Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022

Administered by Department of Education

Legislation au F2022L01190 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by the authority of a delegate of the Minister for Education

Higher Education Support Act 2003

Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022

AUTHORITY

The Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022 (the Instrument) is made under subsection 16-60(2) of the Higher Education Support Act 2003 (‘the Act’). Subsection 16-60(2) of the Act provides that the Minister may vary a condition imposed on the approval of a higher education provider under subsection 16-60(1).

PURPOSE AND OPERATION

The purpose of the Instrument is to amend the Higher Education Provider Approval (No 1 of 2021) and the Higher Education Provider Approval (No 2 of 2021) to include an omitted word in one of the conditions of approval specified in each of the approval instruments. The relevant conditions require an approved higher education provider to notify the department responsible for administering the Act of any regulatory activity undertaken or being undertaken by the Tertiary Education Quality and Standards Authority or any other regulatory body which may impact upon its operation for the period of its approval.     

REGULATORY IMPACT

The Office of Best Practice Regulation (OBPR) has advised that the measures included in the Instrument are unlikely to have a more than minor regulatory impact, and therefore the preparation of a Regulation Impact Statement is not required (OBPR reference no: 2202044).

COMMENCEMENT

The Instrument commences on the day after it is registered on the Federal Register of Legislation.

CONSULTATION

The department has not undertaken any consultation in relation to this instrument as the sole purpose of the Instrument is to address a minor omission in the drafting of a condition of approval included on the instruments of approval. 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022

The Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022 (‘the 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 under subsection 16-60(2) of the Higher Education Support Act 2003 (‘the Act’). Subsection 16-60(2) of the Act provides that the Minister may vary a condition imposed on the approval of a higher education provider under subsection 16-60(1).

The purpose of the Instrument is to amend the Higher Education Provider Approval (No 1 of 2021) and the Higher Education Provider Approval (No 2 of 2021) to include an omitted word in one of the conditions of approval specified in the approval instruments. The relevant conditions require an approved higher education provider to notify the department responsible for administering the Act of any regulatory activity undertaken or being undertaken by the Tertiary Education Quality and Standards Authority or any other regulatory body which may impact upon its operation for the period of its approval.     

Human rights implications

The Instrument engages the right to education.

Right to education

The Instrument promotes the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). Article 13(2)(c) of the ICESCR provides that ‘higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.

Approved higher education providers are eligible to receive certain grants and its students may be eligible to receive certain financial assistance from the Commonwealth. The conditions placed on the approval of higher education provider include reporting conditions that provide the transparency required for the Australian Government to determine whether it is appropriate for the provider to continue to be approved under the Act. This Instrument ensures that one of the reporting conditions, placed on two approved higher education providers, is drafted so-as-to effectively obligate the providers to report in accordance with the condition. Ensuring that only appropriate entities continue to receive grant funding supports the right to education by promoting effective use of education funding which advances the rights in Article 13(2)(c) of the ICESCR.     

Conclusion

The Instrument is compatible with human rights because it promotes the right to education under the ICESCR.

 

 

 

Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022

 

EXPLANATION OF PROVISIONS

 

Section 1: Name

  1. This section specifies the name of the instrument as Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022 (‘the Instrument’).

Section 2: Commencement

2.      This section specifies that the Instrument commences on the day after registration on the Federal Register of Legislation.

Section 3: Authority

3.      This section specifies that this instrument is made under subsection 16-60(2) of the Higher Education Support Act 2003 (‘the Act’)).

Section 4: Schedules

4.      This section provides that the instruments specified in Schedule 1 are amended as set out in the applicable items in that Schedule. 

SCHEDULE 1 – Amendments

Higher Education Provider Approval (No 1 of 2021)

Item 1

5.      This item repeals and substitutes section 8 to include the omitted word ‘must’ following the name of the approved provider to ensure that the condition operate as originally intended. The condition requires the approved higher education provider to notify the department, responsible for administering the Act, of any regulatory activity undertaken or being undertaken by the Tertiary Education Quality and Standards Authority or any other regulatory body which may impact upon its operation for the period of its approval.     

Higher Education Provider Approval (No 2 of 2021)

Item 2

6.      This item repeals and substitutes section 8 to include the omitted word ‘must’ following the name of the approved provider to ensure that the condition operate as originally intended. The condition requires the approved higher education provider to notify the department, responsible for administering the Act, of any regulatory activity undertaken or being undertaken by the Tertiary Education Quality and Standards Authority or any other regulatory body which may impact upon its operation for the period of its approval.     

 

Overview

The Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022 was enacted to address a drafting oversight in the Higher Education Provider Approval (No 1 of 2021) and the Higher Education Provider Approval (No 2 of 2021) instruments. This Instrument was made under the authority of the Minister for Education pursuant to subsection 16-60(2) of the Higher Education Support Act 2003. The primary purpose of the Instrument is to rectify an omission in the drafting of a specific condition of approval, which pertains to the requirement for approved higher education providers to report any regulatory activities by the Tertiary Education Quality and Standards Authority or other regulatory bodies that may affect their operations. This correction ensures that the conditions of approval are accurately enforced, thereby maintaining the integrity and effectiveness of the regulatory framework governing higher education providers in Australia.

Scope and Application

The Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022 is an instrument made under the Higher Education Support Act 2003, specifically under subsection 16-60(2), which allows the Minister to vary conditions imposed on the approval of higher education providers. This Instrument amends the conditions of approval for two specified higher education providers, namely Higher Education Provider Approval (No 1 of 2021) and Higher Education Provider Approval (No 2 of 2021). The amendments are necessary to rectify an omission in the original drafting of one of the conditions of approval, which requires the providers to notify the department responsible for administering the Act of any regulatory activity that may impact their operations during the period of their approval. The Instrument ensures that the reporting condition operates as originally intended by including the omitted word "must," thereby enforcing a mandatory obligation on the approved higher education providers to comply with the notification requirement. The Instrument does not extend its application beyond these two specific approvals and does not introduce any new substantive changes beyond the correction of the drafting error. It commences on the day after its registration on the Federal Register of Legislation.

Key Provisions

The Higher Education Provider Approvals (Nos 1 and 2 of 2021) Amendment Instrument 2022 amends the conditions of approval for two specific higher education providers, namely Higher Education Provider Approval (No 1 of 2021) and Higher Education Provider Approval (No 2 of 2021). The primary operative sections of this instrument are Section 4, which specifies that the instruments listed in Schedule 1 are amended as detailed in the applicable items within that Schedule (Section 4). The amendments pertain to Section 8 of each approval instrument, which now requires an approved higher education provider to notify the department responsible for administering the Higher Education Support Act 2003 of any regulatory activity by the Tertiary Education Quality and Standards Authority or any other regulatory body that may impact the provider's operation for the duration of its approval (Schedule 1, Items 1 and 2). These amendments impose obligations on the approved higher education providers to ensure they comply with the conditions of their approval by reporting any regulatory activities that may affect their operations. By including the word 'must' in the conditions, the Act clearly mandates the providers to notify the relevant department of such activities, ensuring transparency and accountability in the operation of these higher education institutions. Breaching these reporting obligations could lead to penalties or consequences under the Higher Education Support Act 2003. While the specific penalties are not outlined in the Instrument, breaches of conditions of approval can generally result in sanctions such as fines, suspension, or even revocation of the approval, thereby impacting the provider’s ability to operate and receive government funding. The precise nature and severity of the penalties would be determined based on the specific circumstances and the extent of the breach.

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Education Law
Instrument
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.