EXPLANATORY STATEMENT
Issued by the authority of the Minister for Education, Science and Training
Declaration under subsection 4(2) of the Higher Education Funding Act 1988
LEGISLATIVE BASIS FOR THE DECLARATION
Under subsection 4(2) of the Higher Education Funding Act 1988 (the Act), the Minister may declare that a Table in subsection 4(1) is amended in the manner specified in the declaration and, where such a declaration is made, the declaration has effect accordingly.
Section 110 of the Act provides that a declaration made by the Minister under subsection 4(2) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Minister has not delegated his powers under subsection 4(2) of the Act.
BACKGROUND
Higher Education Institutions which are established in Australia and operate on a not-for-profit basis may apply to the Australian Taxation Office for deductible gift recipient (DGR) status.
In order to be eligible for DGR status, one requirement of the Income Tax Assessment Act 1997 (ITAA) is that a higher education institution is either a public university or a ‘higher education institution within the meaning of the Higher Education Funding Act 1988’. The Act remains current for this purpose as the ITAA makes no reference to the subsequent enabling legislation, the Higher Eduction Support Act 2003 (HESA). As a consequence, in order for a higher education institution (that is not a public university) to gain DGR status, it must be added to a table in subsection 4(1) of the Act by means of a ministerial declaration under subsection 4(2) of the Act.
PURPOSE/ EFFECT OF DECLARATION
The effect of this declaration is to add the following institutions to Table B in subsection 4(1) of the Act: Australian College of Theology Council Incorporated; Australian Lutheran College; Christian Heritage College; Harvest Bible College Inc; Moore Theological College Council; Perth Bible College; Tabor College Incorporated (trading as Tabor Adelaide); Tabor College (NSW) Incorporated and Wesley Institute. This means that these institutions are ‘higher education institutions’ under the Act, thus meeting the requirements of the ITAA.
CONSULTATION
The Department of Education, Science and Training (DEST) has consulted with some individual non self-accrediting higher education institutions which have been approved as Higher Education Providers under the HESA, and with the Council of Private Higher Education (COPHE), the peak body representing all of the private higher education institutions listed in the Declaration. Both COPHE and the individual institutions consulted were in full agreement with this measure.
DEST has also consulted with the ATO about this declaration, and there was full agreement.
COMMENCEMENT
The instrument commences the day after it is registered on the Federal Register of Legislative Instruments in accordance with the Legislative Instruments Act 2003.