EXPLANATORY STATEMENT
Approval and Notice of Approval under section 16-25 and subsection 16-50(1)
of the Higher Education Support Act 2003
Higher Education Provider Approval No. 1 of 2016
Issued by the authority of the Minister for Education and Training
Authority
Section 16‑25 of Higher Education Support Act 2003 (HESA) provides for the approval of bodies as Higher Education Providers by the Minister. Paragraph 16‑50(1)(a) of HESA provides that the Minister must decide an application for approval as a Higher Education Provider and under paragraph 16‑50(1)(b) cause the applicant to be notified in writing whether or not the applicant is approved as a Higher Education Provider.
Subsection 16-55(1) of HESA stipulates that a notice of approval under paragraph 16‑50(1)(b) of HESA is a legislative instrument.
Purpose
This instrument:
- approves North Metropolitan TAFE (ABN: 23 489 495 403) as a Higher Education Provider under section 16‑25 of HESA from 28 April 2016;
- decides the application of North Metropolitan TAFE for the purposes of paragraph 16‑50(1)(a) of HESA; and
- gives North Metropolitan TAFE notice of that approval for the purposes of paragraph 16‑50(1)(b) of HESA.
Background
On 29 February 2016 the Commonwealth was notified by the Western Australian (WA) Minister for Training and Workforce Development that the functions of two approved higher education providers, the Central Institute of Technology and the West Coast Institute of Training, were being transferred to North Metropolitan TAFE with a date of effect of 11 April 2016.
The timing of the registration of North Metropolitan TAFE as a higher education provider under the Tertiary Education Quality Standards Agency Act 2011 precluded North Metropolitan TAFE from meeting the threshold requirements for approval as a Higher Education Provider until 28 April 2016.
Commencement
The Commonwealth can ensure that there is no disadvantage to students that enrolled with Central Institute of Technology and the West Coast Institute of Training and are entitled to FEE-HELP only by granting approval of North Metropolitan TAFE as a higher education provider with retrospective effect from 28 April 2016.
The Commonwealth’s purpose in approving this application in this manner will ensure continuity of student arrangements as Central Institute of Technology and West Coast Institute of Training cease and are effectively amalgamated into North Metropolitan TAFE. This will ensure that students are not disadvantaged or unable to continue their courses of study by the process of transferring functions required by the Western Australian Government decision to restructure its TAFE system.
The Instrument commences on 28 April 2016. The retrospective commencement of this instrument does not trigger subsection 12(2) of the Legislation Act 2003 because the Instrument is beneficial in nature and does not affect the rights or liabilities of a person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of registration.
Consultation
Consultation was not undertaken in this case as the notice confers a benefit on North Metropolitan TAFE and this body is the only body affected by the notice. This notice will not have a direct or substantial indirect effect on business, nor will it restrict competition.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Notice of Approval
This Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Instrument is made by the Minister under subsection 16‑25(1), paragraph 16‑50(1)(b) and subsection 16‑55(1) of HESA. The purpose of the Instrument is to approve North Metropolitan TAFE (ABN: 23 489 495 403) as a Higher Education provider for the purposes of FEE‑HELP assistance under HESA. For approval as a Higher Education Provider the Minister must be satisfied that the body meets the requirements of section 16‑25 and section 16-27 of HESA.
Human rights implications
Right to education
The Instrument engages the right to education, contained in Article 13 of the International Covenant on Economic, Social, and Cultural Rights. In particular, this Instrument has an effect on the provision of education by North Metropolitan TAFE by approving it as a Higher Education provider for the purposes of FEE‑HELP assistance under HESA, enabling it to offer FEE-HELP assistance to its eligible students.
The objective of the Instrument is to approve North Metropolitan TAFE as a Higher Education provider under HESA and thereby enable eligible students of North Metropolitan TAFE to continue to access FEE‑HELP assistance for courses of study.
To the extent that the right to education is engaged, this right is promoted by the Instrument as the Instrument approves North Metropolitan TAFE as a Higher Education provider, thereby extending FEE‑HELP assistance and the availability of education to its eligible students.
Conclusion
This Instrument is compatible with human rights because it advances the protection of human rights.