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

Administered by Department of Education

Legislation au F2024L01198 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 – Polytechnic Institute Australia 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 – Polytechnic Institute Australia Pty Ltd) Instrument 2023 (the Instrument) is to approve Polytechnic Institute Australia Pty Ltd (Polytechnic Institute Australia) as a higher education provider for the purposes of the Act and notify Polytechnic Institute Australia 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 Polytechnic Institute Australia satisfies all applicable criteria in subsection 16-25(1).

As an approved higher education provider, Polytechnic Institute Australia 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.

IMPACT ANALYSIS

The Office of Impact Analysis has advised that the Instrument is unlikely to have more than a minor regulatory impact and therefore an Impact Analysis is not required for this Instrument (OIA reference 02827).

COMMENCEMENT

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

CONSULTATION

The department undertook consultation with Polytechnic Institute Australia to assist the delegate of the Minister when deciding whether to approve the body as a higher education provider. This consultation informed the delegate’s ultimate decision to approve Polytechnic Institute Australia. A public consultation was not undertaken or considered necessary as Polytechnic Institute Australia 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 – Polytechnic Institute Australia Pty Ltd) Instrument 2023

The Higher Education Support (Notice of Approval – Polytechnic Institute Australia 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 Polytechnic Institute Australia Pty Ltd (Polytechnic Institute Australia) as a higher education provider for the purposes of the Higher Education Support Act 2003 (the Act) and notify Polytechnic Institute Australia 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 Polytechnic Institute Australia satisfies all applicable criteria in subsection 16-25(1).

As an approved higher education provider, Polytechnic Institute Australia 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, Polytechnic Institute Australia 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 Polytechnic Institute Australia 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, Annette Cannell

 

 


HIGHER EDUCATION SUPPORT (NOTICE OF APPROVAL – POLYTECHNIC INSTITUTE AUSTRALIA 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 – Polytechnic Institute Australia Pty Ltd) Instrument 2023 (the Instrument).

Section 2: Commencement

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

Section 3: Authority

  1.   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

  1.   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

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

 

 

Overview

The Higher Education Support (Notice of Approval – Polytechnic Institute Australia Pty Ltd) Instrument 2023, enacted by a delegate of the Minister for Education, addresses the need to approve Polytechnic Institute Australia Pty Ltd as a higher education provider under the Higher Education Support Act 2003. This approval process is essential for enabling the institution to receive specific grants and for its students to be eligible for certain financial assistance from the Commonwealth. The enactment body, a delegate of the Minister, ensures that Polytechnic Institute Australia meets all the statutory criteria for higher education providers, as outlined in the Act, thereby facilitating its operation as a legitimate educational institution. The policy objective is to support educational access and quality by recognising institutions that meet the required standards and can offer educational opportunities on a sustainable basis. In accordance with the Act, the approval process involves stringent criteria assessment and statutory review mechanisms to ensure that Polytechnic Institute Australia’s approval is both justified and subject to ongoing quality oversight. This legislative instrument not only formalises the approval but also ensures compliance with human rights principles, particularly the right to education as articulated in international covenants, thereby promoting equitable access to higher education for all eligible students.

Scope and Application

The Higher Education Support (Notice of Approval – Polytechnic Institute Australia Pty Ltd) Instrument 2023 serves to approve Polytechnic Institute Australia Pty Ltd as a higher education provider under the Higher Education Support Act 2003. This approval is subject to the entity satisfying specific criteria outlined in subsection 16-25(1) of the Act, which pertain to its suitability and ability to operate as an approved higher education provider. The Instrument, which is a legislative instrument under subsection 16-55(1) of the Act, notifies Polytechnic Institute Australia of its approval status. As an approved provider, Polytechnic Institute Australia becomes eligible to receive certain grants under the Act and its students can access financial assistance from the Commonwealth. Notably, this approval is exempt from sunsetting provisions as stringent statutory review processes and grounds for revocation are already established within the Act, particularly under Division 22. The Instrument applies specifically to Polytechnic Institute Australia Pty Ltd, ensuring its recognition as a higher education provider within the framework of the Act. Its geographic reach is aligned with the national scope of the Higher Education Support Act 2003, which operates across the Commonwealth of Australia. The approval is granted based on the delegate's determination that Polytechnic Institute Australia meets all relevant criteria. The Instrument does not specify any exclusions or exemptions, and its application is confined to the approval of Polytechnic Institute Australia as a higher education provider, without extension to other entities or broader educational sectors.

Key Provisions

The Higher Education Support (Notice of Approval – Polytechnic Institute Australia Pty Ltd) Instrument 2023 (the Instrument) primarily functions to approve Polytechnic Institute Australia Pty Ltd as a higher education provider under the Higher Education Support Act 2003 (the Act). Section 4 of the Instrument formally grants this approval, making Polytechnic Institute Australia eligible to receive certain grants and enabling its students to be eligible for financial assistance from the Commonwealth (section 4). This approval is contingent upon the satisfaction of all criteria outlined in subsection 16-25(1) of the Act, which pertains to the suitability and capability of the body corporate to operate as an approved higher education provider. The delegate of the Minister for Education has determined that Polytechnic Institute Australia meets these criteria (section 4). Under the Act, Polytechnic Institute Australia, as an approved higher education provider, must adhere to a range of obligations and requirements. These include compliance with stringent statutory review processes and the potential for revocation of its approval if it breaches any conditions on its approval or fails to meet the quality and accountability requirements outlined in Division 19 of the Act. The approval is exempt from sunsetting under item 33 in the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015, but it remains subject to revocation under section 22-15 of the Act (section 4). The Instrument also delineates the consequences for non-compliance with the terms of the approval. Any breach by Polytechnic Institute Australia of the conditions on its approval or the quality and accountability requirements can lead to the revocation of its approval as a higher education provider (section 22-15). Such revocation would terminate its eligibility for grants and prevent its students from accessing financial assistance. Additionally, while the Instrument itself does not specify particular offences or penalties, breaches of the Act's provisions can result in significant administrative and financial penalties as outlined in other sections of the Act. The severity of these penalties depends on the nature and extent of the breach, but they may include fines and other civil or criminal sanctions.

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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.