EXPLANATORY STATEMENT
Approval and Notice of Approval under subclauses 6(1A) and 11(1) of Schedule 1A
to the Higher Education Support Act 2003
VET Provider Approval No. 40 of 2013
Issued by the authority of the Minister for Higher Education
Authority
Subclause 6(1A) of Schedule 1A to the Higher Education Support Act 2003 (the Act) provides for the approval of bodies as VET providers by the Minister. Paragraph 11(1)(a) of Schedule 1A to the Act provides that the Minister must decide an application for approval as a VET provider and under paragraph 11(1)(b) cause the applicant to be notified in writing whether or not the applicant is approved as a VET provider.
Under section 238-5 of the Act the Minister has delegated his powers under clauses 6 and 11 of Schedule 1A to the Act to an APS employee responsible for administering the Act.
Subclause 12(1) Schedule 1A to the Act stipulates that a notice of approval under paragraph 11(1)(b) of the Act is a legislative instrument.
Purpose
This Instrument:
- approves the State of Queensland as represented by the Southbank Institute of Technology, as a VET provider under subclause 6(1A) of Schedule 1A to the Act;
- decides the application of the State of Queensland as represented by the Southbank Institute of Technology, for the purposes of paragraph 11(1)(a) of Schedule 1A to the Act; and
- gives the State of Queensland as represented by the Southbank Institute of Technology, notice of that approval for the purposes of paragraph 11(1)(b) of Schedule 1A to the Act.
Background
VET FEE-HELP is an income contingent loan scheme for the vocational education and training (VET) sector that is part of the Higher Education Loan Program (HELP). It is an extension of the higher education FEE‑HELP arrangements. VET FEE-HELP assists eligible students to pay for all or part of their VET tuition fees when studying one or more of the following eligible accredited VET courses of study: diploma; advanced diploma; graduate certificate; and graduate diploma.
On 17 July 2013 a delegate of the Minister for Higher Education was notified in writing that the Southbank Institute of Technology, which had been a statutory TAFE established under Chapter 6A of the Vocational Education, Training and Employment Act 2000 (QLD) (‘VETE Act’), and therefore a body corporate, had been dissolved from 1 July 2013, and its assets and liabilities had been transferred to the State of Queensland.
In its place, the State of Queensland had concurrently established a TAFE Institute under chapter 6 of the VETE Act, which is also known as Southbank Institute of Technology.
The former body corporate known as Southbank Institute of Technology, had been previously approved as a VET provider under Schedule 1A of the Act, but that approval ceased when the body corporate was dissolved.
The State of Queensland has requested that the newly established TAFE Institute, be approved as a VET Provider under Schedule 1A of the Act.
In accordance with subclause 6(1A) of Schedule 1A to the Act, bodies of a kind established under the legislation listed at clause 2.2 of the VET Guidelines are able to apply to become approved as a VET provider. In accordance with paragraph 2.2.1(c) of the VET Guidelines, as the Southbank Institute of Technology was, on 1 July 2013 established by the State of Queensland to provide vocational education and training under the VETE Act, that body is eligible to seek approval as a VET Provider.
The retrospective operation of this Instrument will ensure that there is no disadvantage to students currently or previously enrolled with either the former statutory TAFE, or the current TAFE Institute, known as Southbank Institute of Technology for the purposes of VET FEE‑HELP. Therefore, this will allow approximately 1,200 students to continue to receive VET FEE‑HELP for the entirety of the VET course of study they are currently undertaking. The approval will also maintain the students’ rights to study and protections afforded under the Scheme, thereby ensuring that students are not compromised due to a transfer of functions by the provider.
Commencement
The Instrument is taken to have commenced on 1 July 2013. 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 liabilities of a 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 the State of Queensland as represented by the Southbank Institute of Technology, 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 subclause 6(1A), paragraph 11(1)(b) and subclause 12(1) of Schedule 1A to the Act. The purpose of the Instrument is to approve the State of Queensland as represented by the Southbank Institute of Technology, as a VET provider for the purposes of the VET FEE‑HELP Assistance Scheme under the Act. For approval as a VET provider the Minister must be satisfied that the body meets the requirements of subclause 6(1A) of Schedule 1A to the Act.
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 has an effect on the provision of vocational education and training by the State of Queensland as represented by the Southbank Institute of Technology, by approving it as a VET provider for the purposes of the VET FEE-HELP Assistance Scheme under the Act, enabling it to offer VET FEE‑HELP assistance to its eligible students.
The objective of the Instrument is to approve the State of Queensland as represented by the Southbank Institute of Technology as a VET provider under the Act and thereby enable eligible students of the State of Queensland as represented by the Southbank Institute of Technology, to access VET FEE‑HELP assistance for VET 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 State of Queensland as represented by the Southbank Institute of Technology as a VET provider, thereby extending VET 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.