EXPLANATORY STATEMENT

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

Higher Education Support Act 2003

Higher Education Support (University College London)

Higher Education Provider Approval Revocation 2020

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 University College London (UCL) 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 UCL as a higher education provider.

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.

UCL (ABN: 54 728 710 374) was approved as a higher education provider on 1 January 2010 after it was included in Table C in section 16-22 of HESA through the passing of the Higher Education Support Amendment (University College London) Act 2010.

UCL withdrew its registration as a higher education provider with TEQSA effective as of 22 January 2020.

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 UCL 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 UCL 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 UCL is no longer providing higher education to students. No students will be affected by the Instrument and UCL is the only higher education provider affected by the Instrument. Therefore, in these circumstances, it was not considered necessary 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 (University College London) Higher Education Provider Approval Revocation 2020

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:

(a)       to provide notice to University College London (UCL) of the revocation of its approval as a higher education provider pursuant to section 22-2 of the Act; and

(b)      to repeal the original notice of approval of UCL 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 UCL 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.

In 2015 UCL publicly announced its intent for the gradual closure of its Australian branch and that it would continue to teach current students to the end of their enrolment. From 2018, UCL has had no enrolled students across its campuses in Adelaide. As UCL is not currently delivering courses to students and does not intend to resume the delivery of courses in Australia, this Instrument is compatible with the right to education. 

Conclusion

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

Damian Coburn

Delegate of the Minister

Details of the Higher Education Support (University College London) Higher Education Provider Approval Revocation 2020

Section 1 - Name

This section provides that the name of the Instrument is the Higher Education Support (University College London) Higher Education Provider Approval Revocation 2020.

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 University College London of the revocation of its approval as a higher education provider.