EXPLANATORY STATEMENT
Issued by the authority of the Minister for Education and Youth
Higher Education Support Act 2003
Higher Education Support (Approval of Asia Pacific International College Pty Ltd) Approval 2021
AUTHORITY
Subsection 16-25(1) of the Higher Education Support Act 2003 (the Act) provides that the Minister may approve a body corporate as a higher education provider if the body satisfies the requirements listed in that section. These requirements include making an application to the Minister under section 16-40 for approval as a higher education provider.
In approving an application, the Minister must be satisfied that the body meets the requirements of section 16-25 of the Act. Paragraphs 16-50(1)(a) and (b), respectively, require the Minister to decide the application and cause the applicant to be notified in writing whether or not the applicant is approved as a higher education provider. Subsection 16-55 specifies that a notice of approval under paragraph 16‑50(1)(b) is a legislative instrument.
The powers and functions of the Minister under subsection 16-25(1) and 16-50(1) are delegated to certain persons, including SES employees who hold a position that is classified as a Senior Executive Band 1 under the Public Service Classification Rules 2000.
PURPOSE AND OPERATION
The purpose of the Instrument is to approve Asia Pacific International College Pty Ltd (the College) as a higher education provider for the purposes of the Act and to notify the College of its approval.
As an approved higher education provider, the College is eligible to receive certain grants made under the Act and its students are eligible to receive certain financial assistance from the Commonwealth.
CONDITIONS OF APPROVAL
Under subsection 16-60(1) of the Act, the Minister may impose conditions on a body corporate’s approval as a higher education provider. Section 16-65 requires the Minister to cause the higher education provider to be notified of any conditions that have been imposed, the reasons for the decision and the period for which the condition is imposed.
The College has been notified that the following conditions are imposed on the approval:
1. Asia Pacific International College Pty Ltd must maintain adequate liquidity levels as measured by a current ratio of 1.0 or above for the period of its approval.
2. Asia Pacific International College Pty Ltd must maintain a positive equity position for the period of its approval.
3. Asia Pacific International College Pty Ltd will not provide any new guarantees or loans to its directors or related entities that could have a material effect on its finances.
4. Asia Pacific International College Pty Ltd must not offer its assets as security for the benefit of any other person or entity including associated entities except as a consequence of any commercial loan arrangements with a recognised financial institution for the period of its approval. Associated entity has the meaning given by section 50AAA of the Corporations Act 2001.
5. Asia Pacific International College Pty Ltd must provide the department responsible for administering the Higher Education Support Act 2003 with all required financial information as specified in the Financial Viability Instructions, on an annual basis by no later than 30 June each year for the period of its approval.
6. Asia Pacific International College Pty Ltd must, in writing, advise the department responsible for administering the Higher Education Support Act 2003 of any events affecting Asia Pacific International College Pty Ltd or a related entity that may significantly affect the capacity of Asia Pacific International College Pty Ltd to meet the quality and accountability requirements under the Act for the period of its approval. The written advice must be provided within 10 working days of the event occurring.
7. Asia Pacific International College Pty Ltd must inform the department responsible for administering the Higher Education Support Act 2003 in writing of changes to directors, company structure and/or its constitution for the period of its approval. The written advice must be provided within 10 working days of the event occurring.
8. Asia Pacific International College Pty Ltd must, as soon as practicable, advise the department responsible for administering the Higher Education Support Act 2003 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 operations for the period of its approval.
9. Asia Pacific International College Pty Ltd must, as soon as practicable, advise the department responsible for administering the Higher Education Support Act 2003 of any regulatory activity that has been or is being undertaken in relation to Australian Consumer Law and/or fair trading laws for the period of its approval.
10. Asia Pacific International College Pty Ltd must provide the department responsible for administering the Higher Education Support Act 2003 with consolidated financial statements for its parent entity, Education Centre of Australia Pty Limited, each year. These statements are to be provided at the same time that Asia Pacific International College Pty Ltd provides its own financial information to the department.
Under subsection 16-60 of the Act, the Minister may vary conditions of approval. The College must be notified within 30 days of a decision to vary a condition of approval, the reasons for the decision and the period for which the varied condition is imposed.
The Minister may also make a decision to revoke conditions.
REGULATORY IMPACT
The Office of Best Practice Regulation has advised that no RIS is needed as this instrument gives effective to a previous decision of Government.
COMMENCEMENT
The Instrument commences on the day after it is registered on the Federal Register of Legislation.
CONSULTATION
The department undertook consultation with the College to assist the delegate of the Minister in deciding whether to approve the body as a higher education provider. Public consultation was not undertaken and was not considered necessary, as the College is the only body affected by the notice.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Higher Education Support (Approval of Asia Pacific International College Pty Ltd) Approval 2021
The Higher Education Support (Approval of Asia Pacific International College Pty Ltd) Approval Instrument 2021 (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 purpose of the Instrument is to approve Asia Pacific International College Pty Ltd (the College) as a higher education provider for the purposes of the Act and to notify the College 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.’
As an approved higher education provider, the College is eligible to receive certain grants made under the Act and its students are eligible to receive certain financial assistance from the Commonwealth.
Grants to the College and to its students promote the right to education by enabling students and prospective students to access courses at the College based on capacity, rather than on financial means.
Conclusion
The Instrument is compatible with human rights because it promotes the right to education.
Minister for Education and Youth
HIGHER EDUCATION SUPPORT (APPROVAL OF ASIA PACIFIC INTERNATIONAL COLLEGE PTY LTD) APPROVAL 2021
EXPLANATION OF PROVISIONS
Section 1: Name
- This section specifies the name of the instrument as the Higher Education Support (Approval of Asia Pacific International College Pty Ltd) Approval Instrument 2021 (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. The instrument is made by the delegate of the Minister under section 16-25 of paragraph 16‑50(1)(b) of the Higher Education Support Act 2003.
Section 4: Definitions
4. This section defines the term ‘Act’ for the purposes of the Instrument.
5. ‘Act’ is defined as the Higher Education Support Act 2003.
Section 5: Approval
6. This section approves Asia Pacific International College Pty Ltd as a higher education provider for the purposes of the Act.
7. As an approved higher education provider, the College is eligible to receive certain grants made under the Act and its students are eligible to receive certain financial assistance from the Commonwealth.