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:
- approves TAFE SA (ABN: 67 828 419 300) as a higher education provider under subsection 16-25(1) of the Act;
- decides the application of TAFE SA for the purposes of paragraph 16-50(1)(a) of the Act; and
- 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.
Overview
The Higher Education Support Act 2003 was enacted to provide a framework for the regulation of higher education providers in Australia and to support the delivery of higher education services. This Act was introduced to address the need for a comprehensive legislative structure that ensures the quality and accessibility of higher education, while also facilitating financial support mechanisms such as the FEE-HELP scheme. The Act was enacted by the Australian Parliament and aims to safeguard the interests of students and the integrity of the higher education sector. The Higher Education Provider Approval No. 13 of 2012 is a legislative instrument issued under the authority of the Minister for Tertiary Education, Skills, Science and Research, and it serves to approve TAFE SA as a higher education provider. This approval enables TAFE SA to offer FEE-HELP assistance to its eligible students, thereby enhancing their access to higher education. The instrument ensures compliance with human rights by promoting the right to education, as recognised in international covenants, and is consistent with the policy objectives of the Higher Education Support Act.
Scope and Application
The Higher Education Support Act 2003 governs the approval of entities as higher education providers, specifically under subsections 16-25(1) and 16-50(1) of the Act. This Act applies to any entity seeking to be recognised as a higher education provider, allowing them to offer courses that qualify for government-backed financial assistance schemes such as FEE-HELP. The Act operates on a national level, as it is a Commonwealth Act, and it applies to entities across Australia that wish to provide higher education services. Notably, the Act does not specify exclusions or thresholds for the entities it governs; however, the approval process requires that the Minister be satisfied that the applicant meets the relevant criteria. The Minister has delegated the power to approve higher education providers to the 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. This delegation allows for the extension or restriction of the application of the Act through subordinate instruments. The approval and subsequent notification are legislative instruments under the Legislative Instruments Act 2003, and they take effect upon registration on the Federal Register of Legislative Instruments.
Key Provisions
The Higher Education Support Act 2003 (the Act) has several key sections that relate to the approval and notice requirements for higher education providers. Section 16-25(1) provides for the approval of bodies as higher education providers by the Minister, while section 16-50(1) mandates that the Minister must decide an application for approval and notify the applicant of the decision. These provisions are integral to establishing the eligibility and status of entities that wish to offer higher education services. The approval process is further detailed in section 16-55(1), which stipulates that a notice of approval is a legislative instrument. The instrument, in this case, approves TAFE SA as a higher education provider, decides its application, and provides the necessary written notification of approval.
The Act imposes several obligations on the Minister and the entities applying for approval as higher education providers. The Minister must ensure that the applicant meets all the criteria set forth in section 16-25(1) of the Act before granting approval. This includes verifying the applicant's capacity to deliver higher education services and ensuring that they comply with any other relevant legislative requirements. TAFE SA, as the applicant, must submit a comprehensive application that demonstrates its suitability and readiness to offer higher education courses. Additionally, once approved, TAFE SA must adhere to any conditions or requirements specified in the notice of approval.
Failure to comply with the provisions of the Act may result in legal consequences. While the Explanatory Statement does not explicitly detail the penalties for non-compliance, the Act generally provides for both civil and criminal penalties for breaches. Civil penalties could include fines, while criminal penalties might involve imprisonment or fines depending on the severity of the breach. The specific penalties are usually outlined in the Act or in related legislation, but the potential consequences underscore the importance of adhering to the statutory requirements for higher education providers.
In summary, the legislation establishes a clear framework for the approval and notification of higher education providers, ensuring that entities like TAFE SA meet the necessary standards before they can offer higher education services. The obligations placed on both the Minister and the applicant are designed to maintain the quality and integrity of higher education offerings in Australia. Non-compliance with these provisions can lead to significant legal repercussions, reinforcing the importance of adherence to the Act's requirements.