Higher Education Funding Act 1988 - Declaration under subsection 4(2) (10/10/2006)

Overview

The Higher Education Funding Act 1988, enacted by the Australian Parliament, aims to facilitate the funding of higher education institutions in Australia. The Act provides a legislative framework to ensure that eligible institutions can access necessary funding and support. A critical gap it addresses is the need for specific institutions to be recognised as eligible for funding and deductible gift recipient status under the Income Tax Assessment Act 1997. This is achieved through the inclusion of these institutions in a table within the Act, which requires a ministerial declaration. The Explanatory Statement for the legislative instrument F2006L03457, issued by the Minister for Education, Science and Training, clarifies that the purpose of this particular declaration is to amend the table in subsection 4(1) of the Act by adding Adelaide College of Divinity Incorporated and Campion Institute Limited. This addition recognises these institutions as eligible for funding under the Act, thus enabling them to gain deductible gift recipient status, in alignment with the policy objectives of the Act and the requirements of the ITAA. The declaration was made after extensive consultation with relevant stakeholders, including non-self-accrediting higher education institutions and the Australian Taxation Office, all of whom agreed with the measure.

Scope and Application

The Explanatory Statement for the legislative instrument F2006L03457 outlines a declaration made under subsection 4(2) of the Higher Education Funding Act 1988, which pertains to the amendment of a table in subsection 4(1) of the Act. This declaration, issued by the Minister for Education, Science and Training, adds Adelaide College of Divinity Incorporated and Campion Institute Limited to Table B, thereby recognising them as higher education institutions under the Act. This recognition is crucial as it allows these institutions to meet the eligibility criteria for deductible gift recipient status under the Income Tax Assessment Act 1997. The declaration is a legislative instrument in itself, governed by the Legislative Instruments Act 2003, and it comes into effect the day after its registration on the Federal Register of Legislative Instruments. Notably, the Minister has not delegated her powers under this section of the Act. The decision to make this declaration was preceded by consultations with relevant stakeholders, including the Australian Taxation Office, the Council of Private Higher Education, and the individual institutions themselves, all of whom supported the measure.

Key Provisions

This legislative instrument, issued under subsection 4(2) of the Higher Education Funding Act 1988, is a declaration by the Minister for Education, Science and Training that the Table in subsection 4(1) of the Act is amended to include specific institutions as 'higher education institutions'. This amendment is effective from the day it is registered on the Federal Register of Legislative Instruments in accordance with the Legislative Instruments Act 2003. The purpose of this declaration is to facilitate the eligibility of the named institutions, Adelaide College of Divinity Incorporated and Campion Institute Limited, for deductible gift recipient (DGR) status by recognising them as higher education institutions under the Act. This recognition is critical as it aligns with the requirements of the Income Tax Assessment Act 1997, which mandates that institutions seeking DGR status must be recognised as higher education institutions under the Higher Education Funding Act 1988. The Higher Education Funding Act 1988 requires that institutions that are not public universities but wish to gain DGR status must be added to the Table in subsection 4(1) of the Act through a ministerial declaration. The obligations placed on the parties, particularly the institutions named in the declaration, involve ensuring their compliance with the eligibility criteria set forth by the Income Tax Assessment Act 1997. They must maintain their not-for-profit status and adhere to any other conditions necessary for DGR status. Additionally, the Minister for Education, Science and Training must ensure that any institution added to the table meets the legislative requirements and has been appropriately consulted with as per the consultation process detailed in the explanatory statement. There are no explicit offences, penalties, or civil/criminal consequences stated in the legislation for non-compliance with this declaration. However, failure to maintain the necessary status or conditions for DGR recognition could result in loss of such status and potential tax implications under the Income Tax Assessment Act 1997. The institutions are expected to remain compliant with the higher education funding and tax regulations to continue benefiting from the DGR status. The consultation process ensures that all parties are in agreement with the inclusion of these institutions, reflecting a collaborative approach to legislative amendments.