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 2011
Issued by the authority of the
Minister for Tertiary 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 his powers under section 16-25 and subsection 16-50(1) of HESA to an APS employee in the Department.
Purpose
This instrument approves TOP Education Group Pty Ltd as a higher education provider under section 16-25 of HESA and as a consequence decides the application of TOP Education Group Pty Ltd for the purposes of subsection 16-50(1)(a) of HESA. The instrument also gives TOP Education Group Pty Ltd notice of that approval for the purposes of subsection 16-50(1)(b) of HESA.
Commencement
In accordance with subsection 16-55(2) of HESA and paragraph 12(1)(d) of the Legislative Instruments Act 2003, the notice and the decision to approve TOP Education Group Pty Ltd as a higher education provider takes effect on the first business day after it is registered on the Federal Register of Legislative Instruments.
Consultation
Consultation was not undertaken and was not considered necessary in this case because the notice confers a benefit on TOP Education Group Pty 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 provision of financial assistance to students enrolled in higher education courses and to regulate the operation of higher education providers. The Higher Education Provider Approval No. 2 of 2011, issued by the authority of the Minister for Tertiary Education, is a legislative instrument that approves TOP Education Group Pty Ltd as a higher education provider under section 16-25 of HESA, and informs the applicant of the decision under subsection 16-50(1) of HESA. The approval process is overseen by the Minister, who has delegated certain powers to an APS employee in the Department. This approval takes effect on the first business day after it is registered on the Federal Register of Legislative Instruments. As this instrument confers a direct benefit on the specific entity and does not have a substantial effect on business or competition, consultation was deemed unnecessary.
Scope and Application
The Higher Education Support Act 2003 (HESA) governs the approval of bodies as Higher Education Providers by the Minister, and this legislation specifically concerns the approval of TOP Education Group Pty Ltd as such a provider. The approval and subsequent notice of approval are issued under sections 16-25 and 16-50(1) of HESA, with the Minister having delegated these powers to an APS employee within the Department as per section 238-5 of HESA. The approval and notice of approval apply solely to TOP Education Group Pty Ltd, which is thereby recognised as a higher education provider. The geographic reach of this approval is nationwide, affecting the operations and recognition of TOP Education Group Pty Ltd across Australia. There are no exclusions or exemptions specified in this legislation, and it does not extend or restrict application through subordinate instruments beyond the stipulations outlined within HESA.
Key Provisions
The key provision of this legislation (F2011L00241) pertains to the approval of bodies as Higher Education Providers under sections 16-25 and 16-50(1) of the Higher Education Support Act 2003 (HESA). Specifically, section 16-25 allows the Minister to approve bodies as higher education providers, while subsection 16-50(1) requires the Minister to make a decision on an application for approval and notify the applicant in writing of the decision. This legislation also includes the delegation of the Minister's powers to an employee of the Australian Public Service in the Department under section 238-5 of HESA. This instrument serves to approve TOP Education Group Pty Ltd as a higher education provider and to provide notice of that approval to the entity.
In terms of obligations and requirements, the legislation imposes a duty on the Minister to make a decision on an application for approval as a higher education provider and to notify the applicant of that decision in writing. This requirement is fulfilled by the issuing of the notice of approval, which confirms that TOP Education Group Pty Ltd has been approved as a higher education provider under HESA. The legislation also includes a requirement for the notice of approval to be registered on the Federal Register of Legislative Instruments, in accordance with subsection 16-55(2) of HESA.
Failure to comply with the requirements of the legislation may result in civil or criminal penalties, depending on the nature and severity of the breach. However, the Explanatory Statement does not provide specific information on the potential penalties for non-compliance. It is important to note that the legislation does not specify any offences or penalties for breach, and therefore any such consequences would need to be determined on a case-by-case basis.
The notice and the decision to approve TOP Education Group Pty Ltd as a higher education provider take effect on the first business day after the notice is registered on the Federal Register of Legislative Instruments, in accordance with subsection 16-55(2) of HESA. This means that the approval and notification process is finalised once the notice has been registered, and the entity is then able to operate as a higher education provider under HESA. It is also worth noting that consultation was not considered necessary in this case, as the notice confers a benefit on the entity and is not expected to have a substantial effect on business or competition.