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 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 South Metropolitan TAFE (ABN: 15 965 263 323) as a Higher Education Provider under section 16‑25 of HESA from 28 April 2016;
- decides the application of South Metropolitan TAFE for the purposes of paragraph 16‑50(1)(a) of HESA; and
- gives South 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 an approved higher education provider,
Polytechnic West, were being transferred to South Metropolitan TAFE with a date of effect of 11 April 2016.
The timing of the registration of South Metropolitan TAFE as a higher education provider under the Tertiary Education Quality Standards Agency Act 2011 precluded South 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 those students enrolled with Polytechnic West and are entitled to FEE-HELP only by granting approval of South 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 Polytechnic West ceases and is effectively amalgamated into South 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 South 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 South Metropolitan TAFE (ABN: 15 965 263 323) 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 South 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 South Metropolitan TAFE as a Higher Education provider under HESA and thereby enable eligible students of South 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 South 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.