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 2016
Issued by the authority of the Minister for Education and Training
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 The Cairnmillar Institute (ACN: 005 085 423 ABN: 27 005 085 423) as a Higher Education Provider under section 16‑25 of the Act;
- imposes conditions on the approval of The Cairnmillar Institute as a Higher Education Provider;
- decides the application of The Cairnmillar Institute for the purposes of paragraph 16‑50(1)(a) of the Act; and
- gives The Cairnmillar Institute notice of that approval for the purposes of paragraph 16‑50(1)(b) of the Act.
Conditions
The Minister has the power under section 16-60 of the Act, to impose or vary conditions on a body’s approval as a Higher Education Provider. Conditions imposed under that provision are set out in the Notice of Approval for The Cairnmillar Institute‘s approval as a Higher Education Provider.
In accordance with subsection 22-15(1) and 22-30(1) of the Act, the Minister may suspend or revoke The Cairnmillar Institute‘s approval as a Higher Education Provider if The Cairnmillar Institute breaches any of the conditions imposed on The Cairnmillar Institute’s approval as a Higher Education Provider.
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 The Cairnmillar Institute 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 The Cairnmillar Institute 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 the Higher Education Support Act 2003(the Act). The purpose of the Instrument is to approve The Cairnmillar Institute (ABN: 27 005 085 423) 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 and section 16-27 of the Act.
Human rights implication
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 The Cairnmillar Institute 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 The Cairnmillar Institute as a Higher Education provider under the Act and thereby enable eligible students of The Cairnmillar Institute 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 The Cairnmillar Institute 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 issues related to the support and regulation of higher education in Australia, particularly in relation to financial assistance schemes such as FEE-HELP. The Act was introduced by the Australian Parliament to ensure that students have access to financial support for their higher education studies and that institutions providing higher education meet certain standards. This legislative instrument, Higher Education Provider Approval No. 3 of 2016, issued by the Minister for Education and Training, serves to approve The Cairnmillar Institute as a Higher Education Provider under section 16-25 of the Act. The policy objective of this approval is to ensure that eligible students of The Cairnmillar Institute can continue to access FEE-HELP assistance, thereby promoting the right to education as outlined in the International Covenant on Economic, Social, and Cultural Rights. The approval also includes specific conditions to maintain the quality and standards of education provided by The Cairnmillar Institute.
Scope and Application
The Cairnmillar Institute (ABN: 27 005 085 423) is approved as a Higher Education Provider under section 16-25 of the Higher Education Support Act 2003, allowing it to participate in the FEE-HELP assistance scheme. The approval process involves the Minister for Education and Training making a decision based on the Institute's compliance with the Act's requirements, with conditions potentially imposed to govern its operations as a Higher Education Provider. The Minister has the authority to suspend or revoke this approval if the Institute breaches the imposed conditions, as outlined in the Act. The approval and associated conditions take effect on the day following the registration of the legislative instrument on the Federal Register of Legislative Instruments. This legislative instrument is compatible with human rights, particularly the right to education, by enabling eligible students of The Cairnmillar Institute to access FEE-HELP assistance, thereby facilitating their educational opportunities.
Key Provisions
Section 16-25 of the Higher Education Support Act 2003 (the Act) mandates the Minister's approval of bodies as Higher Education Providers. Under section 16-50(1)(a) of the Act, the Minister must adjudicate on applications for such approval, and under section 16-50(1)(b) must notify the applicant in writing of the approval decision. This legislation specifically approves The Cairnmillar Institute as a Higher Education Provider, and imposes conditions on this approval. The Minister has delegated powers to an Australian Public Service employee to administer these provisions. The approval takes effect the day after the notice is registered on the Federal Register of Legislative Instruments.
The Act imposes various obligations on the approved Higher Education Provider, The Cairnmillar Institute. It requires the Institute to comply with the conditions imposed on its approval, which are detailed in the Notice of Approval. Failure to meet these conditions could result in suspension or revocation of the approval, as stipulated in subsections 22-15(1) and 22-30(1) of the Act. The Institute must also ensure it meets the requirements of sections 16-25 and 16-27 of the Act to maintain its status as a Higher Education Provider.
Breach of the conditions imposed on The Cairnmillar Institute's approval, or failure to comply with the requirements of the Act, can result in serious consequences. The Minister may suspend or revoke the Institute's approval under subsections 22-15(1) and 22-30(1) of the Act. The precise penalties are not detailed in the legislation, but could potentially include fines or other civil or criminal penalties, depending on the nature and severity of the breach.
The legislation is designed to ensure that The Cairnmillar Institute, as a Higher Education Provider, meets certain standards and conditions to maintain its approval. It also ensures that eligible students can access FEE-HELP assistance, thereby promoting the right to education. Any failure to comply with these obligations or conditions could potentially impact the Institute's ability to operate as a Higher Education Provider and its students' access to FEE-HELP assistance.
This legislation also includes a Statement of Compatibility with Human Rights, prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. It states that the Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Act. In particular, it promotes the right to education by approving The Cairnmillar Institute as a Higher Education Provider and enabling eligible students to access FEE-HELP assistance.