EXPLANATORY STATEMENT
Notice of revocation of approval as a higher education provider for the purposes of subsection 16-50(1) of the Higher Education Support Act 2003 (“the HESA”)
Issued by the authority of the Minister for Education
LEGISLATIVE BASIS FOR THE NOTICE OF REVOCATION
Subsection 16-50(1) of the HESA provides that the Minister must decide an application for approval as a higher education provider (“HEP”). Division 22 of the HESA deals with prescribed circumstances in which a body ceases to be a HEP, but these do not include the circumstance where the HEP has ceased to exist as a body corporate or has already been dissolved. For this reason, reliance is being placed in this case on subsection 33(3) of the Acts Interpretation Act 1901 (“the AIA”) to revoke the HEP approval of the Gestalt Association of Queensland Incorporated, whose incorporation as an association under the Associations Incorporation Act 1981(Qld) (“the Queensland Act”) has been voluntarily wound up.
Under subsection 33(3) of the AIA, the power to make, grant or issue any instrument (including rules, regulations or by-laws) under an Act includes the power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Subsection 33(3) of the AIA applies unless the contrary intention appears in an Act. There is no contrary intention to the application of subsection 33(3) of the AIA in this case.
A notice of revocation of an approval as a HEP is a legislative instrument that must be registered on the Federal Register of Legislative Instruments ("the FRLI").
BACKGROUND
Subsection 238-5(1) of the Act empowers the Minister to delegate all or any of the Minister’s powers under the HESA to the Secretary or an APS employee in the Department.
The Minister has delegated her powers under subsection 16-50(1) of the HESA to the Secretary and Deputy Secretary of the Department of Education, Employment and Workplace Relations (DEEWR) and to the Group Manager, Higher Education Group, DEEWR.
The Gestalt Association of Queensland Incorporated was approved by the Minister’s delegate as a HEP on 26 March 2007 by an Instrument of Approval (No 5 of 2007) made pursuant to subsection 16-50(1) of the HESA and the Minister’s delegate caused Gestalt Association of Queensland Incorporated to be notified of the approval under paragraph 16-50(1)(b) of the HESA. Under subsection 16-55(1) of the HESA, a notice of approval is a legislative instrument.
The Gestalt Association of Queensland Incorporated ceased to exist as a body corporate when its incorporation as an association under the Queensland Act was voluntarily wound up on 28 March 2008.
PURPOSE/ EFFECT OF THE NOTICE OF REVOCATION
The Gestalt Association of Queensland Incorporated has ceased to exist as a body corporate and the present notice of revocation is intended to revoke the instrument approving the Gestalt Association of Queensland Incorporated as a HEP.
CONSULTATION
Consultation was not undertaken and was not considered necessary in this case because the notice revokes an instrument of approval which applies to an entity that no longer exists.
COMMENCEMENT
The notice of revocation commences the day after it is registered on the FRLI in accordance with the Legislative Instruments Act 2003.