EXPLANATORY STATEMENT
Issued by the Authority of the Delegate for the Minister for Education and Training
Higher Education Support Act 2003
Higher Education Support (Advanced Education Australia Pty Ltd) VET Provider Approval Revocation 2017
Authority
The Higher Education Support Act 2003 (the Act) provides the Commonwealth with powers to give financial support for higher education and certain vocational education and training (VET) through grants and other payments to providers, and through financial assistance to students (in the form of loans).
Schedule 1A to the Act provides for loans, called VET FEE-HELP assistance, to be made available to students enrolled in certain VET courses. A body has to be approved by the Minister as a VET provider before its students can receive VET FEE-HELP.
A body’s approval as a VET provider may be revoked by the Minister in certain circumstances, some of which are set out in Subdivision 5-B, Division 5, Part 5 of Schedule 1A to the Act.
Clause 33 of Schedule 1A to the Act provides that the Minister may revoke a body’s approval as a VET provider for a breach of the VET quality and accountability requirements or conditions. Before doing so, the Minister must comply with the requirements of clause 34, which sets out the process for revoking approval.
Under paragraph 238-5(1)(b) of the Act, the Minister has delegated his powers pursuant to clauses 33 and 34 of Schedule 1A to the Act to an APS employee with a classification of SES Employee Band 1 or higher with responsibility for the administration of the VET FEE‑HELP scheme.
Purpose
The purpose of this legislative instrument (the Instrument) is:
(a) to provide notice to Advanced Education Australia Pty Ltd (Advanced Education Australia) of the decision to revoke its approval as a VET provider; and
(b) to revoke the legislative instrument Higher Education Support Act 2003 - VET Provider Approval (No. 69 of 2014) (F2014L01637).
Background
Advanced Education Australia was approved by the Minister’s delegate as a VET provider pursuant to Higher Education Support Act 2003 - VET Provider Approval (No. 69 of 2014) which was registered on the Federal Register of Legislation on 4 December 2014 (F2014L01637).
On 6 October 2017 a delegate of the Minister gave Advanced Education Australia notice in writing of an intention to revoke Advanced Education Australia as a VET provider on the basis that it may be in breach of the VET quality and accountability requirements by not complying with the VET compliance requirement. The notice was issued in accordance with subclause 34(1) of Schedule 1A to the Act and invited Advanced Education Australia to make written submissions within 28 days concerning why its approval should not be revoked.
Advanced Education Australia made written submissions on 3 November 2017 stating reasons its approval as a VET provider should not be revoked.
On 16 November 2017, the Department of Education and Training provided further evidentiary material to Advanced Education Australia and invited it to make submissions in response. Advanced Education Australia responded on 22 November 2017 but made no further submissions on the evidence.
After careful consideration of Advanced Education Australia’s 3 November 2017 submissions, the delegate is satisfied that Advanced Education Australia has breached the VET quality and accountability requirements and that it is appropriate to revoke Advanced Education Australia’s approval as a VET provider.
In accordance with paragraph 29(a) of Schedule 1A to the Act, a body ceases to be approved as a VET provider if a decision to revoke the approval is in effect under Subdivision 5-AA, 5‑B or 5-D, Division 5, Part 5.
This Instrument is a notice of revocation given under clause 34 of Schedule 1A to the Act.
Consistent with the requirements of subclause 34(5) of Schedule 1A to the Act, the revocation takes effect on the day that the Instrument is registered on the Federal Register of Legislation.
Consultation
Consultation was undertaken with Advanced Education Australia in accordance with the process established under subclause 34(1) of Schedule 1A to the Act. Written submissions were made by Advanced Education Australia within the prescribed statutory timeframe in response to the proposed notice of intention to revoke it as a VET provider. As Advanced Education Australia is the only body affected by the Instrument, further consultation with other entities was considered not necessary.
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003 (subclause 34(3A) of Schedule 1A to the Act).
The Instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in the Attachment.
Details of the Higher Education Support (Advanced Education Australia Pty Ltd) VET Provider Approval Revocation 2017
Section 1 - Name
This section provides that the name of the Instrument is the Higher Education Support (Advanced Education Australia Pty Ltd) VET Provider Approval Revocation 2017 (the Instrument).
Section 2 - Commencement
This section provides that the Instrument commences on the day that the Instrument is registered on the Federal Register of Legislation. This is consistent with the requirement in subclause 34(5) of Schedule 1A to the Act.
Section 3 - Authority
This section provides that the authority for the Instrument is under clauses 33 and 34 of Schedule 1A to the Act.
Section 4 - Definitions
This section provides definitions for terms used in the Instrument.
Section 5 – Notice of Decision to Revoke Approval As A VET Provider
This section provides for the notice required to be given under subclause 34(3) by the Minister or his delegate following a decision to revoke a body’s approval as a VET Provider under the Act.
It also makes clear that Advanced Education Australia’s approval as a VET provider is revoked by revoking the legislative instrument which notified its original approval (Higher Education Support Act 2003 – VET Provider Approval (No. 69 of 2014) (F2014L01637)).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Higher Education Support (Advanced Education Australia Pty Ltd) VET Provider Approval Revocation 2017
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 Instrument
Clauses 33 and 34 of Schedule 1A to the Higher Education Support Act 2003 (the Act) provides that the Minister may, by legislative instrument, revoke a body’s approval as a VET provider under Subdivision 5-B, Division 5, Part 5 of Schedule 1A to the Act.
The purpose of Higher Education Support (Advanced Education Australia Pty Ltd) VET Provider Approval Revocation 2017 (the Instrument) is to provide notice to Advanced Education Australia Pty Ltd (Advanced Education Australia) of a decision to revoke its approval as a VET provider under subclause 33(1) of Schedule 1A to the Act (revocation of approval as a provider for a breach of the VET quality and accountability requirements or of conditions), and to revoke the legislative instrument Higher Education Support Act 2003 - VET Provider Approval (No. 69 of 2014) (F2014L01637).
Human rights implications
This 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 (VET) by Advanced Education Australia as it revokes its approval as a VET provider for the purposes of VET FEE‑HELP under the Act which removes its ability to offer VET FEE-HELP assistance to certain students.
However, this Instrument does not affect the capacity of Advanced Education Australia to continue to deliver education and training, it only removes its ability to offer VET FEE-HELP to students enrolled in its courses. From 1 January 2017, the VET FEE-HELP scheme was replaced by the VET Student Loans program and no new students have been able to apply for VET FEE-HELP assistance. Only students who met a specific set of eligibility criteria were able to continue to receive VET FEE-HELP assistance in 2017, therefore the number of existing VET FEE-HELP students who may be affected is low. In addition, in the event that Advanced Education ceases to offer a course to existing VET FEE-HELP students in 2017, tuition assurance arrangements apply to assist student find a replacement VET FEE-HELP provider or have their FEE-HELP balances re-credited and VET FEE-HELP debts remitted for the units of study which they were unable to complete due to Advanced Education ceasing to provide the course. Consequently, the right to education for affected students remains engaged.
Conclusion
This Instrument is compatible with human rights as it does not raise any human rights issues.
Brendan Morling
Delegate of the Minister for Education and Training