8 Changes to non‑government schools and proposals for new non‑government schools
(1) A reference in this section to the approved authority of a school that is not part of an approved school system and is not included in the list, in relation to a change, or a proposal, to which this section applies, is a reference to the person or body principally responsible for the school.
(2) This section applies to a change as a result of which a systemic school or a non‑systemic school will:
(a) change its location;
(b) provide a new level of education at a location at which the school already provides education;
(c) amalgamate with another school that is included in the list;
(d) separate into 2 or more schools;
(e) change from a single sex school to a co‑educational school or from a co‑educational school to a single sex school;
(f) change from a day school to a boarding school or to a day and boarding school;
(g) change from a boarding school to a day school or to a day and boarding school;
(h) change from a day and boarding school to a day school or to a boarding school;
(j) become included in the list in respect of an additional level of education in respect of which the school is already providing education; or
(k) become included in the list in so far as it provides education at an additional location, being a location at which the school is already providing education.
(3) This section applies to a proposal under which the approved authority of an approved school system or of a non‑systemic school seeks to have the list changed so that:
(a) a new school, or an existing school that is not included in the list, becomes included in the list; or
(b) the list recognises the amalgamation of a school that is included in the list with a school that is not included in the list.
(4) Where the approved authority of an approved school system or of a non‑systemic school proposes to make a change referred to in subsection (2), or makes a proposal referred to in subsection (3), the authority shall give to the Minister, not later than 2 years, or such shorter period as the Minister, in special circumstances, may have allowed (in this section called the notification period), before 1 March in the year in which the change is intended to occur or the proposal is intended to take effect, a notice in writing:
(a) setting out particulars of the proposed change or proposal in accordance with a form approved in writing by the Minister; and
(b) requesting the Minister to give provisional approval to the proposed change or proposal.
(5) Where:
(a) the approved authority of an approved school system or of a non‑systemic school has notified the Minister (whether under this Act or the former Act) of a proposed change referred to in subsection (2) in the manner specified in subsection (4); and
(b) the Minister is satisfied that the clientele of the school after the change will not be significantly different to the clientele of the school before the change;
the Minister shall give provisional approval to the change.
(6) Where:
(a) the approved authority of an approved school system or of a non‑systemic school has notified the Minister (whether under this Act or the former Act) of a proposed change referred to in subsection (2) (other than a change to which subsection (5) applies), or of a proposal referred to in subsection (3), to which this section in the manner specified in subsection (4);
(b) in the case of a change to which this section applies—the Minister is satisfied that the clientele of the school after the change will be significantly different to the clientele of the school before the change;
(c) the Minister is satisfied that the change or proposal meets the eligibility criteria set out in subsection (7) or (8), as the case may be; and
(d) the Minister is satisfied that, having regard to the matters set out in subsection (9), the change or proposal should be approved;
the Minister shall give provisional approval to the change or proposal.
(7) The eligibility criteria referred to in paragraph (6)(c) in relation to a proposed change referred to in subsection (2) are that:
(a) such government and non‑government education authorities for the State in which the school is situated as the Minister considers appropriate have been given notice of the proposed change;
(b) if the change is made, the school or schools after the change will have reasonable prospects of being recognised by the State Minister for the State in which the school is situated;
(c) if the change is of the kind referred to in paragraph (2)(b) or (j)—the school has reasonable prospects of having, within the period of 2 years from the beginning of the year in which the change is proposed to be initiated, a number of students enrolled at the relevant level that is not fewer than the minimum number of students for that level; and
(d) if the change involves the separation of the school into 2 or more schools—each of the schools that will emerge from the separation has reasonable prospects of having, within the period of 2 years from the beginning of the year in which the change is proposed to be initiated, a number of students enrolled at each level at which education is provided at the school that is not fewer than the minimum number of students for that level.
(8) The eligibility criteria referred to in paragraph (6)(c) in relation to a proposal referred to in subsection (3) in relation to a school are that:
(a) such government and non‑government education authorities for the State in which the school is situated as the Minister considers appropriate have been given notice of the proposal;
(b) the school, or the school in so far as it provides education at a particular level or at a particular location, has reasonable prospects of being recognised by the relevant State Minister; and
(c) the school, or the school in so far as it provides education at a particular level, has reasonable prospects of having, within the period of 2 years from the beginning of the year in which the proposal is intended to take effect, a number of students enrolled at the relevant level that is not fewer than the minimum number of students for that level.
(9) The Minister shall, in deciding whether or not to give provisional approval to a proposed change (other than a change to which subsection (5) applies), or to a proposal, in relation to a school, have regard to:
(a) the plans (including the plans of the relevant government and non‑government education authorities) for the provision of education in the State, and in the locality, in which the school operates or will operate;
(b) the past, current and projected characteristics of that locality so far as the provision of education is concerned; and
(c) the priority that the proposed change or proposal should, in the opinion of the Minister, be accorded in relation to funding from the Commonwealth.
(10) Subject to subsection (11), where:
(a) the approved authority of an approved school system or of a non‑systemic school makes a change referred to in subsection (2) in relation to a school;
(b) the Minister has given provisional approval to the change;
(c) the change is recognised by the State Minister of the State in which the school is situated;
(d) if paragraph (7)(c) or (d) is applicable—the school or schools that emerge from the change have a number of students enrolled at the relevant level that is not fewer than the number referred to in that paragraph; and
(e) if the change consists of the amalgamation of a school with another school or the separation of a school into 2 or more schools—the school or schools that emerge from the change are not conducted for profit;
the Minister shall, by determination in writing, vary the list to take account of the change.
(11) The Minister shall not vary the list under subsection (10) in a case where a matter referred to in that subsection occurs after the end of 2 years from the beginning of the year in which the change was proposed to be initiated unless the Minister is satisfied there are exceptional circumstances justifying the variation.
(12) Subject to subsection (13), where:
(a) the Minister has given provisional approval to a proposal referred to in subsection (3) in relation to a school;
(b) the change involved in the proposal is recognised by the State Minister of the State in which the school is situated;
(c) the school has a number of students enrolled at the relevant level that is not fewer than the minimum number of students for that level;
(d) the school is not conducted for profit; and
(e) in the case of a non‑systemic school—the approved authority of the school is a body corporate;
the Minister shall, by determination in writing, vary the list to take account of the change.
(13) The Minister shall not vary the list under subsection (12) in relation to a school in a case where a matter referred to in that subsection occurs after the end of 2 years from the beginning of the year in which financial assistance was sought in respect of the school unless the Minister is satisfied there are exceptional circumstances justifying the variation.
(14) Where the Minister varies the list to take account of a change of the kind referred to in paragraph (2)(c) or (d) or of the change involved in a proposal to which this section applies by including in the list a non‑systemic school, or a non‑systemic school in so far as it provides education at a particular level or location, the Minister shall, having regard to the need of the school for financial assistance, determine in writing the funding level of the school and include in the list the level so determined.
(15) A funding level determined under subsection (14) in respect of a new non‑systemic school or a non‑systemic school that was not included in the list before the variation, other than:
(a) a special school;
(b) an Aboriginal community school;
(c) a school the proposal in relation to which was provisionally approved before 25 May 1988 under the former Act; or
(d) a school the proposal in relation to which was refused provisional approval before 25 May 1988 under the former Act where that decision is later reversed;
shall be any of the levels 1 to 6 specified in column 1 of Schedule 7 and no other level, and the level so determined shall not, at any time, be increased to a level greater than level 6 specified in that column.
(16) Where:
(a) the approved authority of an approved school system or of a non‑systemic school makes a change to which this section applies in relation to a school; and
(b) the Minister had not given provisional approval to that change;
the Minister may, by determination in writing, remove the school from the list.
(17) Where:
(a) the approved authority of an approved school system or of a non‑systemic school proposes to make a change, or makes a proposal, to which this section applies; and
(b) the Minister is not satisfied that he or she should give provisional approval to the change or the proposal;
the Minister shall, by notice in writing given to the approved authority, inform the authority of the decision, stating the reasons for the decision and inviting the authority to make, within such reasonable period as is specified in the notice, submissions in relation to the change or proposal.
(18) Where the approved authority of an approved school system or of a non‑systemic school makes submissions in accordance with subsection (17), the Minister shall reconsider the decision not to give provisional approval to the change or the proposal, taking those submissions into account, and shall notify the authority, in writing, of the decision on reconsideration and of the reasons for the decision.
(19) The reference in paragraph (2)(a) to a change in the location of a school includes a reference to a change in the location of a part of the school.
(20) Where the Minister makes a determination under this section, the Minister shall notify the relevant approved authority of the decision and of the reasons for the decision.
(21) A determination under this section may be expressed to take effect from a day before the day on which the determination was made.