EXPLANATORY STATEMENT

Issued by the Authority of the Delegate for the Minister for Education and Training

Higher Education Support Act 2003

Higher Education Support (Parapharm Pty Ltd)

Higher Education Provider Approval Revocation 2018

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 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 must be revoked by the Minister in certain circumstances set out in Subdivision 22-AA of the Act. Subsection 22-2(1) of the Act provides that the Minister must revoke a body’s approval as a higher education provider if:

• the body is no longer a registered higher education provider (within the meaning in the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act)); and
• in a case where the Tertiary Education Quality and Standards Agency (TEQSA) has made either of the following decisions under the TEQSA Act, the decision has not been set aside or quashed, and is no longer subject to review:
  • a decision under section 36 of that Act to refuse an application to renew the body’s registration under Part 3 of that Act;
  • a decision under section 101 of that Act to cancel the body’s registration under Part 3 of that Act.

Subsection 22-2(2) of the Act provides that the Minister must notify the body in writing of the revocation. Subsection 22-2(3) provides that such a notice of revocation is a legislative instrument.

Under paragraph 238-5(1)(b) of the Act, the Minister has delegated his powers under section 22-2 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 Parapharm Pty Ltd of the revocation of its approval as a higher education provider, pursuant to subdivision 22-AA, section 22-2 of the Act; and

(b)      to repeal the original notice of approval of Parapharm Pty Ltd as a higher education provider. Notices of approval under paragraph 16-50(1)(b) are legislative instruments for the purposes of the Act.

Background

Section 16-27 of the Act provides that the Minister must not approve a body corporate as a higher education provider under section 16-25 of the Act unless the body is a ‘registered higher education provider’. A ‘registered higher education provider’ is a higher education provider

registered by TEQSA under Part 3 of the TEQSA Act and listed by TEQSA on the National Register of Higher Education Providers.

TEQSA cancelled the registration of Parapharm Pty Ltd (ACN: 098564099, ABN: 45098564099) as a higher education provider, effective as of 14 November 2018. This was a result of Parapharm Pty Ltd being placed into voluntary administration on 3 October 2018.

TEQSA’s decision was based on being satisfied that all higher education operations had ceased at Parapharm Pty Ltd.

Parapharm Pty Ltd (ACN: 098564099, ABN: 45098564099) was approved by the Minister’s delegate as a higher education provider on 27 March 2014.

Subsection 22-2(1) of the Act provides that the Minister must revoke a body’s approval as a ‘higher education provider’ if the body is no longer a ‘registered higher education provider’, and a decision under the TEQSA Act to refuse an application to renew the body’s registration or to cancel the body’s registration, has not been set aside or quashed, and is no longer subject to review. Pursuant to subsection 22-2(2) of the Act, the Instrument notifies Parapharm Pty Ltd in writing of the revocation of its approval in accordance with subsection 22-2(1) of the Act.

Consultation

The TEQSA National Register confirms that Parapharm Pty Ltd has ceased to be registered as a higher education provider, and any decisions by TEQSA to refuse an application to renew its registration or to cancel its registration, had not been set aside or quashed, and were no longer subject to review. Further, the department’s records show that Parapharm Pty Ltd is no longer providing higher education to students. No students will be affected by the Instrument and Parapharm Pty Ltd is the only higher education provider affected by the Instrument. Therefore, in these circumstances, it was not considered nescessay to undertake any consultation.

Procedural Fairness

The procedural fairness requirements in subdivision 22-C of HESA do not apply to the Minister’s obligations to revoke approval in the circumstances provided for under subdivision 22-AA. 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Higher Education Support (Parapharm Pty Ltd) Higher Education Provider Approval Revocation 2018

The legislative instrument (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

Subsection 22-2(1) of the Higher Education Support Act 2003 (the Act) provides that the Minister must revoke a body’s approval as a higher education provider if:

• the body is no longer a registered higher education provider (within the meaning in the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act)); and
• in a case where the Tertiary Education Quality and Standards Agency (TEQSA) has made either of the following decisions under the TEQSA Act, the decision has not been set aside or quashed, and is no longer subject to review:
  • a decision under section 36 of that Act to refuse an application to renew the body’s registration under Part 3 of that Act;
  • a decision under section 101 of that Act to cancel the body’s registration under Part 3 of that Act.

Subsection 22-2(2) of the Act provides that the Minister must notify the body in writing of the revocation. Subsection 22-2(3) provides that such a notice of revocation is a legislative instrument.

The purpose of the Instrument is:

• to provide notice to Parapharm Pty Ltd of the revocation of its approval as a higher education provider pursuant to section 22-2 of the Act; and
• to repeal the notice of approval of Parapharm Pty Ltd as a higher education provider.

Human rights implications

The Instrument engages, but does not limit the right to education, contained in Article 13 of the International Covenant on Economic, Social, and Cultural Rights. Article 13 recognises the right of everyone to education, which is directed towards the full development of the human personality and the sense of its dignity and to enable all persons to participate effectively in society.

The Instrument engages the right to education to the extent that may affect the provision of higher education by Parapharm Pty Ltd as it revokes its approval as a higher education provider for the purposes of FEE-HELP under the Act thereby removing their ability to offer FEE-HELP assistance to students.

As Parapharm Pty Ltd has ceased providing higher education to students and has activated its tuition assurance scheme, no students will be disadvantaged as a result of this revocation.

Conclusion

This Instrument is compatible with human rights as it does not raise any human rights issues.

Drew Menzies-McVey

Delegate of the Minister

Details of the Higher Education Support (Parapharm Pty Ltd) Higher Education Provider Approval Revocation 2018

Section 1 - Name

This section provides that the name of the Instrument is the Higher Education Support (Parapharm Pty Ltd) Higher Education Provider Approval Revocation 2018.

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 subsection 22-2(2) of the Act.

Section 3 - Authority

This section provides that the authority for the Instrument is section 22-2 of the Act.

Section 4 - Definitions

This section provides a definition for the Act as it is used in the Instrument. A note clarifies that the term higher education provider has the same meaning as given in the Act.

Section 5 - Notice of Revocation of Approval as a Higher Education Provider

This section notifies Parapharm Pty Ltd of the revocation of its approval as a higher education provider.