COMMONWEALTH OF AUSTRALIA
Higher Education Support Act 2003
SPECIFIED MATTERS TO BE TAKEN INTO ACCOUNT FOR DECIDING WHETHER A PERSON IS FIT AND PROPER FOR THE PURPOSES OF SUBSECTION 16-25 (3) OF, AND SUBCLAUSE 6(3) OF SCHEDULE 1A TO,
THE HIGHER EDUCATION SUPPORT ACT 2003
I, Chris Evans, Minister for Tertiary Education, Skills, Science and Research pursuant to subsection 16-25(4) of, and subclause 6(4) of Schedule 1A to, the Act specify the matters set out in this instrument as those to be taken into account for the purposes of subsection 16-25(3) of, and subclause 6(3) of Schedule 1A to, the Act, respectively.
Dated this 9th day of March 2012
SIGNED
_____________________________
CHRIS EVANS
Minister for Tertiary Education, Skills, Science and Research
1 Citation
This legislative instrument may be cited as the Fit and Proper Person Specified Matters 2012.
2 Authority
These Fit and Proper Person Specified Matters are made under subsection 16‑25(4) of, and subclause 6(4) of Schedule 1A to, the Act.
3 Commencement
This legislative instrument commences on the day after registration on the Federal Register of Legislative Instruments.
4 Application
The requirements of this legislative instrument apply in respect of all bodies corporate seeking approval as a provider under section 16-25 of the Act or under clause 6 of Schedule 1A to the Act.
5 Definitions
5.1 In this legislative instrument, unless the contrary intention appears:
Act means the Higher Education Support Act 2003
National Register has the meaning given by clause 1 of Schedule 1 to the Act
National VET Regulator has the meaning given by clause 1 of Schedule 1 to the Act
Officer of a corporation has the meaning given by section 9 of the Corporations Act 2001
registered training organisation has the meaning given by clause 1 of Schedule 1 to the Act
VET Regulator has the meaning given by section 3 of the National Vocational Education and Training Regulator Act 2011
Fit and Proper Person Requirements
6.1 Criteria of suitability for approval
In assessing whether a body corporate, who is:
(a) an applicant for approval as a higher education provider; or
(b) an applicant for approval as a VET provider,
under the Act, or
each person who makes, or participates in making, decisions that affect the whole or a substantial part, of the body corporate’s affairs is a fit and proper person, the Minister must have regard to the following matters:
Matters in relation to a body corporate
(a) whether the body corporate has ever had a condition imposed on its approval as a higher education provider or VET provider; and
(b) whether the body corporate has ever breached a condition of approval as a higher education provider or a VET provider; and
(c) whether the body corporate has ever breached a requirement under Division 19 of the Act or Division 4 of Schedule 1A to the Act; and
(d) whether the body corporate has been suspended or has ceased to be a higher education provider under Division 22 of the Act or a VET provider under Division 5 of Schedule 1A to the Act; and
(e) whether the body corporate has ever become insolvent, applied to take the benefit of a law for the benefit of insolvent debtors, or entered arrangements with its creditors; and
(f) whether the body corporate has ever provided the Minister with false or misleading information or made a false or misleading statement to the Minister, and whether the body corporate could have reasonably known that the statement made or information provided to the Minister was false or misleading; and
(g) whether the body corporate has ever been found not to be a fit and proper person for the purposes of the Education Services for Overseas Students Act 2000, the National Vocational Education and Training Regulator Act 2011, the Tertiary Education Quality and Standards Agency Act 2011, the Act or by a VET Regulator; and
(h) any other relevant matter relating to the body corporate’s business dealings.
Matters in relation to a person who makes, or participates in making decisions that affect the whole, or a substantial part of the body’s affairs.
(i) whether the person has ever become bankrupt, applied to take the benefit of a law for the benefit of bankrupt or insolvent debtors, compounded with his or her creditors or assigned his or her remuneration for the benefit of creditors; or
(j) whether the person has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001; and
(k) whether the person has previously been involved with a higher education provider, who had a condition imposed, breached a condition or breached a requirement under Division 19, or a VET provider who had a condition imposed, breached a condition or breached a requirement under Division 4 of Schedule 1A to the Act; and
(l) whether the person has previously been involved with a higher education provider, who has had their approval revoked under Division 22 of the Act, or a VET provider who has had their approval revoked under Division 5 of Schedule 1A to the Act; and
(m) whether the person has ever provided the Minister with false or misleading information or made a false or misleading statement to the Minister, and whether the person could have reasonable known that the statement made or information provided to the Minister was false or misleading; and
(n) whether the person has ever been found not to be a fit and proper person for the purposes of the Education Services for Overseas Students Act 2000, the National Vocational Education and Training Regulator Act 2011 or the Tertiary Education Quality and Standards Agency Act 2011, the Act or by a VET Regulator; and
(o) any other relevant matter relating to the person’s honesty, knowledge and ability.
6.2 Persons subject to Fit and Proper Person Requirements
For the purposes of paragraph 6.1(i) to 6.1(o) a person includes an officer of a corporation as defined in paragraph 5.1 of this Instrument.
