EXPLANATORY STATEMENT
Issued by the Authority of the Delegate for the Minister for Education and Training
Higher Education Support Act 2003
Higher Education Support (Australian Institute of Professional Education) Higher Education Provider Approval Revocation 2016
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 (usually in the form of loans).
The Act provides for loans, called FEE-HELP assistance, to be made available to students enrolled in certain higher education courses. A body has to be approved by the Minister as a higher education provider before its students can receive FEE-HELP.
A body’s approval as a higher education provider may be revoked by the Minister in certain circumstances, some of which are set out in Subdivision 5-B of the Act.
Clause 22-15 of the Act provides that the Minister may revoke a body’s approval as a higher education provider for a breach of conditions or the quality and accountability requirements. Before doing so, the Minister must comply with the requirements of clause 22-20, which sets out the process for revoking approval.
Under paragraph 238-5(1)(b) of the Act, the Minister has delegated his or her powers under clauses 22-15 and 22-20 of the Act to an APS employee with a classification of
SES Employee Band 1 or higher with responsibility for the administration of the
FEE-HELP scheme.
Purpose
The purpose of this legislative instrument (the Instrument) is:
(a) to provide notice to Australian Institute of Professional Education (AIPE) of the decision to revoke its approval as a higher education provider; and
(b) to revoke the legislative instrument Higher Education Support Act 2003 – Higher Education Provider Approval No. 3 of 2014, F2014 L00442.
Background
AIPE was approved by the Minister’s delegate as a higher education provider pursuant to Higher Education Support Act 2003 – Higher Education Provider Approval (No. 3 of 2014) which was registered on the Federal Register of Legislation on 28 April 2014 (F2014L00442).
On 11 November 2016 a delegate of the Minister gave AIPE notice in writing of an intention to revoke AIPE as a higher education provider on the basis that it did not meet the quality and accountability requirements or conditions. AIPE was placed under voluntary administration on 13 October 2016. The notice was issued in accordance with clause 22-15 of the Act and invited AIPE to make written submissions within 28 days concerning why its approval should not be revoked.
This Instrument is a notice of revocation given under clause 22-20 of the Act.
In accordance with paragraph 22-1(a) of the Act, a body ceases to be approved as a higher education provider if a decision to revoke the approval is in effect under Subdivision 22-AA,
22-B or 22-D.
Consistent with the requirements of subclause 22-20(5) of the Act, the revocation takes effect on the day that the Instrument is registered.
Procedural Fairness
Consistent with clause 22-20 of the Act, AIPE was provided a Notice of Intention to Revoke Approval as a Higher Education FEE-HELP Provider. As such, AIPE was invited to make a written submission to the Minister within 28 days concerning why the approval should not be revoked.
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003 (subclause 22-20(3A) of 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 Australian Institute of Professional Education Higher Education Provider Approval Revocation 2016
Section 1 - Name
This section provides that the name of the Instrument is the Higher Education Support Australian Institute of Professional Education Higher Education Provider Approval Revocation 2016 (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 22-20(5) of the Act.
Section 3 - Authority
This section provides that the authority for the Instrument is under clauses 22-15 and 22-20 of 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 Higher Education Provider
This section makes it clear that AIPE’s approval as a higher education provider is revoked.
It also revokes the legislative instrument which notified its original approval.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Higher Education Support Australian Institute of Professional Education Higher Education Provider Approval Revocation 2016
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 22-15 and 22-20 of the Higher Education Support Act 2003 (the Act) provides that the Minister may, by legislative instrument, revoke a body’s approval as a higher education provider under Subdivision 22-B of the Act.
The purpose of this Instrument is to provide notice to Australian Institute of Professional Education (AIPE) of a decision to revoke its approval as a higher education provider under clause 22-15 of the Act (Revocation of approval as a provider for a breach of conditions or the quality and accountability requirements).
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 higher education by AIPE as it revokes its approval as a higher education provider for the purposes of FEE-HELP under the Act which removes its ability to offer FEE-HELP assistance to certain students.
On 28 October 2016, the Australian Council for Private Education and Training (ACPET), advised that AIPE will cease trading from 29 October 2016. As such, AIPE will be unable to continue to deliver FEE-HELP courses to existing students.
AIPE’s current students may obtain FEE-HELP training from another higher education provider. 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.
Katerina Lawler
Delegate of the Minister