Commonwealth Numbered Acts

HIGHER EDUCATION SUPPORT AMENDMENT (FURTHER STREAMLINING AND OTHER MEASURES) ACT 2013 (NO. 23, 2013) - SCHEDULE 3

Part 1 -- Amendments

Higher Education Support Act 2003

1  Subsection 19-1(1)

Omit "(1)".

2  Subsection 19-1(2)

Repeal the subsection.

3  Subsection 19-65(1)

Repeal the subsection, substitute:

             (1)  A higher education provider must comply with:

                     (a)  this Act and the regulations; and

                     (b)  the Guidelines made under section 238-10 that apply to the provider; and

                     (c)  a condition imposed on the provider's approval as a higher education provider.

4  At the end of Subdivision 19-E

Add:

19-82   Compliance notices

Grounds for giving a compliance notice

             (1)  The Minister may give a higher education provider a written notice (a compliance notice ) in accordance with this section if the Minister is satisfied that the provider has not complied with, or is aware of information that suggests that the provider may not comply with, one or more of the following:

                     (a)  this Act or the regulations;

                     (b)  the Guidelines made under section 238-10 that apply to the provider;

                     (c)  a condition imposed on the provider's approval as a higher education provider.

Content of compliance notice

             (2)  The compliance notice must:

                     (a)  set out the name of the provider to which the notice is given; and

                     (b)  set out brief details of the non-compliance or possible non-compliance; and

                     (c)  specify action that the provider must take, or refrain from taking, in order to address the non-compliance or possible non-compliance; and

                     (d)  specify a reasonable period within which the provider must take, or refrain from taking, the specified action; and

                     (e)  if the Minister considers it appropriate--specify a reasonable period within which the provider must provide the Minister with evidence that the provider has taken, or refrained from taking, the specified action; and

                      (f)  in any case--state that a failure to comply with the notice is a breach of a * quality and accountability requirement which may lead to the provider's approval as a higher education provider being suspended or revoked; and

                     (g)  in any case--set out any other matters specified in the Higher Education Provider Guidelines for the purposes of this paragraph.

Matters that Minister must consider in giving compliance notice

             (3)  In deciding whether to give the compliance notice, the Minister must consider all of the following matters:

                     (a)  whether the non-compliance or possible non-compliance is of a minor or major nature;

                     (b)  the period for which the provider has been approved as a higher education provider;

                     (c)  the provider's history of compliance with:

                              (i)  this Act and the regulations; and

                             (ii)  the Guidelines made under section 238-10 that apply to the provider; and

                            (iii)  any conditions imposed on the provider's approval as a higher education provider;

                     (d)  the impact of the higher education provider's non-compliance or possible non-compliance, and of the proposed compliance notice, on:

                              (i)  the provider's students; and

                             (ii)  the provision of higher education generally;

                     (e)  the public interest;

                      (f)  any other matter specified in the Higher Education Provider Guidelines for the purposes of this paragraph.

Higher Education provider to comply with compliance notice

             (4)  A higher education provider must comply with a compliance notice given to the provider under this section.

Note:          A failure to comply with a compliance notice is a breach of a quality and accountability requirement which may lead to the provider's approval as a higher education provider being suspended or revoked (see sections 22-15 and 22-30).

Variation and revocation of compliance notice

             (5)  The Minister may, by written notice given to the higher education provider, vary or revoke a compliance notice if, at the time of the variation or revocation, the Minister considers that taking such action is in the public interest.

Note:          A variation could, for example, specify different action to be taken by the provider or a different period for complying with the notice.

             (6)  In deciding whether to vary or revoke the compliance notice, the Minister must consider any submissions that are received from the higher education provider before the end of the period mentioned in paragraph (2)(d).

Compliance notice not required before suspending or revoking approval

             (7)  To avoid doubt, the Minister need not give a compliance notice under this section before suspending or revoking the provider's approval as a higher education provider in accordance with Division 22.

5  Subparagraph 11(2)(b)(ii) of Schedule 1A

Omit "13(1)(a)", substitute "13(a)".

6  Subclause 13(1) of Schedule 1A

Omit "(1)".

7  Subclause 13(2) of Schedule 1A

Repeal the subclause.

8  After subclause 17(1) of Schedule 1A

Insert:

          (1A)  To avoid doubt, subclause (1) covers the quality of all of a * VET provider's operations.

9  Before clause 24 of Schedule 1A

Insert:

23A   Basic requirement

                   A * VET provider must comply with:

                     (a)  this Act and the regulations; and

                     (b)  * VET Guidelines that apply to the provider; and

                     (c)  a condition imposed on the provider's approval as a VET provider.

10  At the end of Subdivision 4-E of Schedule 1A

Add:

26A   Compliance notices

Grounds for giving a compliance notice

             (1)  The Minister may give a * VET provider a written notice (a compliance notice ) in accordance with this clause if the Minister is satisfied that the provider has not complied with, or is aware of information that suggests that the provider may not comply with, one or more of the following:

                     (a)  this Act or the regulations;

                     (b)  * VET Guidelines that apply to the provider;

                     (c)  a condition imposed on the provider's approval as a VET provider.

Content of compliance notice

             (2)  The compliance notice must:

                     (a)  set out the name of the provider to which the notice is given; and

                     (b)  set out brief details of the non-compliance or possible non-compliance; and

                     (c)  specify action that the provider must take, or refrain from taking, in order to address the non-compliance or possible non-compliance; and

                     (d)  specify a reasonable period within which the provider must take, or refrain from taking, the specified action; and

                     (e)  if the Minister considers it appropriate--specify a reasonable period within which the provider must provide the Minister with evidence that the provider has taken, or refrained from taking, the specified action; and

                      (f)  in any case--state that a failure to comply with the notice is a breach of a * VET quality and accountability requirement which may lead to the provider's approval as a * VET provider being suspended or revoked; and

                     (g)  in any case--set out any other matters specified in the * VET Guidelines for the purposes of this paragraph.

Matters that Minister must consider in giving compliance notice

             (3)  In deciding whether to give the compliance notice, the Minister must consider all of the following matters:

                     (a)  whether the non-compliance or possible non-compliance is of a minor or major nature;

                     (b)  the period for which the provider has been approved as a * VET provider;

                     (c)  the provider's history of compliance with:

                              (i)  this Act and the regulations; and

                             (ii)  the * VET Guidelines that apply to the provider; and

                            (iii)  any conditions imposed on the provider's approval as a VET provider;

                     (d)  the impact of the VET provider's non-compliance or possible non-compliance, and of the proposed compliance notice, on:

                              (i)  the VET provider's students; and

                             (ii)  the provision of vocational education and training generally;

                     (e)  the public interest;

                      (f)  any other matter specified in the VET Guidelines for the purposes of this paragraph.

VET provider to comply with compliance notice

             (4)  A * VET provider must comply with a compliance notice given to the provider under this clause.

Note:          A failure to comply with a compliance notice is a breach of a VET quality and accountability requirement which may lead to the provider's approval as a VET provider being suspended or revoked (see clauses 33 and 36).

Variation and revocation of compliance notice

             (5)  The Minister may, by written notice given to the * VET provider, vary or revoke a compliance notice if, at the time of the variation or revocation, the Minister considers that taking such action is in the public interest.

Note:          A variation could, for example, specify different action to be taken by the provider or a different period for complying with the notice.

             (6)  In deciding whether to vary or revoke the compliance notice, the Minister must consider any submissions that are received from the * VET provider before the end of the period mentioned in paragraph (2)(d).

Compliance notice not required before suspending or revoking approval

             (7)  To avoid doubt, the Minister need not give a compliance notice under this clause before suspending or revoking the * VET provider's approval as a VET provider in accordance with Division 5 of this Schedule.

11  Subclause 1(1) of Schedule 1 (definition of VET quality and accountability requirements )

Omit "means the meaning given by subclause 13(1)", substitute "has the meaning given by clause 13".

Part 2 -- Application of amendments

12  Application of amendments--general

The amendments made by this Schedule apply in relation to a higher education provider or a VET provider approved before, on or after the commencement of this item.

13  Application of amendments--complying with approval conditions

The amendments made by this Schedule apply in relation to a condition imposed on or after the commencement of this item on an approval of a higher education provider or a VET provider.

14  Application of amendments--compliance notices

Section 19-82 of the Higher Education Support Act 2003, as in force on and after the commencement of this item, and clause 26A of Schedule 1A to that Act, apply in relation to a compliance notice given on or after that commencement, even if the act or omission alleged to give rise to the notice occurred before that commencement.