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.
Overview
The Higher Education Support Act 2003 (HESA) was enacted to provide a framework for the regulation of higher education providers in Australia, particularly in relation to financial support and student assistance schemes like FEE-HELP. The Higher Education Provider Approval No. 2 of 2016, issued under the authority of the Minister for Education and Training, addresses the need to ensure continuity of educational services and student support when institutional changes occur, such as the transfer of functions from one higher education provider to another. In this case, the approval of South Metropolitan TAFE as a Higher Education Provider was necessary to prevent any disruption to students who were enrolled with the previously approved provider, Polytechnic West. By approving South Metropolitan TAFE with retrospective effect from 28 April 2016, the instrument ensures that students are not disadvantaged and can continue their courses without interruption. This legislative instrument not only maintains the flow of FEE-HELP assistance but also promotes the right to education by enabling eligible students to access higher education services seamlessly.
Scope and Application
The Higher Education Provider Approval No. 2 of 2016 is a legislative instrument made under the Higher Education Support Act 2003 (HESA) that approves South Metropolitan TAFE as a Higher Education Provider with retrospective effect from 28 April 2016. This approval is essential to ensure continuity of student arrangements as Polytechnic West ceased and its functions were transferred to South Metropolitan TAFE. By approving South Metropolitan TAFE, the Commonwealth ensures that students previously enrolled with Polytechnic West are not disadvantaged and can continue their courses of study. The approval process was necessitated by the Western Australian Government's decision to restructure its TAFE system, which required the transfer of Polytechnic West’s functions to South Metropolitan TAFE. The retrospective commencement of this instrument does not affect the rights or liabilities of any person in respect of anything done or omitted to be done before the date of registration, as it is beneficial in nature.
The approval applies specifically to South Metropolitan TAFE and its students, enabling the institution to offer FEE-HELP assistance, thus promoting the right to education. The Minister for Education and Training approved South Metropolitan TAFE under sections 16-25 and 16-50(1) of HESA, confirming that the entity meets the necessary requirements for Higher Education Provider status. This approval facilitates the continuity of educational services and ensures that students affected by the restructuring can maintain their access to financial assistance for higher education.
Key Provisions
The Higher Education Support Act 2003 (HESA) (sections 16-25 and 16-50) provides the legal basis for approving entities as Higher Education Providers. Specifically, section 16-25 allows the Minister to approve bodies as Higher Education Providers, while section 16-50 mandates that the Minister must decide on an application for approval and notify the applicant in writing of the outcome. This legislative instrument, Higher Education Provider Approval No. 2 of 2016, implements these provisions by approving South Metropolitan TAFE as a Higher Education Provider, effective from 28 April 2016. This approval allows South Metropolitan TAFE to offer FEE-HELP assistance to its eligible students, ensuring continuity for students previously enrolled with Polytechnic West.
The Act imposes several obligations on South Metropolitan TAFE as a newly approved Higher Education Provider. It must comply with all relevant educational standards and requirements set out in HESA and the Tertiary Education Quality Standards Agency Act 2011. This includes maintaining appropriate educational standards, providing necessary student services, and ensuring that it meets any other criteria specified by the Minister for Education and Training. Additionally, South Metropolitan TAFE must notify its students of the approval and ensure that any ongoing courses or educational services are delivered in compliance with the approved status.
Under the Higher Education Support Act 2003, breaches of the provisions related to Higher Education Provider approval can result in significant penalties. While the specific offences and penalties are detailed in other sections of HESA, non-compliance with the educational standards or failure to meet the requirements for approval could lead to sanctions. These may include financial penalties, revocation of approval, or legal action against the institution. The exact penalties would depend on the nature and severity of the breach, but they are intended to enforce the integrity and quality of higher education services provided in Australia.
In summary, Higher Education Provider Approval No. 2 of 2016 approves South Metropolitan TAFE as a Higher Education Provider under the Higher Education Support Act 2003. This approval facilitates the continuation of FEE-HELP assistance for eligible students, ensuring they are not disadvantaged by the transfer of functions from Polytechnic West. South Metropolitan TAFE must adhere to the educational standards and requirements set out in the Act, and any failure to comply can result in penalties, including potential revocation of its approval as a Higher Education Provider.