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. 3 of 2013
Issued by the authority of the Minister for Tertiary Education, Skills, Science and Research
Authority
Section 16‑25 of 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 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.
Under section 238-5 of the Act the Minister has delegated his powers under section 16‑25 and subsection 16‑50(1) of the Act to an APS employee responsible for administering the Act.
Subsection 16-55(1) of the Act stipulates that a notice of approval under paragraph 16‑50(1)(b) of the Act is a legislative instrument.
Purpose
This instrument:
- approves Nan Tien Institute Limited (ACN: 139 338 819 ABN: 80 139 338 819) as a Higher Education Provider under section 16‑25 of the Act;
- decides the application of Nan Tien Institute Limited for the purposes of paragraph 16‑50(1)(a) of the Act; and
- gives Nan Tien Institute Limited 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 and paragraph 12(1)(d) of the Legislative Instruments Act 2003, the notice and the decision to approve Nan Tien Institute Limited as a Higher Education Provider take effect on the day after the notice 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 Nan Tien Institute Limited 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 section 16‑25(1), paragraph 16‑50(1)(b) and subsection 16‑55(1) of the Act. The purpose of the Instrument is to approve Nan Tien Institute Limited as a Higher Education provider for the purposes of FEE‑HELP assistance under the Act. For approval as a Higher Education Provider the Minister must be satisfied that the body meets the requirements of section 16‑25 of the Act.
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 Nan Tien Institute Limited by approving it as a Higher Education provider for the purposes of FEE‑HELP assistance under the Act, enabling it to offer FEE-HELP assistance to its eligible students.
The objective of the Instrument is to approve Nan Tien Institute Limited as a Higher Education provider under the Act and thereby enable eligible students of Nan Tien Institute Limited 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 Nan Tien Institute Limited 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 was enacted to address the need for a robust framework governing the provision of financial support for students in higher education, ensuring access to quality education and mitigating the financial burden on students. This Act was passed by the Australian Parliament with the aim of providing a sustainable system of student financial support in the higher education sector. One of the key mechanisms under this Act is the approval of Higher Education Providers, which ensures that institutions meet certain standards before they can offer courses eligible for government-subsidised student loans, such as FEE-HELP. The Explanatory Statement for Approval and Notice of Approval under section 16-25 and subsection 16-50(1) of the Higher Education Support Act 2003 clarifies the process and criteria for such approvals, and specifies the delegation of these powers to an authorised officer. The approval of Nan Tien Institute Limited as a Higher Education Provider under this framework aims to extend the availability of FEE-HELP assistance to its eligible students, thereby facilitating access to higher education.
Scope and Application
The Higher Education Provider Approval No. 3 of 2013, under section 16-25 and subsection 16-50(1) of the Higher Education Support Act 2003, applies to Nan Tien Institute Limited (ACN: 139 338 819 ABN: 80 139 338 819) as a specific entity within the higher education sector. This legislative instrument grants the Minister's approval for Nan Tien Institute Limited to function as a Higher Education Provider, thereby enabling the entity to offer FEE-HELP assistance to its eligible students. The approval process mandates that the Minister must be satisfied that the applicant meets the necessary criteria stipulated under section 16-25 of the Act. The instrument's jurisdiction is Commonwealth-wide, and it includes a statement of compatibility with human rights, affirming its alignment with the right to education as per Article 13 of the International Covenant on Economic, Social, and Cultural Rights. The approval notice, which is a legislative instrument, takes effect the day after its registration on the Federal Register of Legislative Instruments.
Key Provisions
The primary sections of the Higher Education Support Act 2003 that this legislation addresses are sections 16-25 and 16-50(1). Section 16-25 provides the framework for approving bodies as Higher Education Providers, while section 16-50(1) mandates that the Minister for Tertiary Education, Skills, Science and Research must decide on applications for approval and notify the applicant in writing of the decision. Specifically, subsection 16-50(1)(b) requires the Minister to give written notice of the approval or refusal to the applicant. Additionally, the Minister has delegated their powers under these sections to an APS employee responsible for administering the Act, as per section 238-5.
This legislation imposes certain obligations on the Minister for Tertiary Education, Skills, Science and Research and the APS employee to whom the powers have been delegated. The Minister must decide on the application for approval of Nan Tien Institute Limited as a Higher Education Provider, ensuring that the Institute meets the requirements set out in section 16-25 of the Act. Furthermore, the Minister, or the delegated APS employee, must provide written notice to Nan Tien Institute Limited regarding the approval decision. The notice of approval is itself a legislative instrument, as stipulated by subsection 16-55(1) of the Act.
The legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences for breach. However, it is reasonable to infer that failure to comply with the Act's requirements or the Minister's decision could potentially lead to legal consequences. Given the context of the Higher Education Support Act, any non-compliance by Nan Tien Institute Limited or the Minister could result in the revocation of the approval, affecting the Institute's ability to offer FEE-HELP assistance to its students. Additionally, any failure by the Minister or the APS employee to perform their duties correctly could lead to administrative or legal repercussions, although the specific penalties are not detailed within this particular legislative instrument.