EXPLANATORY STATEMENT
Determination of Revocation of Approval as a VET provider under subclause 33(1) of Schedule 1A
to the Higher Education Support Act 2003
Phoenix Institute of Australia Pty Ltd ABN 37 084 806 575
Issued by the authority of the Minister for Vocational Education and Skills
Authority
Subclauses 33(1) and 34(3)-(5) of Schedule 1A to the Higher Education Support Act 2003 (the Act) provide that the Minister may, by legislative instrument, determine that a body's approval as a VET provider is revoked.
Under paragraph 238‑5(1)(b) of the Act the Minister has delegated his powers under clause 34 of Schedule 1A to the Act to an APS employee with a classification of Deputy Secretary with responsibility for the administration of the VET FEE‑HELP scheme.
Purpose
This legislative instrument (Instrument) revokes, with effect from the day the determination is registered in the Federal Register of Legislative Instruments, the approval of Phoenix Institute of Australia Pty Ltd ABN 37 084 806 575 (Phoenix) as a VET provider.
Background
Phoenix was approved by a delegate of the Minister as a VET provider by Instrument of Approval No. 40 of 2009 and registered on the Federal Register of Legislative Instruments as instrument No F2009L04056 on 4 November 2009.
A body's approval as a VET provider may be revoked in certain circumstances set out in Subdivision 5-B of Schedule 1A to the Act. The Minister may make a decision under Subdivision 5-B and 5-C of Schedule 1A to the Act to revoke the body's approval as a VET provider.
On 12 October 2015, a delegate of the Minister gave Phoenix notice in writing in accordance with subclause 36(2A) of Schedule 1A to the Act, of an intention to suspend Phoenix as a VET provider.
The delegate of the Minister considered responses received by Phoenix in accordance with subclause 36(2B) of Schedule 1A to the Act.
On 29 January 2016, a delegate to the Minister issued:
- Notice of Intention to Revoke Approval as a VET Provider under subclause 33(1) of Schedule 1A to the Act; and
- Determination of suspension of approval as a VET provider under subclause 36(1) of Schedule 1A to the Act, and accompanying Explanatory Statement and Reasons,
on the basis that Phoenix had breached a number of the VET quality and accountability requirements, namely:
- the VET fairness requirements to hold sufficient tuition assurance;
- the VET quality requirements to comply with the National Vocational Education and Training Regulator Act 2011; and
- the restrictions on the use of inducements in VET enrolments.
On 29 January 2016 the delegate also issued a determination under subclause 37(1) of Schedule 1A to the Act that Phoenix's suspension as a VET provider under clause 36 of Schedule 1A to the
Act is of no effect for the purposes of assistance payable to Phoenix's students under
Part 2 of Schedule 1A to the Act where the assistance relates to the students of Phoenix who have not completed the VET courses of study in which they were enrolled with Phoenix on the day
the suspension determination is registered on the Federal Register of Legislative Instruments.
A delegate to the Minister has now determined that Phoenix’s approval as a VET provider should be revoked.
However, the delegate has also determined under subclause 35(1) of Schedule 1A to the Act that the revocation of Phoenix's approval as a VET provider under clause 33 of Schedule 1A to the Act is of no effect for the purposes of assistance payable to Phoenix's students under Part 2 of Schedule 1A to the Act to the extent that the assistance relates to the students of Phoenix who have not completed the VET courses of study in which they were enrolled with Phoenix on the day the notice revoking Phoenix’s approval as a VET provider is registered on the Federal Register of Legislative Instruments.
Commencement
The suspension of Phoenix's approval as a VET provider takes effect on the day the Determination is registered on the Federal Register of Legislative Instruments.
Consultation
At clause 1.3 of the Notice of Intention to Revoke Approval as a VET Provider, Phoenix was invited to make written submissions as to whether, if Phoenix’s approval as a VET provider was revoked, the delegate should make a determination under clause 35(1) of Schedule 1A to the Act that the revocation is of no effect for the purposes of assistance payable to Phoenix's students who have not completed the VET courses of study in which they were enrolled with Phoenix on the day the determination is registered on the Federal Register of Legislative Instruments.
Phoenix did not respond to the invitation to make submissions.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Determination of Revocation of Approval as a VET provider
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 by a delegate of the Minister under subclause 34(3) of Schedule 1A to the Act. The purpose of the Instrument is to revoke Phoenix's approval as a VET provider.
In accordance with subclause 33(1) of Schedule 1A to the Act, a delegate may revoke a body’s approval as a VET provider.
Under subclause 34(1) of Schedule 1A to the Act a delegate to the Minister must give the VET provider a notice in writing:
(a) stating that the Minister (or their delegate) is considering revoking the body’s approval; and
(b) stating the reasons why the Minister (or their delegate) is considering revoking the body’s approval; and
(c) inviting the body to make written submissions to the Minister (or their delegate) within 28 days concerning why the approval should not be revoked.
On 29 January 2016, a delegate to the Minister issued a notice in accordance with subclause 34(3) of Schedule 1A to the Act.
No submissions were provided by Phoenix in accordance with paragraph 34(1)(c) for the delegate to consider in accordance with subclause 34(2) of Schedule 1A to the Act.
In accordance with subclause 34(3), a delegate of the Minister has issued a notice to Phoenix that Phoenix’s approval as a VET provider is revoked.
In accordance with paragraph 29(a) of Schedule 1A to the Act, a body ceases to be approved a s a VET provider if a decision to revoke the approval is in effect under Subdivision 5-AA, 5-B or 5-D.
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 may affect the provision of vocational education and training by Phoenix as it revokes its approval as a VET provider for the purposes of VET FEE-HELP under the Act, removing its ability to offer VET FEE-HELP assistance to certain students.
The right to education is affected because the Instrument revokes the approval of Phoenix as a VET provider in accordance with Clause 33 of Schedule 1A to the Act, which has the effect of ceasing Phoenix’s approval to deliver education and training to students.
However, in accordance with the Determination made pursuant to clause 35(1) of Schedule 1A to the Act, this Instrument does not affect the capacity of any of Phoenix’s existing students to continue the remainder of their course(s) with Phoenix and to receive VET FEE-HELP assistance for that course.
Additionally, this instrument does not affect the capacity of prospective students to obtain VET FEE-HELP training from another VET provider. Consequently, the right to education for affected students remains engaged.
Conclusion
This Instrument is compatible with human rights because it does not affect the protection of human rights.