  education, or a level or education, at another location; or

                     (c)  distance education for a level of education and at a location for which the school is already included in the list.

New school proposal

             (3)  An application to the Minister to have the list of non-government schools varied to take account of a new school proposal in respect of a school may be made by:

                     (a)  if the school is to be included in an approved school system—the approved authority of the system; or

                     (b)  otherwise—the body principally responsible for the school.

             (4)  In this Act:

new school proposal means a proposal to include in the list of non-government schools:

                     (a)  a school formed as a result of the amalgamation of a systemic or non-systemic school with another school, whether or not the other school is included in the list; or

                     (b)  a school formed as a result of the separation of a systemic school or a non-systemic school into 2 or more schools; or

                     (c)  a new school; or

                     (d)  an existing school that is not already included in the list.

Application to vary list

             (5)  An application under this section must:

                     (a)  be in writing; and

                     (b)  set out details of the proposal; and

                     (c)  subject to subsection (6), state the earliest program year to which the variation is to apply; and

                     (d)  if the applicant considers that there are exceptional circumstances that justify the variation applying to the program year immediately preceding the program year in which the application is made—set out those circumstances; and

                     (e)  request the Minister to vary the list to take account of the proposal.

             (6)  The earliest program year to be stated in an application for the purposes of paragraph (5)(c) is to be:

                     (a)  the program year in which the application is made; or

                     (b)  the program year immediately following the program year in which the application is made.

                     (c)  if the applicant considers that there are exceptional circumstances that justify the variation applying to the program year immediately preceding the program year in which the application is made—that preceding program year.

46   Decision by Minister on application

             (1)  The Minister may:

                     (a)  make a determination varying the list of non-government schools to take account of the proposal; or

                     (b)  refuse the application.

The Minister’s power under paragraph (a) is subject to the requirements in sections 47 and 48.

Note:          Section 49 requires the Minister to also vary the list to include a funding level of a school that is covered by a new school proposal.

             (2)  If the variation is to take account of a new school proposal under which the school concerned is not included in an approved school system, the Minister must determine the body that is to be the approved authority of the school.

Note:          Section 50 requires the Minister to give notice of the determination to the approved authority.

47   Prerequisites for variation of list

             (1)  The Minister must not make a determination varying the list of non-government schools to take account of the proposal unless the applicable requirements of this section have been satisfied.

             (2)  The requirements for a location proposal are:

                     (a)  education has begun to be provided by the school at the location concerned in accordance with the relevant paragraph of the definition of location proposal ; and

                     (b)  provision of education by the school at the location concerned in accordance with the relevant paragraph of the definition of location proposal has been recognised by the State Minister of the State in which the school is situated; and

                     (c)  if the proposal relates to distance education—the school is approved in accordance with the law of the State in which it is located to provide distance education; and

                     (d)  the requirements under paragraphs (a), (b) and (c) are satisfied before the schools census day for the school in the earliest program year to which the variation is to apply.

             (3)  The requirements for a new school proposal are:

                     (a)  education has begun to be provided at the school; and

                     (b)  education at the school has been recognised by the State Minister of the State in which the school is situated; and

                     (c)  the school is not conducted for profit; and

                     (d)  if the school is not included in an approved school system—the applicant for the proposal is a body corporate; and

                     (e)  the requirements under paragraphs (a), (b), (c) and (d) are satisfied before the schools census day for the school in the earliest program year to which the variation is to apply.

48   Application relating to previous program year

                   The Minister may not vary the list of non-government schools with effect from a date in the program year preceding the program year in which the application is made unless the Minister is satisfied that there are exceptional circumstances that justify the variation taking effect in that preceding program year.



 

Division 7 Miscellaneous

49   Variation to include funding level in certain circumstances

             (1)  If the Minister varies the list of non-government schools under this Part in relation to a school in any of the circumstances set out in subsection (2), he or she must:

                     (a)  determine the school’s SES funding level; and

                     (b)  vary the list to include that funding level.

             (2)  The circumstances are the inclusion in the list of:

                     (a)  a school formed as a result of the amalgamation of a non-systemic school or a systemic school (except a systemic school in an approved Catholic school system) with another school that is not included in an approved Catholic school system, whether or not the other school is included in the list; or

                     (b)  a school formed as a result of the separation of a non-systemic school or a systemic school (except a systemic school in an approved Catholic school system) into 2 or more schools; or

                     (c)  a new school (except a school which is to become a member of an approved Catholic school system); or

                     (d)  an existing school (except a school which is to become a member of an approved Catholic school system) that was not included in the list immediately before the variation of the list; or

                     (e)  a school that has ceased to be a member of an approved Catholic school system.

Note:          The circumstances do not include the formation of a school as a result of:

(a)           the amalgamation of a systemic school that is a member of an approved Catholic school system with a non-systemic school or with another systemic school (whether or not that other school is a member of an approved Catholic system); or

(b)           the separation of a systemic school in an approved Catholic school system into 2 or more schools;

                   because the school formed as a result of the amalgamation, or the schools resulting from the separation, would ordinarily be included in the relevant approved Catholic school system.

50   Minister to give notice to authority of determination

                   If the Minister makes a determination under this Part, the Minister must give written notice of the determination to the approved authority concerned (if any).

51   Determination may be given retrospective effect

                   Subject to subsection 38(5) and section 48, a determination under this Part may take effect from a day before the day on which the determination was made, but not before 1 January 2001.

52   Overseas students disregarded

             (1)  Overseas students are to be disregarded for the purposes of this Part.

             (2)  In this Act:

overseas student means:

                     (a)  a person who:

                              (i)  has a visa; or

                             (ii)  is included in a visa;

                            in force under the Migration Act 1958 that permits the person to travel to Australia for the purpose of undertaking a course provided by a body; or

                     (b)  a person, or a person included in a class of persons, prescribed by the regulations for the purposes of this paragraph;

but does not include a person, or a person included in a class of persons, determined by the Minister not to be a person or class of persons to whom this definition applies.

             (3)  A determination for the purposes of the definition of overseas student in subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .