Higher Education Support Amendment (No. 1) Act 2011

Administered by Department of Education

Legislation au C2011A00072 In force Act

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No. 72, 2011

An Act to amend the Higher Education Support Act 2003, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendments

Higher Education Support Act 2003

Higher Education Support Amendment (No. 1) Act 2011

No. 72, 2011

An Act to amend the Higher Education Support Act 2003, and for related purposes

[Assented to 29 June 2011]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Higher Education Support Amendment (No. 1) Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	29 June 2011
2. Schedule 1	The day after this Act receives the Royal Assent.	30 June 2011

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Higher Education Support Act 2003

1 Section 16‑25

Before “The Minister”, insert “(1)”.

2 Paragraph 16‑25(aa)

Repeal the paragraph, substitute:

(aa) subject to subsection (2), the body’s principal purpose is, or is taken to be, either or both of the following:

(i) to provide education;

(ii) to conduct research; and

3 At the end of section 16‑25

Add:

; and (g) the Minister is satisfied that:

(i) the body; and

(ii) each person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body’s affairs;

is a fit and proper person.

(2) For the purpose of paragraph (1)(aa), the Minister may determine that a body’s principal purpose is taken to be either or both of the following:

(a) to provide education;

(b) to conduct research;

if the Minister is satisfied that any of the body’s purposes do not conflict with the body’s purpose of providing education and/or conducting research.

(3) The Minister must, in deciding whether he or she is satisfied that a person is a fit and proper person, take into account the matters specified in an instrument under subsection (4). The Minister may take into account any other matters he or she considers relevant.

(4) The Minister must, by legislative instrument, specify matters for the purposes of subsection (3).

4 Subsection 16‑50(2)

Omit “paragraph 16‑25(f)”, substitute “paragraph 16‑25(1)(f)”.

5 At the end of Subdivision 16‑C

Add:

16‑60 Conditions of approval

(1) The Minister may impose conditions on a body corporate’s approval as a higher education provider. Such conditions need not be imposed at the time notice of approval is given to the provider.

(2) The Minister may vary a condition imposed under subsection (1).

16‑65 Minister to cause higher education provider to be notified of change in condition of approval

The Minister must, within 30 days of his or her decision to impose or vary a condition on a higher education provider, cause the provider to be notified, in writing, of:

(a) the decision; and

(b) the reasons for the decision; and

6 Section 22‑7

Before “The Minister”, insert “(1)”.

7 Paragraphs 22‑7(a) and (b)

Repeal the paragraphs, substitute:

(a) the body’s principal purpose is no longer, or is no longer taken to be, either or both of the following:

(i) to provide education;

(ii) to conduct research; and

8 At the end of section 22‑7

Add:

(2) The Minister may also revoke a body’s approval as a higher education provider if:

(a) the Minister is satisfied that any of the body’s purposes conflict with the body’s principal purpose of providing education and/or conducting research; and

(b) the Minister complies with the requirements of section 22‑20.

9 Subparagraph 22‑10(5)(a)(i)

Omit “paragraph 16‑25(a)”, substitute “paragraph 16‑25(1)(a)”.

10 Subparagraph 22‑10(5)(a)(ii)

Omit “paragraph 16‑25(da)”, substitute “paragraph 16‑25(1)(da)”.

11 Paragraph 22‑15(1)(a)

Omit “either”.

12 Subparagraph 22‑15(1)(a)(ii)

Omit “; and”, substitute “; or”.

13 At the end of paragraph 22‑15(1)(a)

Add:

(iii) breached a condition imposed on the body’s approval; and

14 At the end of subsection 22‑15(1)

Add:

Note: Section 16‑60 allows conditions to be imposed on the body’s approval.

15 At the end of Subdivision 22‑B

Add:

22‑17 Revocation of approval as a provider if provider etc. not a fit and proper person

(1) The Minister may revoke a body’s approval as a higher education provider if the Minister:

(a) is satisfied that:

(i) the body; or

(ii) at least one person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body’s affairs;

is not a fit and proper person; and

(b) complies with the requirements of section 22‑20.

(2) The Minister must, in deciding whether he or she is satisfied that a person is not a fit and proper person, take into account the matters specified in an instrument under subsection 16‑25(4). The Minister may take into account any other matters he or she considers relevant.

Note: The heading to section 22‑20 is altered by omitting “as a provider for loss of status or a breach”.

16 After subsection 22‑30(2)

Insert:

(2A) Before the Minister makes a determination under subsection (1) in respect of a body, the Minister must give the body notice in writing:

(a) stating that the Minister is considering suspending the body’s approval; and

(b) stating the reasons why the Minister is considering suspending the body’s approval; and

(2B) In deciding whether or not to make a determination under subsection (1), the Minister must consider any response received from the body within the 14 day period.

17 Subsection 22‑30(3)

Omit “48 hours”, substitute “a reasonable period of time”.

18 Section 206‑1 (before table item 1A)

Insert:

1AA	A decision to impose a condition on the approval of a higher education provider	subsection 16‑60(1)	the Minister
1AB	A decision to vary a condition imposed on the approval of a higher education provider	subsection 16‑60(2)	the Minister

19 Clause 6 of Schedule 1A

Before “The Minister”, insert “(1)”.

20 Paragraph 6(b) of Schedule 1A

Repeal the paragraph, substitute:

(b) subject to subsection (2), providing education is, or is taken to be, the body’s principal purpose; and

21 At the end of clause 6 of Schedule 1A

Add:

; and (h) the Minister is satisfied that:

(i) the body; and

(ii) each person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body’s affairs;

is a fit and proper person.

(2) For the purpose of paragraph (1)(b), the Minister may determine that providing education is taken to be a body’s principal purpose if the Minister is satisfied that any of the body’s purposes do not conflict with the body’s purpose of providing education.

(3) The Minister must, in deciding whether he or she is satisfied that a person is a fit and proper person, take into account the matters specified in an instrument under subclause (4). The Minister may take into account any other matters he or she considers relevant.

(4) The Minister must, by legislative instrument, specify matters for the purposes of subclause (3).

22 Subclauses 11(2) and (2A) of Schedule 1A

Omit “paragraph 6(f)”, substitute “paragraph 6(1)(f)”.

23 At the end of Subdivision 3‑B of Schedule 1A

Add:

12A Conditions of approval

(1) The Minister may impose conditions on a body corporate’s approval as a *VET provider. Such conditions need not be imposed at the time notice of approval is given to the provider.

(2) The Minister may vary a condition imposed under subsection (1).

12B Minister to cause VET provider to be notified of change in condition of approval

The Minister must, within 30 days of his or her decision to impose or vary a condition on a *VET provider, cause the provider to be notified, in writing, of:

(a) the decision; and

(b) the reasons for the decision; and

24 Paragraph 30A(a) of Schedule 1A

Omit “paragraph 6(a)”, substitute “paragraph 6(1)(a)”.

25 Paragraph 31(a) of Schedule 1A

Repeal the paragraph, substitute:

(a) either:

(i) providing education is no longer, or is no longer taken to be, the body’s principal purpose; or

(ii) the Minister is satisfied that any of the body’s purposes conflict with the body’s principal purpose of providing education; and

26 Paragraph 33(1)(a) of Schedule 1A

Repeal the paragraph, substitute:

(a) is satisfied that the body has either:

(i) breached a *VET quality and accountability requirement; or

(ii) breached a condition imposed on the body’s approval; and

Note: The heading to clause 33 of Schedule 1A is altered by adding at the end “or of conditions”.

27 At the end of subclause 33(1) of Schedule 1A

Add:

Note: Clause 12A allows conditions to be imposed on the body’s approval.

28 At the end of Subdivision 5‑B of Schedule 1A

Add:

33A Revocation of approval as a provider if provider etc. not a fit and proper person

(1) The Minister may revoke a body’s approval as a *VET provider if the Minister:

(a) is satisfied that:

(i) the body; or

(ii) at least one person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body’s affairs;

is not a fit and proper person; and

(b) complies with the requirements of clause 34.

(2) The Minister must, in deciding whether he or she is satisfied that a person is not a fit and proper person, take into account the matters specified in an instrument under subclause 6(4). The Minister may take into account any other matters he or she considers relevant.

Note: The heading to clause 34 of Schedule 1A is altered by omitting “as a provider for loss of status or a breach”.

29 After subclause 36(2) of Schedule 1A

Insert:

(2A) Before making a determination under subclause (1) in respect of a body, the Minister must give the body notice in writing:

(a) stating that the Minister is considering suspending the body’s approval; and

(b) stating the reasons why the Minister is considering suspending the body’s approval; and

(2B) In deciding whether or not to make a determination under subclause (1), the Minister must consider any response received from the body within the 14 day period.

30 Subclause 36(3) of Schedule 1A

Omit “48 hours”, substitute “a reasonable period of time”.

31 Clause 91 of Schedule 1A (before table item 1)

Insert:

1A	A decision to impose a condition on the approval of a *VET provider	subclause 12A(1)	the Minister
1B	A decision to vary a condition imposed on the approval of a *VET provider	subclause 12A(2)	the Minister

32 Application

(1) Paragraphs 16‑25(1)(aa) and (g) and subsections 16‑25(2), (3) and (4) of the Higher Education Support Act 2003 (as inserted by this Act) apply in relation to an application for approval made on or after this item commences.

(2) The amendments made by items 5, 11, 12, 13 and 14 apply in relation to a body approved as a higher education provider before, on or after this item commences.

(3) The amendments made by items 7, 8, 15, 25 and 28 apply in relation to an approval given before, on or after this item commences.

(4) The amendments made by items 16 and 17 apply in relation to a notice given under subsection 22‑30(2A) of the Higher Education Support Act 2003 (as inserted by this Act) after this item commences.

(5) Paragraph 6(1)(b) and subclause 6(2) of Schedule 1A to the Higher Education Support Act 2003 (as inserted by this Act) apply in relation to an application for approval made before, on or after this item commences.

(6) Paragraph 6(1)(h) and subclauses 6(3) and (4) of Schedule 1A to the Higher Education Support Act 2003 (as inserted by this Act) apply in relation to an application for approval made on or after this item commences.

(7) The amendments made by items 23, 26 and 27 apply in relation to a body approved as a VET provider before, on or after this item commences.

(8) The amendments made by items 29 and 30 apply in relation to a notice given under subclause 36(2A) of Schedule 1A to the Higher Education Support Act 2003 (as inserted by this Act) after this item commences.

[Minister’s second reading speech made in—

Senate on 10 February 2011

House of Representatives on 22 June 2011]

(1/11)

Overview

The Higher Education Support Amendment (No. 1) Act 2011, enacted by the Parliament of Australia, was introduced to address the need for amendments to the Higher Education Support Act 2003, focusing on the approval and regulation of higher education providers, particularly concerning their educational purposes and the fitness of decision-makers within these institutions. The Act aims to ensure that higher education providers maintain a primary focus on education and research, while also reinforcing the requirement that both the institutions and their key decision-makers are fit and proper persons. This is achieved by granting the Minister for Education the authority to impose, vary, or revoke conditions on providers' approvals, as well as to revoke approvals altogether if certain conditions are not met. The policy objective is to safeguard the integrity and quality of higher education in Australia, ensuring that institutions and their governance structures align with the educational objectives and standards expected by the nation. The Act also extends its provisions to vocational education and training (VET) providers, ensuring a consistent regulatory framework across both higher education and VET sectors. By amending the Higher Education Support Act 2003, the legislation enhances the regulatory measures available to the Minister, allowing for more flexible and responsive management of provider approvals. This includes the ability to notify providers of changes in conditions of approval within a specified timeframe and to consider responses from providers before making final decisions on suspension or revocation of approvals. The overarching goal is to maintain and enhance the quality and integrity of education and training services in Australia.

Scope and Application

The Higher Education Support Amendment (No. 1) Act 2011 amends the Higher Education Support Act 2003 to enhance the regulatory framework governing higher education providers and vocational education and training (VET) providers in Australia. This Act applies to entities seeking approval as higher education providers and VET providers, and it encompasses both existing and prospective providers. The Minister for Education has the authority to impose and vary conditions on the approval of these providers, ensuring they adhere to specified standards and criteria. Additionally, the Act allows the Minister to revoke the approval of a provider if it is found not to be a fit and proper person or if the provider breaches conditions of approval or VET quality and accountability requirements. The geographic reach of this Act is national, applying across all states and territories in Australia, and it extends to any entity involved in the provision of higher education or VET services within the Commonwealth. Certain exclusions and exemptions may apply, particularly concerning the specifics of how the fit and proper person test is applied, which can be detailed in subordinate instruments. The Act does not explicitly state any thresholds for its application, indicating that its provisions apply broadly to all relevant entities without a specified minimum size or scope of operations.

Key Provisions

The Higher Education Support Amendment (No. 1) Act 2011 amends the Higher Education Support Act 2003 to introduce several new provisions and modify existing ones. Section 16-25 now includes an additional requirement that the Minister must be satisfied that the body and its decision-makers are fit and proper persons. Paragraph 16-25(aa) has been altered to specify that a body's principal purpose must be either to provide education or conduct research, subject to certain conditions. The Minister can impose and vary conditions on a body's approval as a higher education provider (Section 16-60) and must notify the body of any such changes within 30 days (Section 16-65). Section 22-7 outlines the grounds for the revocation of approval, including changes in principal purpose and breaches of approval conditions. Additionally, Section 22-17 allows for the revocation of approval if the Minister is not satisfied that the body or its decision-makers are fit and proper persons. The Act imposes several obligations on the parties it governs. Higher education providers must ensure their principal purpose aligns with providing education or conducting research, as determined by the Minister. They must also ensure that all decision-makers within the organisation are fit and proper persons. Additionally, providers must comply with any conditions imposed on their approval and respond appropriately to any notices regarding potential suspension or revocation of their approval. The Minister, on the other hand, must specify matters to consider when determining if a person is fit and proper, give the provider notice and a chance to respond before suspending or revoking approval, and notify the provider of any changes to approval conditions within 30 days. Breaches of the provisions in this Act can lead to various consequences. For example, failing to maintain a principal purpose of providing education or conducting research can result in the revocation of approval. Similarly, not being a fit and proper person can also lead to revocation. Additionally, breaching any conditions imposed on approval can result in disciplinary action. The Act does not explicitly state maximum penalties for these breaches, but revocation of approval is a significant consequence that can effectively shut down the operations of a higher education provider.

Area of Law: Education Law; Corporate Law & Governance
Instrument: Amending Act
Concepts: Commencement Provisions; Conditions of Approval; Revocation of Approval; Notification Requirements; Compliance Obligations; Regulatory Standards

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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.

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