Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 5 - EDUCATION
OUTLINE
281. This schedule contains consequential amendments to the following Acts in the Education portfolio:
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- Education Services for Overseas Students Act 2000
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- Higher Education Funding Act 1988
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- Higher Education Support Act 2003
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- Tertiary Education Quality and Standards Agency Act 2011
AMENDMENTS
General terminology changes
282. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the 'Administrative Appeals Tribunal', the 'AAT' and the 'Administrative Appeals Tribunal Act 1975', and replacing them with references to the 'Administrative Review Tribunal', the 'ART' and the 'Administrative Review Tribunal Act 2024'. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the relevant provisions continue to operate in substantively the same way in the new Tribunal.
Education Services for Overseas Students Act 2000
Item 1: Section 5
Updating definitions
283. This item inserts a definition of ART member, which means a member of the ART within the meaning of the ART Bill. In the ART Bill, the term 'member' includes all members of the Tribunal – the President, Deputy Presidents (judicial and non-judicial), senior members and general members.
Item 2: Section 5 (definition of tribunal member )
Terminology changes
284. This item repeals the definition of tribunal member which is replaced by the definition of ART member as inserted by item 1. See explanation of general terminology changes above.
Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14: Paragraph 53B(3)(b), subsection 128(1), paragraph 128(2)(b), subsection 128A(1), paragraph 128A(2)(b), section 129 (heading), subsection 129(1), section 169AA, subsection 169AD(1) (note), paragraph 169AE(4)(c), section 169AG (heading) and subsection 169AG(1)
Terminology changes
285. These items amend terminology. See explanation of general terminology changes above.
Higher Education Funding Act 1988
Item 15: Subsection 50(1)
Terminology changes
286. This item amends terminology. See explanation of general terminology changes above.
Item 16: Subsection 50(2)
Updating legislative references
287. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Subsection 41(2) of the AAT Act provides that the AAT may make orders staying or otherwise affecting the implementation of a decision that is under review by the AAT. This matter is prescribed in subclause 32(2) of the ART Bill. This amendment is technical in nature and ensures subsection 50(2) of the Higher Education Funding Act 1988 continues to operate in substantively the same way in relation to the Tribunal.
Items 17 and 18: Subsection 51(1)
Updating legislative references
288. These items update legislative references to provisions of the AAT Act to instead refer to the equivalent provisions of the ART Bill. Section 28 of the AAT Act provides that, subject to exceptions, people whose interests are affected by the reviewable decision may seek a statement of reasons for the decision. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if it has already been given. These references have been updated to reflect the equivalent provisions in the ART Bill (clause 268 and subclause 269(7) respectively).
289. These amendments are technical in nature and ensure subsection 51(1) of the Higher Education Funding Act 1988 continues to operate in substantively the same way in relation to the Tribunal.
Items 19, 20, and 21: Subsection 78(6), subparagraph 106L(5)(b)(ii) and section 106M (heading)
Terminology changes
290. These items amend terminology. See explanation of general terminology changes above.
Items 22 and 23: Paragraph 106M(4)(b) and subsection 106M(6)
Terminology changes and updating legislative references
291. These items amend terminology. See explanation of general terminology changes above.
292. Item 22 omits the requirement that a notice of decision by the Secretary not to remit the whole or a part of a semester debt must include a statement to the effect that the applicant may apply to the Tribunal for review within 28 days of receiving the notice. Instead, the notice must refer to the ability to apply for review subject to the ART Bill. This has the effect that the notice of a decision to remit or not to remit a semester debt under the Higher Education Funding Act 1988, refers to the timeframes and processes to apply for review as prescribed by the rules made under the ART Bill.
Items 24 and 25: Paragraph 106MA(1)(a) and subsection 106MA(2)
Terminology changes
293. These items amend terminology. See explanation of general terminology changes above.
Item 26: Subsection 106MA(2)
Terminology change
294. This item amends terminology so that the reference to the 'Registrar of the Tribunal' is substituted with the 'Tribunal'. This clarifies that the Secretary on reconsideration of a decision under review must notify the Tribunal of the decision made on that review, rather than the Principal Registrar. This maintains consistency across similar provisions involving requirements for written notifications to the Tribunal. This amendment is technical in nature and ensures subsection 106MA(2) of the Higher Education Funding Act 1988 continues to operate in substantively the same way in relation to the Tribunal.
Item 27: Subsection 106MA(5)
Terminology change
295. This item amends terminology. See explanation of general terminology changes above.
Item 28: Subsection 106MA(5)
Terminology change
296. This item amends terminology so that the reference to the 'Registrar of the Tribunal' is substituted with the 'Tribunal'. This clarifies that a notice in writing to withdraw an application may be made to the Tribunal instead of being made specifically to the Principal Registrar. This maintains consistency across similar provisions involving requirements for written notifications to the Tribunal. This amendment is technical in nature and ensures subsection 106MA(5) of the Higher Education Funding Act 1988 continues to operate in substantively the same way in relation to the Tribunal.
Item 29: Paragraph 106MA(6)(a)
Terminology change
297. This item amends terminology. See explanation of general terminology changes above.
Items 30 and 31: Subsection 106X(1) and paragraph 106X(2)(a)
Terminology changes
298. These items amend terminology. See explanation of general terminology changes above.
Items 32 and 33: Paragraph 106X(2)(b)
Updating legislative references
299. These items update legislative references to provisions of the AAT Act to instead refer to the equivalent provisions of the ART Bill. Section 28 of the AAT Act provides that, subject to exceptions, people whose interests are affected by the reviewable decision may seek a statement of reasons for the decision. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if it has already been given. These references have been updated to reflect the equivalent provisions in the ART Bill (clause 268 and subclause 269(7) respectively).
300. These amendments are technical in nature and ensure paragraph 106X(2)(b) of the Higher Education Funding Act 1988 continues to operate in substantively the same way in relation to the Tribunal.
Higher Education Support Act 2003
Items 34 and 35: Paragraph 179-20(b) and section 203-1
Terminology changes
301. These items amend terminology. See explanation of general terminology changes above.
Items 36 and 37: Section 209-5 (note) and section 209-10 (note)
Updating legislative references
302. These items update legislative references to provisions of the AAT Act to instead refer to the equivalent provisions of the ART Bill. Section 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. These matters are prescribed in clause 266 of the ART Bill. This amendment is technical in nature and ensures the notes to subsection 209-5(6) and section 209-10 of the Higher Education Support Act 2003 remains accurate.
Items 38, 39, 40, 41 and 42: Division 212 of Part 5-7 (heading), section 212-1 (heading), subsection 212-1(1), paragraph 75(b) of Schedule 1A and clause 90 of Schedule 1A
Terminology changes
303. These items amend terminology. See explanation of general terminology changes above.
Items 43 and 44: Clause 95 of Schedule 1A (note) and clause 96 of Schedule 1A (note)
Updating legislative references
304. These items update legislative references to provisions of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. These matters are prescribed in clause 266 of the ART Bill. These amendments are technical in nature and ensure the notes to clause 95 and clause 96 of Schedule 1A of the Higher Education Support Act 2003 remain accurate.
Items 45, 46 and 47: Subdivision 16-D of Schedule 1A (heading), clause 97 of Schedule 1A (heading) and clause 97 of Schedule 1A
Terminology changes
305. These items amend terminology. See explanation of general terminology changes above.
Tertiary Education Quality and Standards Agency Act 2011
Items 48, 49 and 50: Section 183 (notes 1 and 2), section 187 (heading) and section 187
Terminology changes
306. These items amend terminology. See explanation of general terminology changes above.
Items 51 and 52: Section 187C (note) and section 187D (note)
Updating legislative references
307. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. These matters are prescribed in clause 266 of the ART Bill. This amendment is technical in nature and ensures the notes to sections 187C and 187D of the Tertiary Education Quality and Standards Agency Act 2011 remain accurate.
Items 53 and 54: Subsection 187E (heading) and subsection 187E(1)
Terminology changes
308. These items amend terminology. See explanation of general terminology changes above.