Higher Education Provider Approval No. 13 of 2012

EXPLANATORY STATEMENT

Approval and notice of approval under subsections 16-25(1) and 16-50(1) of

the Higher Education Support Act 2003

Higher Education Provider Approval No. 13 of 2012

Issued by the authority of the Minister for Tertiary Education, Skills, Science and Research

Authority

Subsection 16-25(1) of the Higher Education Support Act 2003 (the Act) provides for the approval of bodies as higher education providers by the Minister. Paragraph 16-50(1)(a) of the Act provides that the Minister must decide an application for approval as a higher education provider and under subsection 16-50(1)(b) cause the applicant to be notified in writing whether or not the applicant is approved as a higher education provider.

Under paragraph 238‑5(1)(b) of the Act the Minister has delegated his powers under sections 16-25 and     16-50 of the Act to the position of General Manager of the Student Support Branch in the Tertiary Quality and Student Support Division of the Department of Industry, Innovation, Science, Research and Tertiary Education.

Subsection 16-55(1) of the Act stipulates that a notice of approval of a body as a higher education provider is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Purpose

The instrument:

1. approves TAFE SA (ABN: 67 828 419 300) as a higher education provider under subsection    16-25(1) of the Act;
2. decides the application of TAFE SA for the purposes of paragraph 16-50(1)(a) of the Act; and
3. gives TAFE SA notice of that approval for the purposes of paragraph 16-50(1)(b) of the Act.

Commencement

In accordance with subsection 16-55(2) of the Act, the decision to approve TAFE SA as a higher education provider and notice of approval takes effect on the day after the notice is registered on the Federal Register of Legislative Instruments.

Background

On 4 October 2012 a delegate of the Minister for Tertiary Education, Skills, Science and Research was notified in writing that the functions of the approved higher education provider, the Minister for Employment, Higher Education and Skills (SA), were being transferred to TAFE SA, an emanation of the Crown in the state of South Australia and transition to TAFE SA would not alter ownership. For the purposes of subsection 16-40(2) of the Act the notification received on 4 October 2012 and the original application lodged by the Minister for Employment, Higher Education and Skills (SA) were approved by the delegate as being an application by TAFE SA for higher education provider approval.

Consultation

Consultation was not considered necessary in this case because the notice confers a benefit on TAFE SA 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

The 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 the  Act. The purpose of the instrument is to approve TAFE SA as a higher education provider for the purposes of FEE-HELP under the Act. For approval as a higher education provider the Minister must be satisfied that the body meets the requirements of subsection 16-25(1) of the Act.

Human rights implications

The instrument engages the right to education, contained in Article 13 of the International Covenant on Economic, Social, and Cultural Rights. In particular, the instrument has an effect on the provision of higher education by TAFE SA by approving it as a higher education provider for the purposes of enabling it to offer FEE-HELP assistance to its eligible students.

The objective of the instrument is to approve TAFE SA as a higher education provider under the Act and thereby enable eligible students of TAFE SA to access FEE-HELP assistance for higher education courses of study. To the extent that the right to education is engaged, this right is promoted by the instrument as it approves TAFE SA as a higher education provider, and extends FEE-HELP assistance and the availability of education to its eligible students.

Conclusion

The instrument is compatible with human rights because it advances the protection of human rights.