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. 6 of 2009
Issued by the authority of the
Minister for Education
Subject: Higher Education Support Act 2003 (HESA)
Higher Education Provider approval and notice of approval under section 16-25 and subsection 16-50(1) of HESA
Authority
Section 16-25 of HESA provides for the approval of bodies as Higher Education Providers by the Minister, while subsection 16-50(1) of HESA provides that the Minister must decide an application for approval as a higher education provider (paragraph 16-50(1)(a)) and cause the applicant to be notified in writing whether or not the applicant is approved as a higher education provider (paragraph 16-50(1)(b)).
Subsection 16-55(1) of HESA stipulates that a notice of approval of a body as a higher education provider is a legislative instrument.
Under section 238-5 of HESA the Minister has delegated her powers under section 16-25 and subsection 16-50(1) of HESA to an APS employee in the Department.
Purpose
This instrument approves Holmes Institute Pty Ltd as trustee for Holmes Institute Trust as a higher education provider under section 16-25 of HESA and as a consequence decides the application of Holmes Institute Pty Ltd as trustee for Holmes Institute Trust for the purposes of subsection 16-50(1)(a) of HESA. The instrument also gives Holmes Institute Pty Ltd as trustee for Holmes Institute Trust notice of that approval for the purposes of subsection 16-50(1)(b) of HESA.
Background
In December 2005 the then Department of Education, Science and Training was notified in writing that the financial and educational functions of the approved higher education provider Holmes Commercial Colleges (Melbourne) Pty Ltd were being transferred to a new entity Holmes Institute Pty Ltd as trustee for Holmes Institute Trust. Administrative actions were taken by the Department but these actions did not include Holmes Institute Pty Ltd as trustee for Holmes Institute Trust being required to apply for HEP approval in its own right. This retrospective approval will ensure that there is no disadvantage to students currently or previously enrolled with Holmes Institute Pty Ltd as trustee for Holmes Institute Trust.
Commencement
This instrument commenced on 11 December 2005.
Retrospective commencement of the instrument was required to ensure there was no disadvantage to students currently or previously enrolled with the newly approved higher education provider, Holmes Institute Pty Ltd as trustee for Holmes Institute Trust, as a result of the transfer of the financial and educational functions of the former approved higher education provider, Holmes Commercial Colleges (Melbourne) Pty Ltd.
The retrospective commencement of the instrument does not infringe subsection 12(2) of the Legislative Instruments Act 2003 because the instrument is beneficial in nature and does not affect the rights of a person (other than the Commonwealth) as at the date of registration so as to disadvantage that person. Nor does the instrument impose any liabilities on any 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 and was not considered necessary in this case because the notice confers a benefit on Holmes Institute Pty Ltd as trustee for Holmes Institute Trust and this body is the only body affected by the notice.