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. 2 of 2010
Issued by the authority of the
Minister for Education
Subject: Higher Education Support Act 2003 (HESA)
Higher Education Provider approval and notice of approval under section 16-25 and subsection 16-50(1) of HESA
Authority
Section 16-25 of HESA provides for the approval of bodies as Higher Education Providers by the Minister, while subsection 16-50(1) of HESA provides that the Minister must decide an application for approval as a higher education provider (paragraph 16-50(1)(a)) and cause the applicant to be notified in writing whether or not the applicant is approved as a higher education provider (paragraph 16-50(1)(b)).
Subsection 16-55(1) of HESA stipulates that a notice of approval of a body as a higher education provider is a legislative instrument.
Under section 238-5 of HESA the Minister has delegated her powers under section 16-25 and subsection 16-50(1) of HESA to an APS employee in the Department.
Purpose
This instrument approves TCOL Ltd as a higher education provider under section 16-25 of HESA and as a consequence decides the application of TCOL Ltd for the purposes of subsection 16-50(1)(a) of HESA. The instrument also gives TCOL Ltd notice of that approval for the purposes of subsection 16-50(1)(b) of HESA.
Commencement
In accordance with paragraph 16-55(2)(b) of HESA, the notice takes effect on the first day (other than a Saturday, Sunday, or public holiday in Sydney, Australia) after the last day on which a resolution disallowing the notice could be passed; or the completion date, defined as when TCOL Ltd is in receipt of the trust property from College of Law Pty Ltd, whichever is the later.
Consultation
Consultation was not undertaken and was not considered necessary in this case because the notice confers a benefit on TCOL Ltd 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.
Overview
The Higher Education Support Act 2003 (HESA) was enacted to provide a legislative framework for the regulation of higher education providers in Australia. It addresses the need to ensure that higher education providers meet certain standards and are eligible to participate in the Commonwealth’s higher education support scheme. The Act empowers the Minister for Education to approve bodies as Higher Education Providers, a responsibility which includes deciding on applications for approval and notifying applicants of the outcomes. Enacted by the Australian Parliament, the policy objective of HESA is to maintain and enhance the quality of higher education by ensuring that institutions meet the necessary standards for approval and funding. The Explanatory Statement for Higher Education Provider Approval No. 2 of 2010 clarifies that TCOL Ltd has been approved as a higher education provider under section 16-25 of HESA and that the Minister has also notified TCOL Ltd of this approval, as required by subsection 16-50(1) of the Act. This legislative instrument ensures that TCOL Ltd is recognised as a legitimate higher education provider, thereby facilitating its participation in the Commonwealth’s higher education support scheme.
Scope and Application
The Explanatory Statement for the approval and notice of approval under sections 16-25 and 16-50(1) of the Higher Education Support Act 2003, specifically Higher Education Provider Approval No. 2 of 2010, clarifies the approval of TCOL Ltd as a higher education provider. This legislation applies to TCOL Ltd, allowing it to be recognised as a provider of higher education services. The approval process is governed by the Higher Education Support Act 2003, where the Minister for Education delegates the authority to approve higher education providers to an Australian Public Service employee within the Department. This approval grants TCOL Ltd the status as a higher education provider and notifies it of its approval in writing. The instrument is a legislative instrument under subsection 16-55(1) of the Higher Education Support Act 2003. The approval's effective date is contingent upon either the first day after the disallowance resolution period ends or the completion date when TCOL Ltd receives the trust property from College of Law Pty Ltd, whichever is later. The instrument's commencement is outlined in paragraph 16-55(2)(b) of the Higher Education Support Act 2003. The decision to approve TCOL Ltd was made without consultation as the approval solely benefits TCOL Ltd and does not impact other entities or competition.
Key Provisions
The main operative sections of the legislation are sections 16-25, 16-50(1), and 16-55 of the Higher Education Support Act 2003 (HESA). Section 16-25 allows the Minister to approve bodies as Higher Education Providers, while section 16-50(1) mandates that the Minister must decide applications for approval and notify applicants in writing of the outcome. Section 16-55 states that a notice of approval is a legislative instrument. This instrument specifically approves TCOL Ltd as a higher education provider under section 16-25 and informs TCOL Ltd of this approval as required by section 16-50(1)(b).
The Higher Education Support Act 2003 imposes several obligations on the Minister regarding the approval process for higher education providers. Under section 16-25, the Minister must approve eligible bodies as Higher Education Providers. Section 16-50(1) further requires the Minister to decide on applications for approval and to notify applicants of the decision in writing. Section 16-55(1) stipulates that this decision must be communicated through a legislative instrument, known as a notice of approval. Additionally, the Minister has delegated her powers under these sections to an Australian Public Service employee in the Department, as stated in section 238-5.
Breaching the requirements of the Higher Education Support Act 2003 can result in civil or criminal consequences. The Act does not explicitly state penalties for non-compliance with the approval process. However, failure to adhere to the provisions of the Act could potentially lead to legal action or other administrative penalties. The Minister’s decision to approve or disapprove an application must be made in accordance with the Act, and any failure to do so could be subject to judicial review. The notice of approval, as a legislative instrument, must also be correctly issued and communicated to the applicant to ensure legal compliance.