EXPLANATORY STATEMENT
Approval and Notice of Approval under Sections 16-25 and 16-50 of the Higher Education Support Act 2003
Higher Education Provider Approval No. 5 of 2016
Issued by the authority of the Minister for Education and Training
This Explanatory Statement replaces the Explanatory Statement registered on the Federal Register of Legislation on 21 December 2016 for the Higher Education Provider Approval No. 5 of 2016 [F2016L02008]
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. Section 16‑50 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 Proteus Technologies Pty Ltd (ACN: 112 989 581, ABN: 95 112 989 581) as a higher education provider under section 16‑25 of the Act;
- imposes conditions on the approval of Proteus Technologies Pty Ltd as a higher education provider under section 16-60 of the Act;
- decides the application of Proteus Technologies Pty Ltd for the purposes of paragraph 16‑50(1)(a) of the Act; and
- gives Proteus Technologies Pty Ltd 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 Proteus Technologies Pty Ltd’s approval as a higher education provider.
Clause 5 of the conditions of approval states that Proteus Technologies Pty Ltd must provide the department responsible for administering the Act (the responsible department) with all required financial information as specified in an external document entitled Financial Viability Instructions for Applicants and Providers of FEE-HELP (the FVI). The FVI are incorporated by reference without reproduction of the full text of that document in the instrument. According to the terms of its approval, Proteus Technologies Pty Ltd must provide the responsible department with all required financial information as specified in the FVI, on an annual basis by no later than 31 December each year for the period of its approval. The FVI are freely and publically available on the Department of Education and Training’s website accessible at: <https://docs.education.gov.au/documents/financial-viability-instructions>
Subdivision 19-B (the financial viability requirements), section 19.5 of the Act requires that an organisation (applicant or approved provider permitted to offer loans under the FEE-HELP scheme) is financially viable and likely to remain financially viable. As part of this process, approved providers must provide the Minister with a financial statement in a form approved by the Minister. Applicants applying to be approved higher education providers that fail to satisfy the financial viability requirements will face non-approval of their application. Approved higher education providers failing to satisfy ongoing financial viability requirements may face additional monitoring and reporting activities, suspension or revocation of approved provider status. The purpose of the FVI is to inform organisations of the financial information that is required to be submitted, the form in which it must be prepared, and how financial viability will be assessed for the purposes of the Act, thereby assisting them to prepare those parts of their application or annual financial submissions that relate to financial viability.
The manner of incorporation of the FVI, as an external document incorporated into the approval instrument as in force from time to time, is authorised virtue of the operation of paragraph 19.10(2)(a) (financial statements must be in a form as approved by the Minister) of the Act. The FVI specify the, financial information that must be submitted by prospective and approved higher education providers in order to comply with statutory financial viability obligations under Subdivision 19-B of the Act. The FVI are intended for use by organisations that are applying to become approved providers and organisations that are approved providers to offer loans under the FEE-HELP scheme. The FVI are designed to assist organisations to prepare the parts of their application or annual financial submission that relate to financial viability obligations under the Act. It may be discerned from the power under the Act to determine the financial viability of an approved higher education provider and the allied requirement that existing and prospective providers submit a financial statement in an approved form, that the requirements under the FVI be incorporated as in force or existing from time to time in that this document gives effect to the intended operation of financial viability provisions as authorised under the Act.
In accordance with subsections 22-15(1) and 22-30(1) of the Act, the Minister may suspend or revoke Proteus Technologies Pty Ltd’s approval as a higher education provider if Proteus Technologies Pty Ltd breaches any of the conditions imposed on Proteus Technologies Pty Ltd’s approval as a higher education provider.
Commencement
In accordance with subsection 16‑55(2) of the Act and paragraph 12(1)(a) of the Legislative Instruments Act 2003, the notice and the decision to approve Proteus Technologies Pty Ltd as a higher education provider take effect on the day after the notice is registered on the Federal Register of Legislation.
Consultation
Consultation was not undertaken and was not considered necessary in this case because the notice confers a benefit on Proteus Technologies 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.
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 or the Minister’s delegate under subsection 16‑55 of the Higher Education Support Act 2003 (the Act). The purpose of the Instrument is to approve Proteus Technologies Pty Ltd (ACN: 112 989 581, ABN: 95 112 989 581) as a higher education provider. 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 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 Proteus Technologies Pty Ltd by approving it as a higher education provider, enabling it to offer FEE-HELP assistance to its eligible students.
The objective of the Instrument is to approve Proteus Technologies Pty Ltd as a higher education provider under the Act and thereby enable eligible students of Proteus Technologies Pty Ltd 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 Proteus Technologies Pty Ltd 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.