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 DETERMINATION
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, a 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.
Following recent amendments to both the HESA and the Educational Services for Overseas Students Act 2000 , Carnegie Mellon University became the first overseas higher education provider listed in Table C in section 16-22 of the HESA. Carnegie Mellon University is now seeking DGR status for its Australian branch.
The effect of this declaration is to add Carnegie Mellon University to Table B in subsection 4(1) of the Act, which means that it is a ‘higher education institution’ under the Act, thus meeting the requirements of the ITAA.
CONSULTATION
Prior to drafting the declaration, the Department consulted with the Australian Taxation Office through the Minister for Revenue, the South Australian Premiers Department and with Carnegie Mellon University. Any further consultation was regarded as unnecessary as the instrument deals only with Carnegie Mellon University, enabling it to obtain DGR status.
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.