Higher Education Support (Notice of Approval – ECA Higher Education Institute Pty Ltd) Instrument 2023

Administered by Department of Education

Legislation au F2023L00789 In force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by the authority of a delegate of the Minister for Education

Higher Education Support Act 2003

Higher Education Support (Notice of Approval – ECA Higher Education Institute Pty Ltd) Instrument 2023

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.

Paragraph 16-50(1)(a) of the Act provides the Minister must decide an application by a body corporate for approval as a higher education provider, and under paragraph 16-50(1)(b) of the Act, cause the applicant to be notified in writing whether or not the applicant is approved as a higher education provider.

Subsection 16-55(1) of the Act also provides that a notice of approval under paragraph 16‑50(1)(b) of the Act is a legislative instrument.

In accordance with section 238-5 of the Act, the functions and powers of the Minister under subsections 16-25(1) and 16-50(1) have been delegated to certain persons, including SES employees in the Department of Education who hold a position that is classified as a Senior Executive Band 1 under the Public Service Classification Rules 2000. These delegations are subject to the general direction issued by the Minister under subsection 238-5(2) of the Act. The general direction provides that the employee must not exercise the delegated power unless they have responsibility for, or involvement with, the administration of a program for which it is necessary to exercise the delegation.

PURPOSE AND OPERATION

The purpose of the Higher Education Support (Notice of Approval – ECA Higher Education Institute Pty Ltd) Instrument 2023 (the Instrument) is to approve ECA Higher Education Institute Pty Ltd (ECA) as a higher education provider for the purposes of the Act and notify ECA of its approval. As indicated above, a body corporate must satisfy the criteria in subsection 16-25(1) relating to the body corporate’s suitability and ability to be an approved higher education provider before the Minister or delegate can approve it as a higher education provider. The delegate is satisfied that ECA satisfies all applicable criteria in subsection 16-25(1).

As an approved higher education provider, ECA is eligible to receive certain grants made under the Act and its students are eligible to receive certain financial assistance from the Commonwealth.   

An approval of a higher education provider given under subsection 16-25(1) is exempt from sunsetting under item 33 in the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. It is not appropriate to subject approvals given under subsection 16-25(1) to sunsetting as stringent statutory review processes under the Act currently apply to approvals of higher education providers, and approvals are able to be revoked for a number of reasons under the Act. Division 22 of the Act provides circumstances where a higher education provider’s approval will be revoked, for example, see section 22-15 which provides that the Minister for Education may revoke a higher education provider’s approval if that provider breaches any conditions on its approval or the quality and accountability requirements in Division 19 of the Act.

REGULATORY IMPACT

The Office of Best Practice Regulation (OBPR) has advised that the Instrument is unlikely to have more than a minor regulatory impact and therefore a regulation impact statement is not required for this Instrument (OPBR reference 22-02827).

COMMENCEMENT

The Instrument commences on the day after it is registered on the Federal Register of Legislation.

CONSULTATION

The department undertook consultation with ECA to assist the delegate of the Minister in deciding whether to approve the body as a higher education provider. Public consultation was not undertaken or considered necessary as ECA 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 (Notice of Approval – ECA Higher Education Institute Pty Ltd) Instrument 2023

The Higher Education Support (Notice of Approval – ECA Higher Education Institute Pty Ltd) Instrument 2023 (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 ECA Higher Education Institute Pty Ltd (ECA) as a higher education provider for the purposes of the Higher Education Support Act 2003 (the Act) and notify ECA of its approval.  A body corporate must satisfy the criteria in subsection 16-25(1) relating to the body corporate’s suitability and ability to be an approved higher education provider before the Minister or delegate can approve it as a higher education provider. The delegate is satisfied that ECA satisfies all applicable criteria in subsection 16-25(1).

As an approved higher education provider, ECA is eligible to receive certain grants made under the Act and its students are eligible to receive certain financial assistance from the Commonwealth. 

An approval of a higher education provider given under subsection 16-25(1) is exempt from sunsetting under item 33 in the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. It is not appropriate to subject approvals given under subsection 16-25(1) to sunsetting as stringent statutory review processes under the Act currently apply to approvals of higher education providers, and approvals are able to be revoked for a number of reasons under the Act. Division 22 of the Act provides circumstances where a higher education provider’s approval will be revoked, for example, see section 22-15 which provides that the Minister for Education may revoke a higher education provider’s approval if that provider breaches any conditions on its approval or the quality and accountability requirements in Division 19 of the Act.

Human rights implications

The Instrument engages the right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Right to education

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, ECA 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 both ECA and its students promote the right to education by enabling students and prospective students to access financial assistance to assist them to undertake courses of study based on capacity, rather than on financial means.

Conclusion

The Instrument is compatible with human rights because it supports the right to education. 

 

Delegate of the Minister for Education, Damian Coburn

HIGHER EDUCATION SUPPORT (NOTICE OF APPROVAL – ECA HIGHER EDUCATION INSTITUTE PTY LTD) INSTRUMENT 2023

EXPLANATION OF PROVISIONS

Section 1: Name

  1. This section specifies the name of the instrument as the Higher Education Support (Notice of Approval – ECA Higher Education Institute Pty Ltd) Instrument 2023 (the Instrument).

Section 2: Commencement

2.  This section provides that the Instrument commences on the day after it is registered on the Federal Register of Legislation.

Section 3: Authority

3.  This section provides that the Instrument is made under section 16-25 and paragraph 16-50(1)(b) of the Higher Education Support Act 2003 (the Act).

Section 4: Definitions

4.  This section provides the definition of ‘Act’, which is the Higher Education Support Act 2003, because this term is used in the Instrument.

Section 5: Approval of higher education provider

5.  This section provides that, for the purposes of section 16-25 and paragraph 16‑50(1)(b) of the Act, ECA Higher Education Institute Pty Ltd is approved as a higher education provider.

 

 

Overview

The Higher Education Support (Notice of Approval – ECA Higher Education Institute Pty Ltd) Instrument 2023 was enacted to approve ECA Higher Education Institute Pty Ltd as a higher education provider under the Higher Education Support Act 2003. This legislation was introduced to address the need for recognising and supporting private education providers in Australia, ensuring they meet certain standards before being eligible for government grants and allowing their students to receive financial assistance. The Instrument was issued under the authority of a delegate of the Minister for Education and is a legislative instrument as defined under the Act. The primary objective of this legislation is to ensure that approved higher education providers, such as ECA, can offer courses and services that meet national standards, thereby promoting equitable access to higher education and supporting students financially. The Instrument facilitates the Minister's approval of ECA as a higher education provider, ensuring compliance with the criteria set out in the Higher Education Support Act 2003. Once approved, ECA becomes eligible to receive certain grants, and its students can access financial assistance, fostering an inclusive educational environment. The approval process includes stringent statutory review mechanisms to maintain the quality and accountability of higher education providers, with potential for revocation if conditions or quality requirements are breached. This legislative framework ensures that the right to education is upheld, in line with international obligations under the International Covenant on Economic, Social and Cultural Rights.

Scope and Application

The Higher Education Support (Notice of Approval – ECA Higher Education Institute Pty Ltd) Instrument 2023 is a legislative instrument issued under the Higher Education Support Act 2003 to approve ECA Higher Education Institute Pty Ltd (ECA) as a higher education provider. This approval allows ECA to receive certain grants and enables its students to be eligible for certain financial assistance from the Commonwealth. The approval process involves the Minister for Education or a delegate satisfying that ECA meets the criteria set out in subsection 16-25(1) of the Act, which pertain to the suitability and capability of the entity to function as a higher education provider. The approval granted under subsection 16-25(1) is exempt from sunsetting provisions and is subject to stringent statutory review processes and potential revocation if ECA breaches conditions or quality and accountability requirements outlined in Division 19 and Division 22 of the Act. The Instrument does not entail significant regulatory impact and does not require a regulation impact statement. It is compatible with human rights, particularly engaging the right to education as articulated in Article 13 of the International Covenant on Economic, Social and Cultural Rights. The Instrument officially commences on the day following its registration on the Federal Register of Legislation.

Key Provisions

The main operative sections of the Higher Education Support (Notice of Approval – ECA Higher Education Institute Pty Ltd) Instrument 2023 involve the approval of ECA Higher Education Institute Pty Ltd as a higher education provider under the Higher Education Support Act 2003 (section 5). This approval enables ECA to receive certain grants and for its students to be eligible for financial assistance from the Commonwealth. The Instrument is grounded in section 16-25 and paragraph 16-50(1)(b) of the Act, which allows the Minister to approve a body corporate as a higher education provider if it satisfies the required criteria. The approval process also involves a legislative instrument under subsection 16-55(1) of the Act, which must notify the applicant in writing of the approval decision. The obligations and requirements imposed by this Act on the parties it governs include satisfying the criteria set out in subsection 16-25(1) for suitability and ability to be an approved higher education provider. The delegate of the Minister must be satisfied that ECA meets these criteria. Additionally, the Act mandates stringent statutory review processes and conditions under which an approval can be revoked, such as breaches of approval conditions or quality and accountability requirements (section 22-15). The approval given under subsection 16-25(1) is exempt from sunsetting, although it can still be subject to revocation under specific circumstances detailed in Division 22 of the Act. Offences and penalties for breaches of the Act include the revocation of approval if conditions are violated or if quality and accountability requirements are not met. Such breaches can lead to the Minister revoking the approval of the higher education provider, which can have significant implications for the institution's eligibility for grants and for its students' eligibility for financial assistance. The Instrument is also designed to ensure compatibility with human rights, particularly the right to education as outlined in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This compatibility is achieved by facilitating access to education and financial assistance for students based on capacity rather than financial means. The Instrument thus serves to support the right to education by enabling ECA and its students to benefit from government support mechanisms.

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Education Law
Instrument
Instrument
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Definitions & Interpretation
Approval & Notification
Human Rights Compatibility

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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.