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.
Overview
The Explanatory Statement for F2008L03074 concerns the revocation of approval for the Gestalt Association of Queensland Incorporated as a higher education provider under the Higher Education Support Act 2003. This legislative instrument was introduced to address the gap where the Higher Education Support Act does not explicitly cover the revocation of approval for higher education providers that cease to exist as a body corporate or have been dissolved. The Minister for Education issued this notice under the authority granted by subsection 16-50(1) of the HESA and subsection 33(3) of the Acts Interpretation Act 1901, which allows for the revocation of approvals when the relevant body corporate no longer exists. The Gestalt Association of Queensland Incorporated, which was previously approved as a higher education provider on 26 March 2007, ceased to exist on 28 March 2008, leading to the necessity of this revocation. The revocation notice is intended to formally revoke the approval given to the Gestalt Association of Queensland Incorporated, and it will take effect the day after it is registered on the Federal Register of Legislative Instruments.
Scope and Application
The explanatory statement outlines the revocation of the Gestalt Association of Queensland Incorporated's approval as a higher education provider (HEP) under the Higher Education Support Act 2003. This revocation is necessary due to the Gestalt Association of Queensland Incorporated ceasing to exist as a body corporate following the voluntary winding up of its incorporation under the Associations Incorporation Act 1981 (Qld). The Minister for Education, relying on subsection 33(3) of the Acts Interpretation Act 1901, has issued this notice of revocation, which is a legislative instrument that must be registered on the Federal Register of Legislative Instruments. The Minister has delegated her powers under the Higher Education Support Act to relevant officials within the Department of Education, Employment and Workplace Relations, who are responsible for the administration and revocation processes. The revocation is effective from the day after its registration on the Federal Register of Legislative Instruments in accordance with the Legislative Instruments Act 2003.
Key Provisions
The main sections of the legislation (subsections 16-50(1) and 33(3)) allow the Minister for Education to revoke the approval of the Gestalt Association of Queensland Incorporated as a higher education provider (HEP). The revocation is based on the fact that the Gestalt Association of Queensland Incorporated has ceased to exist as a body corporate, following its voluntary winding up under the Associations Incorporation Act 1981 (Qld). The legislative basis for this revocation is the Acts Interpretation Act 1901, which grants the power to revoke an approval where necessary.
Under the Higher Education Support Act 2003 (HESA), the Minister has the authority to delegate the decision-making power to approve HEPs to the Secretary or an APS employee in the Department of Education, Employment and Workplace Relations (DEEWR). This delegation process was in effect when the Gestalt Association of Queensland Incorporated was approved as an HEP on 26 March 2007, and subsequently notified of this approval on the same day.
The Gestalt Association of Queensland Incorporated's status as a HEP was revoked because it ceased to exist as a body corporate following its voluntary winding up on 28 March 2008. The revocation of its approval was not subject to consultation as it applies to an entity that no longer exists. The notice of revocation is intended to formally revoke the instrument that approved the Gestalt Association of Queensland Incorporated as a HEP.
In terms of the obligations and requirements imposed by this legislation, the Gestalt Association of Queensland Incorporated, once approved as a HEP, would have been subject to certain standards and regulations in accordance with the HESA. However, since the association has ceased to exist as a body corporate, these obligations no longer apply. The revocation of its approval ensures that the Gestalt Association of Queensland Incorporated is no longer recognised as a HEP.
There are no specific offences, penalties, or civil/criminal consequences mentioned in the legislation for the breach of the revocation of approval as a HEP. However, it is important to note that any previous obligations or requirements under the HESA would cease to apply to the Gestalt Association of Queensland Incorporated once its approval was revoked. The notice of revocation comes into effect the day after it is registered on the Federal Register of Legislative Instruments (FRLI) in accordance with the Legislative Instruments Act 2003.