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2002-2003
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
HIGHER EDUCATION SUPPORT BILL
2003
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Education, Science and Training the Hon Dr
Brendan Nelson MP)
HIGHER EDUCATION SUPPORT BILL
2003
The Bill establishes a comprehensive framework for the Commonwealth
funding of higher education. This funding framework will replace the
arrangements of the Higher Education Funding Act 1988.
The Bill
provides for the Commonwealth to give financial support for higher
education:
(a) through grants and other payments principally made to higher
education providers; and
(b) through financial assistance to students
(usually in the form of loans).
The Bill provides for the approval of
incorporated bodies as higher education providers by the Minister. Higher
education providers must be willing and able to meet certain quality and
accountability requirements. These requirements concern financial viability,
quality, fairness to students, arrangements for student contributions and
tuition fees and general compliance matters.
The Bill establishes the
Commonwealth Grants Scheme, the major source of funding for higher education in
Australia. The scheme provides funding for student places at certain higher
education institutions. Amounts of grants are based largely on the Commonwealth
supported places that the Minister allocates to each provider and the
Commonwealth contribution amount for each such place. The amount of grant may
be adjusted based on the actual number of places delivered by a higher education
provider in the previous year and the funding rate for those places. Higher
education providers receiving funds under the Commonwealth Grants Scheme must
have a Funding Agreement with the Commonwealth. The Bill outlines a range of
conditions of grant, in particular conditions concerning the students who may
access a Commonwealth supported place funded through the Commonwealth Grant
Scheme.
The Bill provides for a range of other grants for particular
purposes such as to promote equality of opportunity in higher education, to
enhance learning and teaching in higher education, to support research and the
research capability of higher education providers and to support the training of
research students. It provides for grants to certain higher education providers
for the provision of scholarships to students.
The Bill provides for
certain persons to have a Student Learning Entitlement. An eligible person
initially has a Student Learning Entitlement equivalent to 5 years of full-time
study. This is reduced as the person undertakes units of study as a
Commonwealth supported student (but it can be re-credited in some
circumstances). The Bill also provides for a person to obtain amounts of
additional Student Learning Entitlement in certain circumstances.
The
Bill provides for 3 kinds of HELP assistance to students in the form of loans
from the Commonwealth. HECS-HELP provides assistance to meet a student’s
liability to pay student contribution amounts for units of study that are
Commonwealth supported. This assistance is only available for units of study
that are covered by the person’s Student Learning Entitlement. FEE-HELP
provides assistance to meet a student’s liability to pay tuition fees for
units of study that are not Commonwealth supported. OS-HELP may provide
assistance to a student who undertakes study at an overseas higher education
institution as part of his or her course of study. The Commonwealth pays
student assistance to the relevant higher education provider to discharge the
student’s liability in the case of HECS-HELP assistance or FEE-HELP
assistance and for payments to students on the Commonwealth’s behalf in
the case of OS-HELP assistance.
The Bill sets out how debts are incurred
and worked out in relation to the loans made under the various forms of HELP
assistance. It provides for the repayment of these debts. Each loan is
incorporated into either the person’s accumulated HECS-HELP debt or
accumulated FEE-HELP/OS-HELP debt, depending on the form of assistance under
Chapter 3 to which the loan relates. The accumulated debts can be repaid in 2
ways. A person may make voluntary repayments which may attract a repayment
bonus. A person may be required to make compulsory repayments which are based
on the person’s income and collected using the system for payment of
income tax.
The Bill provides for several administrative matters relating
to the operation of this Act. These include the manner in which payments may be
made by the Commonwealth, the indexation of grants, the reconsideration and
review of certain decisions, the administrative requirements that are imposed on
higher education providers and provisions concerning electronic communications
and tax file numbers. The Bill also creates an offence for failing to protect
personal information.
The Bill provides for approval of persons (other
than natural persons) as self-accrediting entities in the external Territories
and for the accreditation of courses of study that non-self-accrediting entities
propose to offer in the external Territories. Persons who are not accredited
may be guilty of an offence if they operate as a university or other provider,
offer higher education awards or describe themselves as universities in an
external Territory.
Total funding levels for the higher education sector over the 2004-2007
calendar years under the Bill are estimated to be around $14.4 billion (2004
prices). The total funds appropriated under the bill represent an additional
$1.4 billion (2004 prices) beyond the Government’s current commitments to
the sector over that period.
HIGHER EDUCATION SUPPORT BILL
2003
Chapter
1-Introduction
The purpose of this Chapter is to set out the
introductory material for the Bill. It deals with such matters as the short
title, commencement and identification of defined terms in the Act (Division 1),
the objects of the Bill (Division 2) and an overview of the Act (Division
3).
Division 1 -
Preliminary
Clause 1-1 - Short title
Provides for the
Act to be cited as the Higher Education Support Act
2003.
Clause 1-5 - Commencement
Inserts a three
column table setting out commencement information for various provisions in the
Act. Each provision of the Act specified in column 1 of the table commences (or
is taken to have commenced) in accordance with column 2 of the table and any
other statement in column 2 has effect according to its terms.
The table
provides for sections 1 and 2 of the Act to commence on the day on which it
receives the Royal Assent and for other provisions to commence on the days set
out in column 2 of the table.
Subclause 1-5(2) provides that column 3 of
the table is for additional information which may be added to or edited in any
published version of the Act but that information in this column is not part of
the Act.
Clause 1-10 - Identifying defined
terms
Describes where various expressions used in the Bill are
defined and explains how asterisks are used to signpost certain defined terms.
Most of the terms in the Bill are defined in the Dictionary at Schedule 1 while
a table in subclause 1-10(6) lists four terms that are defined in the sections
in which they appear.
*Note: The clauses in the Bill will become
sections of the Act on Royal assent. In this Explanatory Memorandum only the
first reference to a clause or subclause uses that terminology. Subsequent
references use the terms “section” or “subsection” as
appropriate.
Clause 1-15 Application of Chapter 6
Provides that Chapter 6 and any regulation made for the purpose of
that Chapter extend to every external
Territory
Division 2 -
Objects
Clause 2-1 Objects of this Act
Clause 2-1 sets
out the object of the Act to provide a general overview of what this Bill is
about. The objects of the Act are:
Division - 3 - Overview of this
Act
Clause 3-1 General
The
Act primarily provides for the Commonwealth to give financial support for higher
education through grants and other payments made largely to higher education
providers and through financial assistance to students (usually in the form of
loans).
Clause 3-5 Grants for higher
education assistance (Chapter 2)
Chapter 2 sets out who are higher
education providers, and provides for the following grants and
payments:
• grants under the Commonwealth Grant
Scheme;
• other grants for particular purposes;
• grants for
Commonwealth scholarships.
Clause 3-10
Assistance to students (Chapter 3)
Chapter 3 provides for the
following assistance to students:
• HECS-HELP assistance for student
contribution amounts;
• FEE-HELP assistance for tuition
fees;
• OS-HELP assistance for overseas study.
Chapter 3 also
provides for the Student Learning
Entitlement.
Clause 3-15 Repayment of
loans (Chapter 4)
Chapter 4 sets out how debts are incurred and
worked out in relation to loans made under Chapter 3 and provides for their
repayment.
Clause 3-20 Administration
(Chapter 5)
Chapter 5 provides for several administrative matters
relating to the operation of this
Act.
Clause 3-25 Provision of higher
education in the external Territories (Chapter 6)
Chapter 6 primarily
provides for approval of persons (other than natural persons) as self
accrediting providers and accreditation of courses of study in external
Territories.
Division – 8 -
Introduction
Clause 8-1 What this Chapter is
about
Generally, grants and payments under this Act are made to
higher education providers. Bodies have to be approved as higher education
providers. Higher education providers must comply with the quality and
accountability requirements (see Part 2-1). Grants are payable under Part 2-2
(Commonwealth Grant Scheme) to certain higher education providers. Amounts of
grants are based largely on the Commonwealth supported places that the Minister
allocates to each provider. Grants are made subject to conditions. Other
grants and payments are made under Part 2-3 to higher education providers and
other bodies for a variety of purposes. Payments for Commonwealth scholarships
are made to certain higher education providers under Part 2-4. If a body
breaches a condition of a grant made to the body or a quality and accountability
requirement, the body may be liable to:
• revocation of its approval as
a higher education provider under Part 2-1; or
• a reduction in the
amount of a grant paid to the body under Part 2-5; or
• repay to the
Commonwealth an amount of a grant under Part 2-5.
Part 2-1 -
Higher education providers
Division 13
- Introduction
Clause 13-1 What this Part is about
A
body generally has to be approved as a higher education provider before it can
receive grants, or its students can receive assistance, under this Act. Listed
providers have that approval upon commencement of this Act. Bodies that do not
have that automatic approval, or whose approval has been revoked, have to apply
for approval. Higher education providers are subject to the quality and
accountability requirements. A body’s approval as a higher education
provider may be revoked in certain circumstances.
Clause 13-5 The
Higher Education Provider Guidelines
Notes that higher education
providers and their quality and accountability requirements are also dealt with
in the Higher Education Provider Guidelines made by the Minister under section
238-10. The provisions of Part 2-1 indicate when a particular matter is
or may be dealt with in these Guidelines.
Division 16 - What is a
higher education provider?
Subdivision 16-A -
General
Clause 16-1 Meaning of higher education
provider
Defines a higher education provider as a
body corporate that is approved under Division 16 of Part
2-1.
Clause 16-5 When a body becomes or ceases to be a higher
education provider
Subclause 16-5(1) provides that a listed provider
under section 16-10 is taken to be approved as a higher education provider from
the commencement of the Act.
Subclause 16-5(2) provides that a body
corporate that is not a listed provider or is a listed provider that has
previously ceased to be a higher education provider becomes a provider if
approved by the Minister under section 16-25.
Subclause 16-5(3) provides
that a higher education provider ceases to be a provider if the provider’s
approval is revoked or suspended under Division
22.
Subdivision 16-B - Which bodies
are listed providers?
Clause 16-10 Listed
providers
Subclause 16-10 provides that a Table A provider and a
Table B provider are listed providers for the purposes of the Act.
Clauses 16-15 and 16-20 set out the Table A and Table B providers respectively
and provide that a body cannot be a Table A or Table B provider if its approval
as a higher education provider is revoked or
suspended.
Subdivision 16-C—How are bodies approved as
higher education providers?
Clause 16-25 Approval by the
Minister
Subclause 16-25(1) has the effect of providing that the
Minister may, in writing, approve a body corporate as a higher education
provider if the body established under the law of the Commonwealth, a State or
Territory, carries on business in Australia, has its central management and
control in Australia and is either a university, or a self-accrediting provider
or a non self-accrediting provider that either fulfils the tuition assurance
requirements under subsection 16-30(2) or is exempted from these requirements
under subsection 16-30(2). The body corporate must also apply for approval in
the form and manner provided for in section 16-40 and satisfy the Minister that
it is willing and able to meet the quality and accountability requirements set
out in Division 19. If the body corporate is a non self-accrediting provider,
it must meet the additional requirements in section 16-35.
Subclauses
16-25(2), (3) and (4) define a university, a
self-accrediting provider and a non self-accrediting
provider respectively.
Clause 16-30 The tuition assurance
requirements
Subclause 16-30(1) defines the tuition assurance
requirements on the date of an application by a body corporate as a
higher education provider under section 16-40 while subclause 16-40(2) provides
that the Minister may, in writing, exempt a body corporate from the requirements
for tuition assurance.
Clause 16-35
Additional requirements for non self-accrediting providers
Has the
effect of providing that the additional requirements for a non self-accrediting
provider in relation to an application as a higher education provider under
section 16-40 are that the body is in a State or Territory that the Minister is
satisfied has legislation that complies with the National Protocols and offers
at least one course of study that leads to a higher education award and that
course is accredited by a State or Territory under National Protocol
3.
Clause 16-40 Application
Provides that a body
corporate may apply in writing to the Minister for approval as a higher
education provider and that the application must be in a form approved by the
Minister and must be accompanied by such information as the Minister
requests.
Clause 16-45 Minister may
seek further information
Provides that, for the purposes of
determining an application by a body corporate for approval as a higher
education provider the Minister may, by notice in writing, require the applicant
to provide such further information as the Minister directs within the period
specified in the notice. If the applicant does not comply with such a
requirement the application is taken to have been withdrawn. A notice under
this section must include a statement about the consequences of
non-compliance.
Clause 16-50 Minister
to decide application
Subclause 16-50(1) provides that the Minister
must decide an application for approval as a higher education provider and cause
the applicant to be notified in writing whether or not the applicant is approved
as a higher education provider.
Subclause 16-50(2) provides that, for the
purposes of paragraph 16-25(f), the Minister may be satisfied that a body
corporate is willing and able to meet the quality and accountability
requirements if the body gives the Minister such written undertakings as the
Minister requires.
Subclause 16-50(3) provides that the Minister’s
decision must be made within 90 days after receiving the application or, if
further information is requested under section 16-45, within 60 days after the
end of the period within which the information was required to be provided under
that section, whichever is the later.
Subclause 16-50(4) provides that,
if the Minister decides that an applicant is approved as a higher education
provider, the notice under this section must also contain such information as is
specified in the Higher Education Provider Guidelines as information that must
be provided to an applicant upon approval as a higher education
provider.
Division 19 - What are the
quality and accountability
requirements?
Subdivision 19-A -
General
Clause 19-1 The quality
and accountability requirements
Lists the five quality and
accountability requirements as the financial viability requirements (see
Subdivision 19-B), the quality requirements (see Subdivision 19-C), the fairness
requirements (see Subdivision 19-D), the compliance requirements (see
Subdivision 19-E) and the contribution and fee requirements (see Subdivision
19-F). Also clarifies that Division 19 does not of its own force require a
higher education provider to do any act or
thing.
Subdivision 19-B - The
financial viability
requirements
Clause 19-5 Basic
requirement
Provides that a higher education provider must be
financially viable and be likely to remain financially
viable.
Clause 19-10 Financial
information must be provided
Has the effect of providing that a
higher education provider must give to the Minister a financial statement for
each annual financial reporting period in which the provider receives assistance
under Chapter 2 or a student of the provider receives assistance under Chapter
3. The statement must be in the form approved by the Minister, must be provided
together with a report on the statement by a qualified auditor and must be
provided within 4 months after the end of the annual financial reporting period
for which the statement was given. An annual financial reporting
period for a higher education provider is the period of 12 months to
which the provider’s accounts relate that is notified in writing to the
Minister as the provider’s annual financial reporting
period.
Subdivision 19-C - The
quality requirements
Clause 19-15
Provider must maintain quality
Has the effect of providing that a
higher education provider must operate, and continue to operate, at an
appropriate level of quality for an Australian higher education
provider.
Clause 19-20 Provider to
comply with National Protocols
Provides that a higher education
provider must be assessed as meeting the relevant protocols in the National
Protocols by an authorised accreditation authority listed on the Australian
Qualifications Framework Register (the AQF Register), and comply with a
requirement imposed on the provider by an authorised accreditation authority
listed on the AQF Register and a requirement imposed on the provider by the
Minister in writing to implement a specified recommendation of a quality
auditing body.
Clause 19-25 Quality
assurance
Subclause 19-25(1) provides that a higher education
provider must agree in writing to be audited by quality auditing
body.
Subclause 19-25(2) provides that, after a request from a quality
auditing body to audit the provider, the provider must allow the audit to start
within the time agreed to by the body and provider, fully co-operate with the
auditing body in the course of its audit and pay to the auditing body any
charges identified as payable for any such audit.
Subclause 19-25(3)
provides that the provider’s agreement under paragraph 19-25(2)(a) must be
given within one month after the auditing body notifies the provider that the
auditing body wants to audit the
provider.
Subdivision 19-D - The
fairness requirements
Clause 19-30
Basic requirement
Provides that a higher education provider must
treat all of its students and all of the persons seeking to enrol with the
provider fairly.
Clause 19-35 Benefits
and opportunities must be available equally to all students
Subclause
19-35(1) provides that a higher education provider that receives assistance
under the Chapter in respect of a student, or a class of students, must
ensure that the benefits of, and the opportunities created by, the assistance
are made equally available to all such students, or students in such class, in
respect of whom that assistance is payable.
Subclause 19-35(2) provides
that a higher education provider who receives a grant or allocation under
Chapter 2 or OS-HELP assistance, must have open, fair and transparent procedures
based on merit for making decisions about the selection of students who are to
benefit from the grant allocation or payment.
Subclause 19-35(3) provides
that subsection 19-35(2) does not prevent a higher education provider taking
into account educational disadvantages that a particular student has experienced
in making such decisions about the selection of students for
assistance.
Clause 19-40 Compliance
with the tuition assurance requirements
Subclause 19-40(1) provides
that a higher education provider, [other than a Table A provider or a body
declared under subsection 19-40(2)] must comply with the tuition assurance
requirements.
Subclause 19-40(2) provides that the Minister may, by
declaration in writing, exempt a specified higher education provider from the
requirement in subsection
19-40(1).
Clause 19-45 Student
grievance and review procedures
Subclause 19-45(1) provides that a
higher education provider must have a grievance procedure dealing with
complaints by the provider’s students relating to academic
matters and a review procedure for dealing with review of decisions made by the
provider under Chapter 3.
Subclause 19-45(2) provides that a grievance
procedure for dealing with complaints by the provider’s
students and persons who seek to enrol in courses of study with the provider
relating to non-academic matters must comply with the requirements of the Higher
Education Provider Guidelines.
Subclause 19-45(3) provides that the
review procedure must comply with the requirements of the Higher Education
Provider Guidelines.
Subclause 19-45(4) provides that the Higher
Education Provider Guidelines may provide for procedures to be followed by
review officers.
Subclauses 19-45(5) to (7) have the effect of providing
that the provider must comply with its grievance and appeal procedures, publish
and make publicly available up to date information setting out the procedures
and publish information about any other complaint mechanisms available to
complain about provider
decisions.
Clause 19-50 Higher
education providers to appoint review officers
Provides that a higher
education provider must have a review officer to undertake reviews of decisions
made by the provider relating to assistance under Chapter 3. A review
officer of a higher education provider is defined as a person (or a
person included in a class of persons) who the chief executive officer of the
provider or his/her delegate has appointed to be a review officer for the
purposes of reviewing decisions made by the provider relating to assistance
under Chapter 3.
Clause 19-55 Review officer not to review
own decision
Provides that a higher education provider must ensure
that a review officer of the provider does not review a decision that he/she was
involved in making and that, in reviewing a decision of the provider, a review
officer occupies a position that is senior to that occupied by any person
involved in making the original
decision.
Clause 19-60 Higher education
provider to provide access to student information to student
Provides
that a higher education provider must comply with the information privacy
principles set out in section 14 of the Privacy Act 1988 in respect of
information obtained for the purposes of the administration of Chapters 3 or 4.
A higher education provider must also have a procedure in place under which a
student may apply to the provider for, and receive a copy of all of the
information the provider holds in relation to that student. The provider must
comply with the requirements of the Higher Education Provider Guidelines and
these procedures.
Subdivision 19-E -
The compliance requirements
Clause
19-65 Basic requirements
Provides that a higher education provider
must comply with the requirements of this Act, the regulations and the
Guidelines made under section 238-10. In addition, a higher education provider
must provide information to the Minister in relation to the affairs of the
provider in accordance with the requirements of the Act and a higher education
provider’s administrative arrangements must support the provision of
assistance under the Act.
Clause 19-70
Provider to provide statement of general information
Provides that a
higher education provider must give the Minister such statistical and other
information that the Minister by notice in writing requires from
the provider in respect of the provision of higher education by the
provider and the compliance by the provider with the requirements of the Act.
The information must be provided in a form approved by the Minister and in
accordance with such other requirements as the Minister
makes.
Clause 19-75 Notice of events
that affect provider’s ability to comply with conditions of Commonwealth
assistance
Provides that a higher education provider must inform the
Minister in writing of any event affecting the provider (or related body
corporate of the provider) that may affect the provider’s capacity to meet
the conditions of grants under this Chapter or the quality and accountability
requirements.
Clause 19-80 Provider to provide access to
Departmental Officers etc.
Providers that the Secretary may determine
in writing access arrangements in respect of a higher education provider for
access by APS employees or other persons engaged to perform services for or on
behalf of the Commonwealth (such employees or other persons being authorised in
writing by the Secretary under subsection 19-80(3) to premises or records of the
provider for the purposes of conducting audit and compliance activities related
to this Act.
Subdivision 19-F -
What are the contribution and fee requirements?
Clause
19-85 Basic Requirements
Provides that a higher education provider
must charge students contribution amounts and tuition fees for each unit of
study in which it enrols students in accordance with the requirements of the
Act.
Clause 19-90 Determining student
contribution amounts and tuition fees
Subclause 19-90(1) provides
that a higher education provider must, for each year, determine the student
contribution amount per place for each unit of study that it provides or
proposes to provide during the year and in relation to which it may, under its
funding agreement under section 30-25 in respect of the year, enrol students as
Commonwealth supported students.
Subclause 19-90(2) provides that for
each year a higher education provider must determine one (and only one) tuition
fee for each unit of study that it provides or proposes to provide during the
year .
Subclause 19-90(3) provides that if a unit of study can form part
of more than one course of study, the provider may determine under subsection
19-95(2) a different tuition fee for the unit for each such course of
study.
Clause 19-95 Schedules of
student contribution amounts per place and tuition fees
Subclause
19-95(1) provides that a higher education provider must give the Minister a
schedule of the student contribution amounts per place and tuition fees for all
the units of study it provides or proposes to provide during the year. It must
give the schedule in a form approved by the Minister and in accordance with the
requirements that the Minister determines.
Subclause 19-95(2) provides
that the provider must ensure that the schedule provides sufficient information
to enable a person to work out the student contribution amount and the tuition
fee for each unit of study that the provider provides or is to provide, that the
provider publishes the schedule and ensures that the schedule is available to
all students enrolled (and persons seeking to enrol) with the provider on
request and without charge.
Clause 19-100 Limits on tuition fees
for courses of study
Provides that a higher education provider must
not charge a tuition fee for a course of study that exceeds the sum of all the
tuition fees it charges for all of the units of study undertaken as part of the
course.
Clause 19-105 Meaning of tuition
fee
Subclause 19-105(1) defines a tuition fee as including
any tuition, examination or other fee payable to a higher education provider by
a person enrolled with, or applying for enrolment with, the
provider.
Subclause 19-105(2) provides that a tuition fee may also
include any fee payable to the provider in respect of the granting of a higher
education award.
Subclause 19-105(3) provides that a tuition fee does not
include a fee that is:
• payable in respect of an organisation of
students, or of students and other persons; or
• payable in respect of
the provision to students of amenities or services that are not of an academic
nature; or
• payable in respect of residential accommodation;
or
• imposed in accordance with guidelines issued by the Minister for
the imposition of fees in respect of overseas students and students who are New
Zealand citizens because of the operation of section 29 of the Citizenship
Act 1977 of New Zealand; or
• payable in respect of studies (other
than an enabling course) that are not permitted to be undertaken for the purpose
of obtaining a higher education award; or
• determined, in accordance
with guidelines issued by the Minister, to be a fee of a kind that is incidental
to studies that may be undertaken with a higher education provider and meets the
criteria specified in the Commonwealth Grant Scheme Guidelines; or
• a
student contribution amount.
Division
22 - When does a body cease to be a higher education
provider?
Subdivision 22-A -
General
Clause 22-1 Cessation of
approval as a provider
Provides that a body ceases to be approved as
a higher education provider if the approval is revoked under Subdivision 22-B or
22-D or while the approval is suspended under section
22-30.
Subdivision 22-B - Revocation
for cause.
Clause 22-5 Revocation of approval if
application for approval as a provider is false or
misleading
Provides that the Minister may revoke a body’s
approval as a higher education provider if the Minister is satisfied that the
application for approval contained material that was false or misleading. The
Minister must comply with the requirements of section
22-20.
Clause 22-10 Revocation of
approval as a provider if body ceases to be a university etc.
Has the
effect of providing that the Minister must revoke a body’s approval as a
higher education provider if the body was a university, a self-accrediting
provider or a non self-accrediting provider the last time the body became a
higher education provider and since that time the body has ceased to be a
university, a self-accrediting provider or a non self-accrediting
provider.
Clause 22-15 Revocation of
approval as a provider for a breach of conditions or the quality and
accountability requirements
Subclause 22-15(1) provides that the
Minister may revoke a body’s approval as a higher education provider if
the Minister is satisfied that the body has either breached a condition of a
grant made to the body under Part 2-2, 2-3 or 2-4 or breached a quality and
accountability requirement and the Minister is satisfied that it is appropriate
to take that action (see subsection 22-15(2)). In revoking a body’s
approval as a higher education provider under this section the Minister must
comply with the requirements of section 22-20.
Subclause 22-15(2)
provides that, without limiting the matters that the Minister may consider in
deciding whether it is appropriate under section 22-15 to revoke a body’s
approval as a higher education provider, the Minister may consider any or all of
the following matters:
• whether the breach in question is of a minor
or major nature;
• whether the breach has occurred before and, if so,
how often;
• the impact that the breach may have on the body’s
students;
• the impact of the breach on the higher education provided
by the body;
• Australia’s reputation as a provider of high
quality higher education; and
• any other matter set out in the Higher
Education Provider
Guidelines.
Subdivision 22-C -
Process for decision on revocation under Subdivision
22-B
Clause 22-20 Process for
revoking approval as a provider for loss of status or a
breach
Subclause 22-20(1) provides that before revoking a
body’s approval as a higher education provider under Subdivision 22-B, the
Minister must give the body notice in writing stating that the Minister is
considering revoking the body’s approval, the reasons why the Minister is
considering revoking the body’s approval, inviting the body to make
written submissions to the Minister within 28 days as to why the approval should
not be revoked.
Subclause 22-20(2) provides that, in deciding whether or
not to revoke a body’s approval under Subdivision 22-B, the Minister must
consider any submissions received from the body within the 28 day
period.
Subclause 22-20(3) provides that the Minister must notify the
body in writing of his or her decision on the revocation of the body’s
approval as a higher education provider under Subdivision 22-B. The notice must
be in writing, must be given within the period of 28 days following the period
in which submissions may have been given to the Minister under subsection
22-20(1) and must specify the day that the revocation takes
effect.
Subclause 22-20(4) provides that, if no notice is given within
the period provided for in subsection 22-20(3), the Minister is taken to have
decided not to revoke the approval.
Subclause 22-20(5) provides that a
revocation takes effect on the day specified in the notice under subsection
22-20(3) and a copy of the notice must be published in the
Gazette.
Clause 22-25 Determination retaining approval as
a provider in respect of existing students
Subclause 22-25(1)
provides that the Minister may determine that a revocation of a body’s
approval as a higher education provider under Subdivision 22-B is of no effect
for the purposes of grants to the body under Chapter 2 and assistance payable to
the body’s students under Chapter 3 to the extent that the grants or
assistance relate to students who have not completed their course of study on
the day specified for the revocation to take effect.
Subclause 22-25(2)
provides that the determination may be included in the notice of
revocation.
Subclause 22-25(3) provides that the body is taken for the
purposes of the Act to continue to be a higher education provider to the extent
set out in subsection 22-25(1). .
Subclause 22-25(4) provides that
subsection 22-25(3) does not prevent the Minister subsequently making a
determination to revoke the body’s approval as a higher education provider
under Division 22.
Clause 22-30
Suspension of approval as a provider
Provides that the Minister may
determine in writing that, with effect from a specified day, a body’s
approval as a higher education provider is suspended pending the making of a
decision under Subdivision 22-B as to whether to revoke the body’s
approval as a provider. A copy of the determination must be given to the body
concerned. A determination under this section takes effect on the day specified
in the determination and ceases to have effect if the Minister decides not to
revoke the body’s approval as a higher education
provider.
Clause 22-35 Disallowance of
revocation
Provides that a notice of revocation under sub-section
22-30(3) is a disallowable instrument and that if a notice of revocation under
subsection 22-20(3) is disallowed, the notice is taken never to have been
given.
Subdivision 22-D - Revocation
of approval on application
Clause
22-40 Revocation of approval as a provider on application
Provides
that the Minister may revoke the approval of a body as a higher education
provider if the body requests the Minister in writing to do so. The request
must be given to the Minister at least 30 days before the day on which
the revocation is requested to have effect. The Minister must cause the body to
be notified of the revocation and the notice must be in writing and be given to
the body at least 14 days before the day on which the revocation is to take
effect. The revocation has effect on the day requested unless another day is
specified in the notice under subsection
22-40(3).
Part 2-2 -
Commonwealth Grant
Scheme
Division 27 -
Introduction
Clause 27-1 What this
Part is about
Grants are payable under this Part to higher education
providers that meet certain requirements. Amounts of grants are based largely
on the number of Commonwealth supported places that the Minister allocates to
each provider. Grants are subject to several conditions relating to the
provision of Commonwealth supported places and other matters. The amount of the
grant may be reduced or some or all of a grant may be repayable if a condition
is breached (see Part 2-5).
Clause 27-5
The Commonwealth Grant Scheme Guidelines
Notes that the grants
payable under this Part are also dealt with in the Commonwealth Grant Scheme
Guidelines made by the Minister under section 238-10 and that the provisions of
this Part indicate when a particular matter is or may be dealt with in those
guidelines.
Division 30 - Which
higher education providers are eligible for a
grant?
Subdivision 30-A - Basic
rules
Clause 30-1 Eligibility for
grants
Provides that a grant under this Part is payable to a higher
education provider (as a benefit to students) in respect of the year 2005 of a
later year if the provider is a Table A provider or a higher education provider
specified in the Commonwealth Grant Scheme Guidelines as a higher education
provider that can be paid grants under this Part and the Minister has allocated
a number of Commonwealth supported places to the provider for that year under
section Clause 30-10 and the provider has entered into a funding agreement with
the Commonwealth under section 30-25. However, a grant is payable to a higher
education provider that is not a Table A provider only if the grant relates only
to national priorities.
Clause 30-5
Maximum grants
Subclause 30-5(1) provides that the Minister must
ensure that the total amounts of all grants payable under this Part in respect
of a year, as a result of all the allocations to higher education providers for
that year under section 30-10, does not exceed $3,086,242,00 for the year
2005, or $3,215,263,000 for the year 2006 or $3,342,701,000 for the year
2007. For the purposes of subsection 30-5(1), regard must be had to any
adjustments under section 33-20 to amounts for the
year.
Subdivision 30-B - Allocation
of places
Clause 30-10 Allocation
of places
Subclauses 30-10(1) and (2) provide that before the
commencement of a year, the Minister may allocate a specified number of
Commonwealth supported places to a higher education provider for that year and
that the allocation must specify the distribution of those places between the
funding clusters.
Subclause 30-10(3) provides that the allocation may
also specify the number of those places that have a regional loading and the
number of those places that have a medical student loading.
Subclause
30-10(4) provides that if the provider is not a Table A provider the allocation
must specify that it is only in respect of national priorities and must also
specify the number of places for each national priority for which the provider
is allocated places.
Clause 30-15
Funding clusters
Subclause 30-15(1) lists the funding
clusters for the purposes of the Act. Subclause 30-15(2) provides that
the Commonwealth Grant Scheme Guidelines may delete, vary or add to the funding
clusters.
Clause 30-20 National
priorities
Defines a national priority as a particular
outcome that relates to the provision of higher education and is an outcome
specified in the Commonwealth Grant Scheme Guidelines as a national
priority.
Subdivision 30-C - Funding
agreements
Clause 30-25 Funding
agreements
Subclauses 30-25(1) and (2) provide that the Secretary
may, on behalf of the Commonwealth, enter into a funding agreement with a higher
education provider relating to a grant under this Part in respect of a year (the
grant year) and that the agreement may specify conditions to which
the grant is subject, that are additional to the conditions that apply under
Division 36. Section 36-65 makes it a condition of the grant that the provider
comply with the agreement.
Subclause 30-25(3) provides that, without
limiting subsection 30-25(2), the agreement may specify the minimum number of
Commonwealth supported places that the provider must provide in the grant year,
or the maximum number of Commonwealth supported places that the provider may
provide in the grant year, or both in relation to one or more of the
following:
• places in courses of study at the undergraduate
level;
• places in courses of study at the postgraduate non-research
level;
• places in courses of study in medical
programs;
• places in courses of study in enabling courses;
The
agreement may also specify:
• the maximum number of Commonwealth
supported places provided by the provider which can have a regional
loading in the grant year;
• the maximum number of Commonwealth
supported places provided by the provider which can have a medical
student loading in the grant year;
• the maximum amount of regional
loading that will be payable to the provider, under the Commonwealth Grant
Scheme Guidelines, in the grant year;
• the undergraduate and
postgraduate courses in which the provider may provide Commonwealth supported
places;
• restrictions on the type of undergraduate and postgraduate
courses in which the provider may provide Commonwealth supported
places;
• adjustments that will apply to the amount of a grant payable
to the provider under this Part if the provider breaches a condition of the
grant;
Division 33 - How are grant
amounts worked out?
Subdivision 33-A
- Basic rules
Clause 33-1 How
grant amount is worked out
Provides that the amount of a grant
payable to a higher education provider under this Part for a year is worked out
by calculating the basic grant amount for the provider for that year under
Subdivision 33-B and if applicable, adjusting the basic grant amount under
Subdivision 33-C. Advances may also be paid to a higher education provider
under Subdivision 33-D.
Subdivision
33-B - Basic grant amounts
Clause
33-5 Basic grant amounts
Provides that the basic grant
amount for a higher education provider for a year is the sum
of:
• for each funding cluster to which the Minister has allocated
places to the provider under section 30-10 - the amount worked out by
multiplying the number of Commonwealth supported places allocated in relation to
that funding cluster by the Commonwealth contribution amount for a place in that
funding cluster; and
• if the allocation has specified under paragraph
30-10(3)(a) a number of Commonwealth supported places that have a regional
loading - the amount of regional loading worked out under the Commonwealth Grant
Scheme Guidelines for those places; and
• if the allocation has
specified under paragraph 30-10(3)(b) a number of Commonwealth supported places
that have a medical student loading - the amount of medical student loading
worked out under the Commonwealth Grant Scheme Guidelines for those
places.
Clause 33-10 Commonwealth
contribution amounts
Sets out a table listing the Commonwealth
contribution amount for a place in a funding
cluster.
Clause 33-15 Increases in
assistance for higher education providers meeting certain
requirements
Subclause 33-15(1) provides that a higher education
provider’s basic grant amount for a year is increased under section
33-15 if the Commonwealth Grant Scheme Guidelines impose on higher
education providers either or both, requirements to be known as the National
Governance Protocols or requirements based on the workplace relations policies
of the Australian Government and the Minister is satisfied that the provider met
those requirements as at a date, specified in the Commonwealth Grant Scheme
Guidelines, in the year preceding that year.
Subclause 33-15(2)
provides that if subsection 33-15(1) applies to a higher education provider in
relation to a year, the provider’s basic grant amount for the year is
worked out as if the Commonwealth contribution amount for each funding cluster
were increased by 2.5% if the grant year is the year 2005, 5% if the grant year
is the year 2006 and 7.5% if the grant year is a later
year.
Subdivision 33-C -
Adjustments
Clause 33-20
Adjustments in accordance with guidelines
Provides that a higher
education provider’s basic grant amount for a year (the grant
year) is to be adjusted, in respect of the preceding year, in the
circumstances specified in the Commonwealth Grant Scheme Guidelines and that the
Commonwealth Grant Scheme Guidelines must specify, in relation to each of the
adjustments:
• whether the adjustment is to be an increase or a
reduction in the provider’s basic grant amount for the grant year;
and
• the amount of the adjustment, or how the adjustment is to be
worked out.
Clause 33-25 Adjustments
that apply in the absence of guidelines
Subclause 33-25(1) provides
that a higher education provider’s basic grant amount for the grant year
is reduced by an adjustment if the Commonwealth Grant Scheme Guidelines neither
provide for an adjustment when the number of Commonwealth supported places
provided by a higher education provider during the preceding year exceeds a
number specified in (or worked out under) those guidelines or, provide that
there is to be no adjustment in those circumstances and in the preceding year
the number of Commonwealth supported places provided by the provider exceed 105%
of the total number of Commonwealth supported places allocated to the provider
for that year under section 30-10.
Subclause 33-25(2) provides that the
adjustment under subsection 33-25(1) is an amount worked out using the
formula:
The term excess places is
defined as the number of Commonwealth supported places that the provider
provided during the preceding year in excess of 105% of the total number of
Commonwealth supported places allocated to the provider, while the term
greatest possible student contribution is defined as the highest
student contribution amount payable to the provider for a unit of study
undertaken with the provider during the preceding year.
Subclause
33-25(3) provides that a higher education provider’s basic grant amount
for the grant year is reduced by an adjustment if the Commonwealth Grant Scheme
Guidelines neither provide for an adjustment when the provider’s basic
grant amount for the preceding year exceeds the provider’s corrected basic
amount for that year or provide that there is to be no adjustment in these
circumstances and the provider’s basic grant amount for the preceding year
exceeded the provider’s corrected basic amount for that
year.
Subclause 33-25(4) provides that the adjustment under subsection
33-25(3) is an amount equal to the difference between the basic grant amount and
the corrected basic amount.
Subclause 33-25(5) defines a provider’s
corrected basic amount for a year as the amount that would have
been the provider’s basic grant amount for the year if the number of
Commonwealth supported places allocated to the provider for that year under
section 33-10 had equalled the number of Commonwealth supported places provided
by the provider during that year and the places allocated had been distributed
under subsection 30-10(2) between the funding clusters in a way that reflected
the units of study in which Commonwealth supported students were enrolled with
the provider during that year and the funding clusters in which those units are
included.
Subclause 33-25(6) provides that no adjustments are to be made
to basic grant amounts under section 33-25 for the year
2005.
Clause 33-30 Working out the
number of Commonwealth supported places provided
Subclause 33-30(1)
defines how to calculate the number of Commonwealth supported
places that a higher education provider has provided during a particular
year. This is calculated by taking, for each unit of study (other than a unit
of study that wholly consists of work experience in industry) that the provider
provided that had its census date during the year, the sum of the EFTSL value of
the unit and multiplying it by the number of persons enrolled with the provider
in that unit as Commonwealth supported students.
Subclause 33-30(2)
provides that for the purposes of section33-30 if a unit of study provided by
the provider forms part of more than one course of study and the provider
determines [under subsection 73-15(2)] an EFTSL value of the unit for each such
course, then the unit is taken to be a different unit of study in respect of
each such course.
Clause 33-35 Funding
clusters in which units of study are included
Provides that the
Commonwealth Grant Scheme Guidelines may specify how to determine, for the
purposes of this Act, the funding clusters in which units of study are included
or the particular funding cluster in which a particular unit of study is
included.
Subdivision 33-D - Special
purpose advances
Clause 33-40
Advances for certain purposes
Subclause 33-40(1) provides that the
Minister may determine an advance is payable to a higher education provider in
respect of a year in relation to expenditure of the provider, for such purposes
as the Minister determines.
Subclause 33-40(2) provides that the Minister
may pay an advance to the provider under subsection 33-40(1) on such conditions
(if any) as the Minister determines.
Subclause 33-40(3) provides that the
total of the advances in respect of a year must not exceed the amount set out in
section 30-5 in respect of the following year.
Subclause 33-40(4)
provides that if the Minister determines an advance for the provider in respect
of a year, the amounts of grant payable to the provider under section 33-1 in
respect of either the following year, the following 2 years, or the following 3
years are reduced by amounts that equal in total the amount of the
advance.
Subclause 33-40(5) provides that determinations under
subsections 33-40(1) and (2) and reductions under subsection 33-40(4) must be
made in accordance with Commonwealth Grant Scheme
Guidelines.
Division 36 - What are the
conditions of receiving a
grant?
Subdivision 36-A -
General
Clause 36-1 Condition of
grant to comply with this Division
Subclause 36-1(1) provides that a
higher education provider receives a grant under Part 2-2 on condition that the
provider complies with Division 36.
Subclause 36-1(2) provides that,
without limiting subsection 36-1(1), the provisions of Division 36 do not of
their own force require the provider to do any act or
thing.
Subdivision 36-B - Conditions
relating to Commonwealth supported
students
Clause 36-5 Meaning of
Commonwealth supported student
Provides that a person is a
Commonwealth supported student in relation to a unit of study if
he/she is advised in writing by the higher education provider with which he/she
is enrolled in that unit that he/she is a Commonwealth supported student in
relation to the unit. However, the person is not a Commonwealth supported
student in relation to the unit if he/she advises the provider in writing on or
before the census date for his or her enrolment in the unit that he/she does not
wish to be a Commonwealth supported student in relation to the
unit.
Clause 36-10 Advice on whether a
person is a Commonwealth supported student
Subclause 36-10(1)
provides that a higher education provider must not advise a person that he/she
is a Commonwealth supported student in relation to a unit of study
unless:
• the provider has been allocated Australian supported in the
relevant year; and
• the unit contributes to the requirements of a
course of study in which the person is enrolled with the provider;
and
• the person is an Australian citizen, a citizen of New Zealand who
will be resident within Australia for the duration of the unit or a permanent
visa holder who will be resident within Australia for the duration of the unit;
and
• the unit is covered by the person’s Student Learning
Entitlement or wholly consists of work experience in industry or is undertaken
as part of an enabling course; and
• the person enrols in the unit on
or before the census date for the unit.
Subclause 36-10(2) provides that,
in determining whether a person will be resident within Australia for the
duration of the unit of study, any period of residence outside Australia must be
disregarded if it cannot reasonably be regarded as indicating an intention to
reside outside Australia for the duration of the unit or it is required for the
purpose of completing a requirement of that unit.
Subclause 36-10(3)
provides that a higher education provider must not advise a person that he/she
is a Commonwealth supported student in relation to a unit of study if the person
has notified the provider that he/she does not wish to be a Commonwealth
supported student in relation to the unit.
Subclause 36-10(4) provides
that a notice under subclause 36-1(3) must be in writing and given on before the
census date of the unit.
Subclause 36-10(5) provides that a higher
education provider that is not a Table A provider must not advise a person that
he/she is a Commonwealth supported student in relation to a unit of study unless
the unit in which the person is enrolled is within a national priority, the
provider has received a grant under Part 2-2 for that national priority for the
year in which the person is undertaking the unit and if the national priority is
a course of study that has been specified in the Commonwealth Grant Scheme
Guidelines to be a national priority, the unit is contributing to the
requirements of that course.
Subclause
36-10(6) provides that a higher education provider must not advise a person that
he/she is a Commonwealth supported student in relation to a unit of study that
wholly consists of work experience in industry unless the unit forms part of a
course of study and the person is enrolled (or has previously been enrolled) in
another unit of study in that course that does not (or did not) wholly consist
of work experience in industry and in relation to which the person is (or was) a
Commonwealth supported student.
Clause 36-15 Persons not to be
advised they are Commonwealth supported
Provides that a higher
education provider must not advise a person enrolled in a unit of study with the
provider that the person is a Commonwealth supported student in relation to the
unit if the enrolment is an employer reserved enrolment or the unit forms part
of a bridging course for overseas trained
professionals.
Clause 36-20 Providers
to repay amounts if Student learning Entitlements is
re-credited
Provides that if a person’s Student Learning
Entitlement, in relation to a unit of study in which the person was enrolled
with a higher education provider as a Commonwealth supported student has been
re-credited under Division 79, the provider must pay to the person an amount
equal to the payments that the person made in relation to the student
contribution amount for the unit. The provider must pay to the Commonwealth an
amount equal to any HECS HELP assistance to which the person was entitled for
the unit.
Subdivision 36-C -
Conditions relating to
enrolment
Clause 36-25 Continued
support for Commonwealth supported students
Provides that a higher
education provider must advise a person who is enrolled in a unit of study with
the provider, as part of a course of study, that he/she is a Commonwealth
supported student in relation to the unit if the person is or has been a
Commonwealth supported student in relation to one or more other units of study
in the course and the provider is not prohibited under section 36-10 from so
advising the person.
Clause 36-30
Providers to fill Commonwealth supported places before accepting other
enrolments
Subclause 36-30(1) provides that if a person is to be
enrolled with a Table A provider in a unit of study that is covered by the
person’s Student Learning Entitlement the provider must enrol the person
in the unit as a Commonwealth supported student.
Subclause 36-30(2)
provides that subsection 36-30(1) does not apply if the provider has, in respect
of the year in which the person is enrolled in the unit, already filled all of
the number of Commonwealth supported places allocated to the provider for the
year under section 30-10 or the person advises the provider, prior to the census
date for his or her enrolment in the unit, that he/she does not wish to be a
Commonwealth supported student in relation to the unit.
Subclause
36-30(3) provides that if a person is to be enrolled (with a higher education
provider that is not a Table A provider) in a unit of study that is covered by a
person’s Student Learning Entitlement the provider must enrol the person
in the unit as a Commonwealth supported student if completion of the unit is in
furtherance of a national priority and places have been allocated to the
provider under section 30-10 in respect of that national priority for the year
in which the person is enrolled in the unit.
Subclause 36-40(4) provides
that subsection 36-30(3) does not apply if the provider has, in respect of the
year in which the person is enrolled in the unit, already filled all of the
number of Commonwealth supported places in respect of that national priority or
the person advises the provider prior to the census date for his/ her enrolment
in the unit that he/she does not wish to be a Commonwealth supported student in
relation to the unit.
Clause 36-35
Percentage of Commonwealth supported places to be provided by Table A
providers
Subclause 36-35(1) provides that a Table A provider must
ensure that, in any year, the number of Commonwealth supported places provided
by the provider accounts for at least 50% (or such higher percentage as is
specified in the provider’s funding agreement under section 30-25 for that
year) of the total number of places that the provider provides in each course of
study that is not a course of study that the agreement provides is a course in
which the provider must not provide Commonwealth supported places, a course of
study in medicine or at least the percentage, declared by the Minister in
writing, of the total places provided by the provider in each course of study in
medicine.
Subclause 36-35(2) provides that, for the purpose of applying
subsection 36-35(1) in relation to a course of study, any enrolment in work
experience in industry or an employer reserved place in that course of study
must be disregarded.
Subclause 36-35(3) provides that the percentage
declared by the Minister under paragraph 36-35(1)(b) must be at least
50%.
Subclause 36-35(4) provides that a course of study in medicine is a
course of study completion of which would allow for registration as a medical
practitioner by an authority of a State or Territory or the
Commonwealth.
Clause 36-40 Providers to
cancel enrolments in certain circumstances
Subclause 36-40(1)
provides that a higher education provider must cancel a person’s enrolment
in a unit of study with the provider if the person is enrolled as a Commonwealth
supported student in relation to the unit and has not, on or before the census
date for the unit, completed signed and provided to the provider a request for
Commonwealth assistance in relation to the course of study of which the unit
forms a part and given it to the provider.
Subclause 36-40(2) provides
that a higher education provider must cancel a person’s enrolment in a
unit of study with the provider if the person is enrolled as a Commonwealth
supported student in relation to the unit and is not entitled to HECS-HELP
assistance for the unit and has not, on or before the census date for the unit,
paid to the provider the whole of the student contribution amount for the unit.
However, subsection 36-40(2) does not apply if the student contribution amount
for the unit is a nil amount.
Subclause 36-40(3) defines a request
for Commonwealth assistance as a document in which a person enrolling in
a unit of study with a higher education provider requests the Commonwealth to
provide assistance under the Act in relation to the unit, or in relation to the
course of study of which the unit forms a part and is in the form approved by
the Minister and that the person gives to the provider on or before the
person’s enrolment in the unit.
Subdivision 36-D - Conditions
relating to student contribution
amounts
Clause 36-45 Limits on
student contribution amounts
Provides that if a person is enrolled
with a higher education provider in a unit of study as a Commonwealth supported
student the provider must not charge the person a student contribution amount
for the unit that exceeds the amount worked out by multiplying the maximum
amount per place and the EFTSL value of the
unit.
Clause 36-50 Provider must not
accept up-front payments of more than 80% of student contribution
amounts
Provides that a higher education provider must not accept
up-front payments for the unit totalling more than 80% of the student
contribution amount for the unit from a person who is enrolled in a unit of
study with the provider and is entitled to HECS-HELP assistance for the
unit.
Subdivision 36-E - Conditions
relating to tuition fees
Clause
36-55 Tuition fees for non-Commonwealth supported students
Subclause
36-55(1) provides that if a person is enrolled in a unit of study with a higher
education provider and is not a Commonwealth supported student in relation to
the unit, the provider must not charge as tuition fees for the unit amounts that
in total are less than the student contribution amount the provider would charge
the person if the person were a Commonwealth supported student in relation to
the unit or less than such higher amount specified in the CGS
Guidelines.
Subclause 36-55(2) provides that subsection 36-55(1) does not
apply if the person’s enrolment in the unit is in an employer reserved
place. However, the provider must not charge as tuition fees for the unit
amounts where the sum of the tuition fees and the employer contribution amount
for the unit is less than the student contribution amount referred to in
subsection 36-55(1).
Subclause 36-55(3) provides that if a person is
enrolled in study with a higher education provider on a non-award basis and
could have enrolled in that study as a unit of study if the enrolment were not
on a non-award basis, the provider must not charge as tuition fees for the study
amounts that in total are less than the student contribution amount that the
provider would charge the person if the person had enrolled in the study as a
unit of study and the person were a Commonwealth supported student in relation
to the unit.
Subdivision 36-F -
Other conditions
Clause 36-60
Providers to meet the quality and accountability
requirements
Provides that a higher education provider must meet the
quality and accountability
requirements.
Clause 36-65 Providers
to comply with funding agreement
Provides that a higher education
provider must comply with any funding agreement the provider enters into under
section 30-25.
Clause 36-70 Providers
to comply with the Commonwealth Grant Scheme Guidelines
Provides that
the Commonwealth Grant Scheme Guidelines may specify conditions that higher
education providers must comply with for the purposes of Division 36 and that a
higher education provider must comply with all such conditions in respect of any
year for which the provider receives a grant under Part 2-2. However, the
provider need not comply with such a condition during a particular year if the
condition comes into force on or after the day on which the provider entered
into a funding agreement under section 30-25 in respect of the
year.
Part 2-3 - Other grants
Division 41- Other
grants
Clause 41-1 What this Part is
about
Grants that are approved by the Minister under this part are
payable to higher education providers and other eligible bodies for a variety of
purposes.
Clause 41-5 The Other
Grants Guidelines
Provides that other grants also dealt with in the
Other Grants Guidelines made by the Minister under section 238-10. The
provisions of Part 2-3 indicate when a particular matter is or may be dealt with
in these Guidelines.
Clause 41-10
Eligibility for grants under this Part
Subclause 41-10(1) creates a
table of eligibility for grants under Part 2-3 in respect of the year 2005 or a
later year. The table lists 11 grant items (column 1), their purpose (column 2)
and who is eligible for them (column 3). Subclause 41-10(1) goes on to provides
that, subject to subsection 41-10(2), bodies referred to in an item in the third
column of the table are eligible for grants under Part 2-3 for the purposes
specified in the second column for that item.
Subclause 41-10(2) provides
that if the Other Grants Guidelines specify a program under which grants for a
particular purpose specified in the table are to be paid and specify extra
conditions of eligibility to receive a grant under the program, then a body
specified in the table in respect of those grants is not eligible for such a
grant unless it complies with those extra
conditions.
Clause 41-15(1) Grants may
be paid under programs
Subclause 41-15(1) provides that the Other
Grants Guidelines may specify one or more programs under which grants for
particular purposes specified in the table in subsection 41-10(1) are to be
paid.
Subclause 40-15(2) provides that, if the Other Grants Guidelines
specify a program for a grant for a particular purpose, the guidelines may also
specify all or any of the following matters for the program:
• the
program’s objectives;
• the extra conditions of eligibility to
receive a grant under the program;
• the amount, being a part of the
amount referred to in section Clause 41-45 for a year, that will be spent on the
program in that particular year;
• the indexation of that amount for
subsequent years, using the method of indexation set out in Part
5-6;
• the method by which the amount of grants under the program will
be determined;
• whether grants under a program are in respect of a
year or a project;
• the conditions that apply to grants under the
program.
Clause 41-20 Approval of
grants
Provides that the Minister may approve a grant under Part 2-3
in respect of a year or a project to a body corporate that is eligible for such
a grant.
Clause 41-25 Conditions on
grants
Provides that if a grant is made under a program and the Other
Grants Guidelines specified conditions that apply to that program, the grant is
made on those conditions. If a grant is made under a program in respect of
which the Other Grants Guidelines do not provide for conditions, the grant is
made on such conditions (if any) as the Minister determines in writing. If the
body receiving the grant is a higher education provider, the body must also meet
the quality and accountability
requirements.
Clause 41-30 Amount of a
grant
Provides that if the grant is made under a program and the
Other Grants Guidelines specify a method by which the amount of grants under the
program are to be determined, the amount of a grant is the amount determined by
that method. If a grant is made under a program in respect of which the Other
Grants Guidelines do not specify a method by which the amount of grants under
the program are to be determined, the amount of grant is determined in writing
by the Minister.
Clause 41-35 Amounts
payable under this Part
Provides that an amount referred to in
section 41-30 is payable in respect of an year, when a body corporate meets the
requirements of the other Grants Guidelines made for the purposes of sections
41-15 in relation to the programs or the Minister approves under section 41-20 a
grant to a body corporate in respect of that year or
project.
Clause 41-40 Rollover of grant amounts
If a
body corporate that had received a grant in respect of a year under Part 2-3
fails to spend an amount of that grant in that year and the Secretary determines
in writing that this section is to apply to this body corporate, then the
unspent amount of money as specified by the Secretary is taken to be granted to
the body corporate under Part 2-3 for that following year. Also, this amount is
taken to be granted for the same purpose as the original grant, and under the
same conditions as the original grant but for the following year, or under such
other conditions as determined by the
Secretary.
Clause 41-45 Maximum
payments for other grants under this Part
Subclause 41-45(1) creates
a table setting out the maximum payments for other grants under Part 2-3. The
table lists 3 items (column 1), the year (column 2) and the maximum amount
payable (column 3). It provides that the total payments made under Part 2-3 in
respect of a year referred to in the table, must not exceed the amount specified
next to that year in the table.
Subclause 41-45(2) provides that payments
made in respect of a project in a year are taken for the purposes of subsection
41-45(1) to have been made in respect of that
year.
Part 2-4 - Grants for Commonwealth
scholarships
Division 46 - Grants for Commonwealth
Scholarships
Clause 46-1 What this
Part is about
Payments for scholarships are made to higher education
providers who pay the scholarships to students for the purposes of the
students’ education.
Clause 46-5
The Commonwealth Scholarships Guidelines
Notes that Commonwealth
scholarships are also dealt with in the Commonwealth Scholarships Guidelines
made by the Minister under section 238-10. The provisions of Part 2-4 indicate
when a particular matter is or may be dealt with in those
Guidelines.
Clause 46-10 Classes of
Commonwealth scholarships
Provides for 2 classes of Commonwealth
scholarships that are the standard scholarships and the post-graduate research
scholarships. The Commonwealth Scholarship Guidelines set out the types of
scholarships in each class.
Clause
46-15 Who is eligible to receive a payment from the Commonwealth for
Commonwealth scholarships?
Provides that Table A providers and higher
education providers to which subparagraph 30-1(a)(ii) applies are eligible to
receive a payment as a benefit to students from the Commonwealth to pay standard
Commonwealth scholarships to their students. Table A providers and Table B
providers are eligible to receive a payment from the Commonwealth to pay (as a
benefit to students) post-graduate research Commonwealth scholarships to their
students.
Clause 46-20 Other matters
relating to Commonwealth scholarships
Subclause 46-20(1) provides
that the Commonwealth Scholarships Guidelines may provide for Commonwealth
scholarships.
Subclause 46-20(2) provides that, without limiting
subsection 46-20(1), the Commonwealth Scholarship Guidelines may provide for the
following matters:
• the kinds of scholarships that are to be standard
scholarships;
• the kinds of scholarships that are to be post-graduate
research scholarships;
• which students are eligible for each kind of
scholarship;
• the making of decisions as to which students are to
receive scholarships;
• the conditions that apply to each kind of
scholarship;
• how the amounts of payments to a Table A provider or a
Table B provider are to be determined;
• the amount, being part of the
amount referred to in section 46-40 for a year, that will be spent on each kind
of scholarship in that year;
• the indexation of the amount for
subsequent years;
• how payments to Table A providers or a Table B
providers are to be made;
• how providers are to determine the amount
of each scholarship;
• the indexation of amounts of
scholarships;
• how providers are to pay
scholarships.
Clause 46-25 Condition of
grants
Provides that the higher education provider must meet the
quality and accountability requirements for receiving a grant under this
Part.
Clause 46-30 Amounts payable
under this Part
Provides that the amount that is payable under Part
2-4 to a Table A or Table B provider is the amount worked out in accordance with
the Commonwealth Scholarships Guidelines.
Clause 46-35 Rollover
of grant amounts
If a higher education provider who had received a
grant under Part 2-4 in respect of a year fails to spend an amount of that grant
and the Secretary determines in writing that this section is to apply to the
provider, then the unspent amount of money as specified by the Secretary is
taken to be granted to the provider under Part 2-4 for the following year. This
amount is taken to be granted for the same purpose as the original grant and
under the same condition as the original conditions or under such other
conditions as determined by the
Secretary.
Clause 46-40 Maximum
payments for Commonwealth Scholarships
Creates a table setting out
the maximum payments for Commonwealth scholarships. The table lists 4 items
(column 1), the year (column 2) and the maximum amount payable (column 3).
Clause 46-40 provides that the total payments made to Table A providers and
Table B providers under Part 2-4 to pay Commonwealth scholarships, in respect of
a year referred to in the table, must not exceed the amount specified next to
that year in the table.
Part 2-5 -
Reduction and repayment of
grants
Division 51 -
Introduction
Clause 51-1 What this
Part is about
Bodies may have their grants reduced, or be required to
repay a grant, for breaches of conditions of grants under Part 2-2, 2-3 or 2-4
or the quality and accountability requirements in Division
19.
Clause 51-5 The Reduction and
Repayment Guidelines
Notes that reduction and repayment of grants is
also dealt with in the Reduction and Repayment Guidelines made by the Minister
under sections 238-10 and that the provisions of Part 2-5 indicate when a
particular matter is or may be dealt with in those
Guidelines.
Division 54 - In what
circumstances may a grant be reduced or required to be
repaid?
Clause 54-1 Decision as to
reduction in or repayment of a grant
Subclause 54-1(1) provides that
the Secretary may determine that an amount of a grant made or to be made to a
body under Part 2-2, 2-3 or 2-4 is to be reduced or that an amount of a grant
made to a body under Part 2-2, 2-3 or 2-4 is to be repaid to the
Commonwealth.
Subclause 54-1(2) provides that the Secretary may make a
determination under subsection 54-1(1) if the body breaches a condition of a
grant made to the body under Part 2-2, 2-3 or 2-4 (whether or not that grant is
the grant to be reduced or repaid), or a quality and accountability requirement.
In making such a determination the Secretary must be satisfied that it is
appropriate to take that action (see section 54-5) and must comply with the
requirements of Division 60.
Clause
54-5 Appropriateness of requiring reduction or repayment of
grant
Provides that, without limiting the matters that the Secretary
may consider in deciding whether it is appropriate under subsection 54-1 to take
particular action, the Secretary may consider any or all of the following
matters:
• whether the breach is of a minor or major
nature;
• whether the breach has occurred before and, if so, how
often;
• if the body is a higher education provider—the impact
that the breach may have on the body’s students;
• if the body is
a higher education provider—the impact of the breach on the higher
education provided by the body;
• Australia’s reputation as a
provider of high quality higher education;
• any other matter set out
in the Reduction and Repayment
Guidelines.
Division 57 - What is the
amount of a reduction or
repayment?
Clause 57-1 Reduction in
amount of grants
Provides that, if an amount of a grant is to be
reduced under Part 2-5, it must be reduced by an amount determined by the
Secretary in writing The Reduction and Repayment Guidelines may set out
requirements about how such an amount is to be determined and the Secretary must
make his or her determination in accordance with any such
requirements.
Clause 57-5 Amount of
the repayment
Provides that if an amount of a grant is to be repaid
under Part 2-5, the amount to be repaid is the amount that the Secretary
determines in writing. The amount to be repaid must not exceed the amount of
the grant. The Reduction and Repayment Guidelines may set out requirements
about how such an amount is to be determined and the Secretary must make his or
her determination in accordance with any such requirements. The amount to be
repaid is a debt owed to the Commonwealth by the body to which the grant was
paid.
Division 60 – How are
decisions on reducing a grant or requiring repayment of a grant
made?
Clause 60-1 Procedure prior to
decision
Subclause 60-1(1) provides that before making a decision
under paragraph 251-1(a) or (b) in respect of a body, the Secretary must give
the body notice in writing:
• stating that the Secretary is considering
reducing the body’s grant, or requiring the repayment of a grant made to
the body, as the case may be; and
• stating the amount of proposed
reductions or repayment and the reason why the Secretary is considering taking
that action; and
• inviting the body to make written submissions to the
Secretary within 28 days concerning why that action should not be taken and/or
why the amount of proposed reductions or repayment should be reduced;
and
• informing the body that, if no submission is received within the
time required, the action will take effect on the day after the last day for
making submissions.
Subclause 60-1(2) provides that, in deciding whether
or not to take the action, the Secretary must consider any submissions received
from the body within the 28 day period.
Clause 60-5 Notification
of decision
Subclause 60-5(1) provides that the Secretary must notify
the body in writing of his/her decision on whether or not to take the action.
The notice must be in writing and must be given within the period of 28 days
following the period in which submissions may have been given to the Secretary
under subsection 60-1(1).
Subclause 60-5(2) provides that if no notice is
given within the period provided for in paragraph 60-5(1)(c), the Secretary is
taken to have decided not to take the action.
Clause 60-10 When a
decision takes effect
Provides that, if no submission was made under
subsection 60-1(1), the decision to take the action takes effect on the day
after the last day for making submissions or, if such a submission was made, the
decision to take effect on the day specified in the notice under subsection
60-5(1) was given.
Chapter 3
- Assistance to
students
Division 65 -
Introduction
Clause 65-1 What this
Chapter is about
The Commonwealth provides 3 kinds of assistance to
students under this Chapter. These are:
• HECS-HELP
assistance—assistance to meet a student’s liability to pay student
contribution amounts for units of study that are Commonwealth supported (see
Part 3-2).
Note: A sufficient Student Learning Entitlement also enables a
student to access places that are funded under Part 2-2 (Commonwealth Grants
Scheme). The Commonwealth meets all or part of the higher education costs of
student who are enrolled in places funded under Part 2-2.
• FEE-HELP
assistance—assistance to meet a student’s liability to pay tuition
fees for units of study that are not Commonwealth supported (see Part
3-3);
• OS-HELP assistance—assistance to a student who, as part
of his or her course of study, is to undertake study at an overseas higher
education institution (see Part 3-4).
The Commonwealth pays the assistance to
the relevant higher education provider either (in the case of HECS-HELP
assistance and FEE-HELP assistance) to discharge the student’s liability,
or (in the case of OS-HELP assistance) to pay to students on the
Commonwealth’s behalf.
The assistance is (in almost all cases) in the
form of a loan from the Commonwealth to the student.
Part 3-1 - Student Learning
Entitlement
Division 70 -
Introduction
Clause 70-1 What this
Part is about
Student Learning Entitlement (or SLE) is needed for
many of the forms of assistance under the Act. In these cases, units of study
that a person enrols in must be covered by the person’s SLE.
Broadly
speaking, a person starts with an SLE equivalent to 5 years of full time study.
This is reduced as the person undertakes units of study as a Commonwealth
supported student (but it can be re credited in some
circumstances).
Clause 70-5 The
Student Learning Entitlement Guidelines
Notes that Student Learning
Entitlement is also dealt with in the Student Learning Entitlement Guidelines.
The provisions of Part 3-1 indicate when a particular matter is or may be dealt
with in these Guidelines.
Division 73 -
What is a person’s Student Learning
Entitlement?
Clause 73-1 A
person’s Student Learning Entitlement
Provides that a
person’s Student Learning Entitlement is the sum of the
ordinary SLE that the person has under section 73-5 and any additional SLE that
the person has under section 73-20, taking into account any reductions in the
person’s SLE under Division 76 and any re-crediting of the person’s
SLE under Division 79.
Clause 73-5
Ordinary SLE
Subclause 73-5(1) provides that a person who is an
eligible person on 1 January 2005 has, on that day, an ordinary SLE equal to 5
EFTSL.
Subclause 73-5(2) provides that any other person who (by birth or
otherwise) becomes an eligible person on a day after 1 January 2005 has on the
earliest such day an ordinary SLE equal to 5 EFTSL.
Subclause 73-5(3)
defines an eligible person as an Australian citizen, a citizen of
New Zealand or a permanent visa
holder.
Clause 73-10 Meaning of
EFTSL
Defines EFTSL as an equivalent full-time
student load. It is a measure of the study load of a student undertaking a
course of study on a full-time basis. A particular amount of EFTSL is an amount
of study (undertaken with a higher education provider as part of a course of
study) represented by units of study with EFTSL values, the sum of which equals
that amount.
Clause 73-15 Meaning of
EFTSL value
Defines the EFTSL value of a unit of
study as the value that the higher education provider with which the unit may be
undertaken determines in writing to be the EFTSL value of the unit, expressed as
a fraction of one EFTSL. If the unit can form part of more than one course of
study, the provider may determine an EFTSL value of the unit for each such
course of study. If a unit of study is subject to separate determinations in
relation to different courses of study, a reference to the EFTSL value of the
unit is, when the unit forms part of such a course, a reference to the EFTSL
value of the unit determined under subsection 73-15(2) for the course.
Determinations under section 73-15 must be in accordance with any requirements
set out in the Student Learning Entitlement
Guidelines.
Clause 73-20 Additional
SLE
Subclause 73-20(1) provides that a person has an additional SLE
if the person is enrolled in a course of study with a higher education provider,
the course is specified (or is a course of a kind specified) in the Student
Learning Entitlement Guidelines as a course (or kind of course) to which
additional SLE applies and the person meets any other requirements relating to
additional SLE set out in the Student Learning Entitlement
Guidelines.
Subclause 73-20(2) provides that the person is taken to have
had the additional SLE from the time immediately before he/she enrolled in the
course of study.
Subclause 73-20(3) provides that the amount of the
additional SLE is an amount (expressed in EFTSL) worked out in accordance with
the Student Learning Entitlement
Guidelines.
Clause 73-25 SLE not
transferable
Provides that a person’s SLE cannot be transferred
to, or used by, another person.
Clause
73-30 Ceasing to be an eligible person
Provides that a person ceases
to have an SLE if he/she ceases to be an eligible person. If a person had
previously ceased to be an eligible person and becomes an eligible person again,
then on becoming an eligible person again, the person has the same SLE (if any)
that he/she had immediately before the last time on which he/she ceased to be an
eligible person.
Division 76 - When is
a person’s Student Learning Entitlement
reduced?
Clause 76-1 Reducing a
person’s SLE
Provides that a person’s SLE is reduced if,
at the end of the census date for a unit of study with a higher education
provider, the person is enrolled in the unit, is enrolled in the unit as part of
a course of study (other than an enabling course), is a Commonwealth supported
student in relation to the unit and the person has completed and signed a
request for Commonwealth assistance in relation to the unit (or the course of
study of which the unit is a part) on or before the census date.
The
amount of the reduction is an amount equal to the EFTSL value of the unit of
study and the reduction takes effect immediately after the census date for the
unit of study.
Section 76-1 does not apply if the unit of study consists
wholly of work experience in
industry.
Clause 76-5 Reducing a
person’s additional SLE
Subclause 76-5(1) provides that if a
person has an additional SLE, that additional SLE is not reduced under section
76-1 in relation to a unit of study unless the person’s ordinary SLE is
less than the EFTSL value of the unit and the person is enrolled in the unit as
part of the course of study in relation to which the additional SLE
applies.
Subclause 76-5(2) provides that if a person has both an
additional SLE and ordinary SLE and the ordinary SLE is insufficient to cover a
unit of study in which the person is enrolled then, in reducing the
person’s SLE under section 76-1 to take account of the unit, the
person’s ordinary SLE is reduced to zero and the person’s additional
SLE is reduced only to the extent that the ordinary SLE is insufficient to cover
the unit.
Division 79 - In What
circumstances can a person’s Student Learning Entitlement be
re-credited?
Clause 79-1 Re-crediting
a person’s SLE
Provides that a higher education provider must,
on the Secretary’s behalf, re-credit a person’s SLE with an amount
equal to the EFTSL value of a unit of study if the person has been enrolled in
the unit as part of a course of study with the provider, the person has not
completed the requirements for the unit during the period during which the
person undertook (or was to undertake) the unit, the provider is satisfied that
special circumstances apply to the person (see section 79-5), the person applies
in writing to the provider for re-crediting of the SLE and, either the
application is made before the end of the application period under section 79-10
or the provider waives the requirement that the application be made before the
end of that period on the ground that it would not be (or was) not possible for
the application to be made before the end of that
period.
Clause 79-5 Special
circumstances
Subclause 79-5(1) provides that, for the purposes of
paragraph 79-1(c), special circumstances apply to the person if and only if the
higher education provider receiving the application is satisfied that
circumstances apply to the person that are beyond the person’s control, do
not make their full impact on the person until on or after the census date for
the unit of study in question and make it impracticable for the person to
complete the requirements for the unit during the period during which the person
undertook (or was to undertake) the unit.
Subclause 79-5(2) provides that
the Student Learning Entitlement Guidelines may specify circumstances in which a
higher education provider will be satisfied of a matter referred to in
subsection 79-5(1). A decision of a higher education provider under section
79-5 must be in accordance with any such
guidelines.
Clause 79-10 Application
period
Subclause 79-10(1) provides that if the person applying under
paragraph 79-1(d) for the re-crediting of the person’s SLE in relation to
a unit of study has withdrawn his/her enrolment in the unit and the higher
education provider gives notice to the person that the withdrawal has taken
effect, then the application period for the application is 12 months after the
day specified in the notice as the day the withdrawal takes
effect.
Subclause 79-10(2) provides that if subsection 79-10(1) does not
apply the application period for the application is 12 months after the end of
the period during which the person undertook (or was to undertake) the
unit.
Clause 79-15 Dealing with
applications
Provides that, if the application is made before the end
of the application period under section 79-10 or the higher education provider
waives the requirement that the application be made before the end of that
period on the ground that it would not be (or was) not possible for the
application to be made before the end of that period, then the provider must as
soon as practicable consider the matter to which the application relates and
notify the applicant of the decision on the application. The notice must
include a statement of the reasons for the
decision.
Division 82 - When is a unit
of study covered by a person’s Student Learning
Entitlement?
Clause 82-1 General
rule
Provides that the general rule is that a unit of study is
covered by a person’s SLE if the person enrols in the unit
as part of a course of study with a higher education provider and the EFTSL
value of the unit does not exceed the amount of SLE available to the person at
the time of enrolment in the
unit.
Clause 82-5 Availability of a
person’s SLE
Provides that the amount of a person’s SLE
that is available to the person at a particular time is the
difference between the amount of the person’s SLE at that time and the sum
of the EFTSL values of all of the units of study (if any) in which the person is
enrolled. Each unit of study (if any) in which the person is enrolled must be a
unit of study for which the census date will occur later than that time, that
was covered by the person’s SLE at the time of enrolment and in relation
to which the person is a Commonwealth supported
student.
Clause 82-10 Additional
SLE
Provides that despite section 82-1, a unit of study is not
covered by a person’s SLE if the person has an additional
SLE and the EFTSL value of the unit exceeds the amount of the person’s
ordinary SLE available to the person at the time of enrolment in the unit,
unless the person is enrolled in (or proposes to enrol in) the unit as part of
the course of study in relation to which the additional SLE
applies.
Clause 82-15 Simultaneous
enrolments that exceed a person’s SLE
Subclause 82-15(1)
provides that if a person enrols at the same time in more than one unit of study
as part of one or more courses of study with one or more higher education
providers and the sum of the EFTSL values of the units exceed the amount of the
person’s SLE available at the time of enrolment in the units, then despite
section 82-1 a unit that is one of those units is covered by the
person’s SLE only if:
• the person chooses not to be a
Commonwealth supported student in relation to one or more of the other units
(excluded units); and
• the sum of the EFTSL values of
all of those units that are not excluded units does not exceed the amount of the
person’s SLE that is available to the person at the time of enrolment in
the units; and
• in a case where the person has an additional SLE,
section 82-10 does not prevent the unit from being covered by the person’s
SLE.
Subclause 82-15(2) provides that a person’s choice under
paragraph 82-15(1)(c) [under which a person has the choice not to be a
Commonwealth supported student in relation to one or more of the excluded units]
in relation to a unit of study is made by notifying the higher education
provider with which the person is enrolled in the unit on or before the census
date for the unit.
Part 3-2 –
HECS-HELP assistance
Division 87 -
Introduction
Clause 87-1 What this
Part is about
Students may be entitled to HECS-HELP assistance for
units of study for which they are Commonwealth supported, if they meet certain
requirements. The amount of assistance is based on the student contribution
amounts charged for the units, less any up front payments. The assistance is
paid to higher education providers to discharge the students’ liability to
pay student contribution amounts. Amounts of assistance under this Part may
form part of a person’s HECS-HELP debt that the Commonwealth recovers
under Part 4-2.
Clause 87-5 The
HECS-HELP Guidelines
Notes that HECS-HELP assistance is also dealt
with in the HECS-HELP Guidelines and that the provisions of Part 3-2 indicate
when a particular matter is or may be dealt with in these
Guidelines.
Division 90 - Who is
entitled to HECS-HELP
assistance?
Clause 90-1 Entitlement to
HECS-HELP assistance
Provides that a student is entitled to HECS-HELP
assistance for a unit of study in which the student is enrolled with a higher
education provider if:
• the student meets the citizenship or residency
requirements under section 90-5; and
• the census date for the unit is
on or after 1 January 2005; and
• the student is a Commonwealth
supported student in relation to the unit; and
• either, at the time of
enrolment the unit was covered by the student’s Student Learning
Entitlement, or the unit wholly consists of work experience in industry;
and
• the student enrolled in the unit on or before the census date for
the unit and immediately before the end of the census date remained so enrolled;
and
• the student either meets the tax file number requirements or pays
(as one or more up-front payments in relation to the unit) 80% of the student
contribution amount for the unit; and
• on or before the census date
the student has completed and signed a request for Commonwealth assistance in
relation to the unit or in relation to the course of study of which the unit
forms a part.
Clause 90-5 Citizenship
or residency requirements
Provides that the citizenship or residency
requirements for HECS-HELP assistance for a unit of study are that the student
in question is an Australian citizen or the holder of a permanent humanitarian
visa (within the meaning of the regulations made under the Migration Act
1958) who will be resident in Australia for the duration of the unit. In
determining whether the student will be resident in Australia for the duration
of the unit, any period of residence outside Australia that cannot reasonably be
regarded as indicating an intention to reside outside Australia for the duration
of the unit or is required for the purpose of completing a requirement of that
unit is to be disregarded.
Division 93
- How are amounts of HECS-HELP assistance worked
out?
Clause 93-1 The amount of
HECS-HELP assistance for a unit of study
Provides that the amount of
HECS-HELP assistance to which a student is entitled for a unit of study is the
difference between the student contribution amount for the unit and the sum of
any up-front payments made in relation to the
unit.
Clause 93-5 Student contribution
amounts
Subclause 93-5(1) provides that the student contribution
amount for a unit of study is the amount worked out as follows:
where:
student contribution amount per place is the amount
that the higher education provider with which the unit is to be undertaken
determines to be the student contribution amount per place for the
unit.
Subclause 93-5(2) provides that the student contribution amount per
place determined for the unit must not exceed the maximum student contribution
amount per place for the unit.
Subclause 93-5(3) provides that the
student contribution amount for a unit of study is nil if it is
undertaken as part of an enabling course. Subsection 93-5(3) has effect despite
subsection 93-5(1).
Subclause 93-5(4) provides that if an amount worked
out by using the formula in subsection 93-5(1) is an amount made up of dollars
and cents, the amount must be rounded down to the nearest
dollar.
Clause 93-10 Maximum student
contribution amounts per place
Creates a table setting out the
maximum student contribution amount per place. The table lists 12 items (column
1), the funding clusters (column 2) and the maximum student contribution amount
per place (column 3). Provides that the maximum student contribution
amount per place for a unit of study is the amount specified in the
third column of the table in relation to that funding cluster or such other
amount as is specified in the Commonwealth Grant Scheme Guidelines in relation
to that funding cluster if the unit is included in a funding cluster that is
referred to in column 2 of the table. If the unit is included in a funding
cluster that has been varied or added by the Commonwealth Grant Scheme
Guidelines, the maximum student contribution amount per place for
a unit of study is the amount specified in the OSE Guidelines in relation to
that funding cluster.
Clause 93-15
Up-front payments
Provides that an up-front payment in
relation to a unit of study for which a student contribution amount is payable,
is a payment of a part of the student contribution amount for the unit, other
than a payment of HECS-HELP assistance under Part 3-2 and the payment must be
made on or before the census date for the unit. However, the payment is not an
up-front payment to the extent that the payment or, if other
up-front payments have already been made in relation to the unit, the sum of the
payment and all of those other up-front payments exceeds 80% of the student
contribution amount for the
unit.
Division 96 - How are amounts of
HECS-HELP assistance paid?
Clause 96-1
Payments to higher education providers—no up-front payment of student
contribution amount
Provides that if a student is entitled to an
amount of HECS-HELP assistance for a unit of study with a higher education
provider and no up-front payments are made for the unit, the Commonwealth must
(as a benefit to the student) lend to the student the amount of HECS-HELP
assistance and pay to the provider the amount lent in discharge of the
student’s liability to pay the student contribution amount for the
unit.
Clause 96-5 Payments to higher
education providers—partial up-front payment of student contribution
amount
Subclause 96-5(1) provides that if a student is entitled to an
amount of HECS-HELP assistance for a unit of study with a higher education
provider, one or more up-front payments have been made for the unit, the sum of
all the up-front payments made for all the units of study (that have the same
census date as that unit and in relation to which the student is enrolled as a
Commonwealth supported student) is less than 80% of the sum of the student
contribution amounts for all of the units and the sum of all the up-front
payments made for all of the units is $500 or more, then the Commonwealth must
pay the amount of HECS-HELP assistance in accordance with subsections 96-5(2)
and (3).
Subclause 96-5(2) provides that the Commonwealth must (as a
benefit to the student) lend to the student an amount equal to the difference
between the amount of HECS-HELP assistance for the unit and the HECS-HELP
discount for the unit and pay the provider the amount lent in discharge of that
amount of the student’s liability to pay the student contribution amount
for the unit.
Subclause 96-5(3) provides that the Commonwealth must (as a
benefit to the student) pay to the provider an amount equal to the HECS-HELP
discount for the unit in discharge of that amount of the student’s
liability to pay the student contribution amount for the unit.
Subclause
96-5(4) provides that the HECS-HELP discount for a unit of study
is an amount equal to one quarter of the sum of all the up-front payments made
for the unit if the sum of those payments is $500 or
more.
Clause 96-10 Payments to higher
education providers—full up-front payment of student contribution
amount
Provides that if a student is entitled to an amount of
HECS-HELP assistance for a unit of study with a higher education provider, one
or more up-front payments have been made for the unit and the sum all the
up-front payments made for all the units of study (that have the same census
date as that unit and in relation to which the student is enrolled as a
Commonwealth supported student) is 80% of the sum of the student contribution
amounts for all of the units, then the Commonwealth must (as a benefit to the
student) pay to the provider the amount of HECS-HELP assistance for the unit in
discharge of that amount of the student’s liability to pay the student
contribution amount for the unit.
Part 3-3
– FEE-HELP Assistance
Division
101 - Introduction
Clause 101-1 What
this Part is about
Students may be entitled to FEE-HELP assistance
for units of study for which they are not Commonwealth supported if they meet
certain requirements. The amount of assistance is based on the tuition fees
charged for the units, but there is a limit on the total amount of assistance
that a student can receive. The assistance is paid to higher education
providers to discharge the students’ liability to pay tuition
fees.
Clause 101-5 The FEE-HELP
Guidelines
Notes that FEE-HELP assistance is also dealt with in the
FEE-HELP Guidelines and that the provisions of Part 3-3 indicate when a
particular matter is or may be dealt with in these
Guidelines.
Division 104 - Who is
entitled to FEE-HELP
assistance?
Subdivision 104-A -
Basic rules
Clause 104-1
Entitlement to FEE-HELP assistance
Provides that a student is
entitled to FEE-HELP assistance for a unit of study if:
• the student
meets the citizenship or residency requirements under section 104-5;
and
• the student’s FEE-HELP balance is greater than zero;
and
• the census date for the enrolment is on or after 1January 2005;
and
• the student is not a Commonwealth supported student in relation
to the unit; and
• the unit meets the course requirements under section
104-10; and
• the unit is, or is to be, undertaken as part of a course
of study or is a unit access to which was provided by Open Learning Australia or
is part of a bridging course for overseas-trained professionals;
and
• the student enrolled in the unit on or before the census date for
the unit and immediately before the end of the census date, remained so
enrolled; and
• the student meets the tax file number requirements;
and
• the student has, on or before the census date, completed and
signed a request for Commonwealth assistance in relation to the unit, or in
relation to the course of study of which the unit forms a part;
and
• the student has not been precluded from receipt of the FEE-HELP
assistance because of section 107-15
However, the student is not entitled
to FEE-HELP assistance for the unit if the student has already undertaken 8 or
more other units of study to which access was provided by Open Learning
Australia and the student did not successfully complete at least 50% of those
other units.
Clause 104-5 Citizenship
or residency requirements
Subclause 104-5(1) provides that the
citizenship or residency requirements for FEE-HELP assistance for a unit of
study are that the student in question is an Australian citizen, or the holder
of a permanent humanitarian visa (within the meaning of the regulations made
under the Migration Act 1958) who will be resident in Australia for the
duration of the unit or, if the student is undertaking or is to undertake the
unit as part of a bridging course for overseas-trained professionals, a
permanent visa holder who will be resident in Australia for the duration of the
unit.
Subclause 104-5(2) provides that, in determining (for the purposes
of subsection 104-5(1)) whether the student will be resident in Australia for
the duration of the unit, any period of residence outside Australia that cannot
reasonably be regarded as indicating an intention to reside outside Australia
for the duration of the unit or is required for the purpose of completing a
requirement of that unit is to be
disregarded.
Clause 104-10 Course
requirements
Subclause 104-10(1) provides that the course
requirements for FEE-HELP assistance for a unit of study are that if the unit is
being undertaken as part of a course of study, the course is not a course that
is subject to a determination under subsection 104-10(2) or is with a higher
education provider that is subject to a determination under subsection
104-10(2). If the higher education provider who is providing the course is a
non self-accrediting provider the course must be an accredited
course.
Subclause 104-10(2) provides that the Minister may determine in
writing that a specified course provided by a specified higher education
provider does not meet the course requirements for FEE-HELP assistance or that
all courses provided by a specified higher education provider do not meet the
course requirements for FEE-HELP
assistance.
Subdivision 104-B
– FEE-HELP balances
Clause
104-15 A person’s FEE-HELP balance
Subclause 104-15(1)
provides that if the FEE-HELP limit is greater than the sum of all of the
amounts of FEE-HELP assistance that have previously been payable to them, then a
person’s FEE-HELP balance at a particular time is the
difference between the person’s FEE-HELP limit and that sum. Otherwise a
person’s FEE-HELP limit is zero.
Subclause 104-15(2) provides that,
to avoid doubt, the sum referred to in subsection 104-15(1) includes amounts of
FEE-HELP assistance that have been
repaid.
Clause 104-20 The FEE-HELP
limit
Provides that the FEE-HELP limit is $50,000 and
is indexed under Part 5-6.
Clause
104-25 Re-crediting a person’s FEE-HELP balance
Provides that
a higher education provider must, on the Secretary’s behalf, re-credit a
person’s FEE-HELP balance with an amount equal to the amounts of FEE-HELP
assistance that the person received for a unit of study if:
• the
person has been enrolled in the unit with the provider; and
• the
person has not completed the requirements for the unit during the period during
which the person undertook or was to undertake the unit; and
• the
provider is satisfied that special circumstances apply to the person (see
section 104-30); and
• the person applies in writing to the provider
for re-crediting of the FEE-HELP balance; and
• either the application
is made before the end of the application period under section 104-35 or the
provider waives the requirement that the application be made before the end of
that period on the ground that it would not be (or was) not possible for the
application to be made before the end of that period.
Clause
104-30 Special circumstances
Subclause 104-30(1) provides that, for
the purposes of paragraph 104-25(c), special circumstances apply to the person
if and only if the higher education provider receiving the application is
satisfied that circumstances apply to the person that are beyond the
person’s control, do not make their full impact on the person until on or
after the census date for the unit of study in question and make it
impracticable for the person to complete the requirements for the unit during
the period during which the person undertook or was to undertake the
unit.
Subclause 104-30(2) provides that if the Student Learning
Entitlement Guidelines specify circumstances in which a higher education
provider will be satisfied of a matter referred to in paragraph 79-5(1)(a), (b)
or (c) any decision of a higher education provider under this section must be in
accordance with any such guidelines.
Clause 104-35 Application
period
Subclause 104-35(1) provides that if the person applying under
paragraph 104-25(d) for the re-crediting of their FEE-HELP balance in relation
to a unit of study has withdrawn his/her enrolment in the unit and the higher
education provider gives notice to the person that the withdrawal has taken
effect, then the application period is 12 months after the day specified in the
notice as the day the withdrawal takes effect.
Subclause 104-35(2)
provides that if subsection 104-35(1) does not apply, the application period is
12 months after the period during which the person undertook (or was to
undertake) the unit.
Clause 104-40 Dealing with
applications
Subclause 104-40(1) provides that if the application is
made before the end of the application period under subsection 104-35 or the
higher education provider waives the requirement that the application be made
before the end of that period on the ground that it would not be (or was) not
possible for the application to be made before the end of that period, then the
provider must as soon as practicable consider the matter to which the
application relates and notify the applicant of the decision on the
application.
Subclause 104-40(2) provides that the notice must include a
statement of the reasons for the
decision.
Subdivision 104-C -
Bridging courses for overseas-trained
professionals
Clause 104-45
Meaning of bridging course for overseas-trained
professionals
Subclause 104-45(1) provides that one or more
subjects or units in which a person is enrolled with a higher education provider
are together a bridging course for overseas-trained professionals
if:
• the person holds an assessment statement issued by an assessing
body for a listed professional occupation; and
• the statement is to
the effect that, in the body’s opinion, if the person were successfully to
undertake additional studies of a kind specified in the statement, the person
would meet the requirements for entry to that occupation; and
• the
person undertakes, or proposes to undertake, those additional studies by
enrolling, or proposing to enrol, on a non-award basis, in those subjects or
units with the provider; and
• the total student load imposed on the
person in relation to those subjects or units does not exceed the
provider’s maximum BOTP student load; and
• those subjects or
units relate to the assessment statement.
Subclause 104-45(2) provides
that one or more occupation-related courses of instruction in which a person is
enrolled with a higher education provider are together a bridging course
for overseas-trained professionals if:
• the person holds an
assessment statement issued by an assessing body for a listed professional
occupation; and
• the statement is to the effect that, in the
body’s opinion, if the person were to be successful in one or more
examinations specified in the statement, the person would meet the requirements
for entry to that occupation; and
• the person prepares, or proposes to
prepare, for those examinations by enrolling, or proposing to enrol, on a
non-award basis, in those occupation-related courses of instruction with the
provider; and
• the total student load imposed on the person in
relation to those courses does not exceed the provider’s maximum BOTP
student load; and
• those courses relate to the assessment
statement.
Subclause 104-45(3) provides that a tuition and training
program in which a person is enrolled with a higher education provider is a
bridging course for overseas-trained professionals
if:
• a person holds an assessment statement issued by an assessing
body for a listed professional occupation; and
• the statement is to
the effect that, in the body’s opinion, if the person were to undertake a
tuition and training program of a kind specified in the statement, the person
would meet the requirements for entry to that occupation; and
• the
person undertakes, or proposes to undertake, such a program by enrolling, or
proposing to enrol, on a non-award basis, in a tuition and training program with
the provider; and
• the total student load imposed on the person in
relation to that program does not exceed the institution’s maximum BOTP
student load; and
• that program relates to the assessment
statement.
Clause 104-50 Assessment
statements
Subclause 104-50(1) provides that an assessing body for a
listed professional occupation may give to a person who holds a qualification
that was awarded in a foreign country and relates to that occupation and the
person proposes to seek entry to that occupation in Australia (or if the
assessing body is an assessing body of a State or Territory, in that State or
Territory), a written statement to the effect that, in the body’s opinion,
if the person were to do any or all of the things referred to in subsection
104-50(2), the person would meet the requirements for entry to that occupation.
The statement is an assessment statement.
Subclause
104-50(2) provides that the statement may refer to any or all of the
following:
• successfully undertaking additional studies of a kind
specified in the statement;
• being successful in one or more
examinations specified in the statement;
• successfully undertaking a
tuition and training program of a kind specified in the
statement.
Subclause 104-50(3) provides that section 104-50 does not
affect the power of an assessing body to charge fees for an assessment statement
under subsection 104-50(1).
Clause
104-55 Meaning of assessing body
Provides that an
assessing body for a particular listed professional occupation is
a person or body specified in the FEE-HELP Guidelines as an assessing body for
that occupation. Section 104-55 does not prevent 2 or more persons or bodies
from being assessing bodies for the same listed professional occupation. The
FEE-HELP Guidelines may limit the specification of a person or body as an
assessing body for a particular listed professional occupation to a particular
State, the Australian Capital Territory or the Northern Territory. Such an
assessing body is an assessing body of a State or
Territory.
Clause 104-60
Meaning of listed professional occupations
Provides
that a listed professional occupation is an occupation specified
in the FEE-HELP Guidelines as a listed professional occupation. An occupation
may be specified even if it is not one of the traditional
professions.
Clause 104-65 Occupation
includes part of an occupation
Provides that an
occupation includes a part of an occupation specified in the
FEE-HELP Guidelines as an occupation in its own right. Clause 104-65 gives two
examples of ways in which a part of an occupation can be
specified.
Clause 104-70 Requirements
for entry to an occupation
Subclause 104-70(1) provides that the
requirements for entry to a listed professional occupation are the
educational requirements for entry to that occupation in Australia or, if the
requirements are referred to in an assessment statement given by an assessing
body of a State or Territory for that occupation, the educational requirements
for entry to that occupation in that State or Territory.
Subclause
104-70(2) provides that a requirement for entry to a listed professional
occupation may be imposed by or under a law, be imposed by or under the rules of
a body, consist of eligibility for membership of a body or arise as a generally
accepted employment or industry practice.
Subclause 104-70(3) provides
that neither of the following is a requirement for entry to a listed
professional occupation:
• English language training relating to
general aspects of written communication or verbal communication (or both);
or
• being successful in the Occupational English Test administered by
Language Australia or any other English language test where that test does not
form an integral part of an occupation-related study unit, course of instruction
or tuition and training program.
Clause
104-75 Meanings of student load and maximum BOTP student
load
Defines the student load for one or more units
of study, for one or more occupation-related courses of instruction or for a
tuition and training program as the study load determined (in accordance with
FEE-HELP Guidelines) by the higher education provider providing the units,
courses or program. It does not include any work experience in industry and is
to be worked out on the assumption that the person undertaking (or proposing to
undertake) the units, courses or program will not be required to repeat
anything.
Defines the maximum BOTP student
load for a higher education provider as the student load
determined by the provider (in accordance with FEE-HELP Guidelines) to represent
the load imposed on a full-time student for one year or the part-time equivalent
of that load.
Division 107 - How are
amounts of FEE-HELP assistance worked
out?
Clause 107-1 The amount of
FEE-HELP assistance for a unit of study
Provides that the amount of
FEE-HELP assistance to which a student is entitled for a unit of study is the
difference between the tuition fee for the unit and the sum of any up-front
payments made in relation to the
unit.
Clause 107-5 Up-front
payments
Provides that an up-front payment in relation to a
unit of study for which a tuition fee is payable is a payment of all or part of
the tuition fee for the unit, other than a payment of FEE-HELP assistance under
Part 3-3. The payment must be made on or before the census date for the
unit.
Clause 107-10 Amounts of
FEE-HELP assistance must not exceed the FEE-HELP balance
Subclause
107-10(1) provides that the amount of FEE-HELP assistance to which a student is
entitled for a unit of study is an amount equal to the student’s FEE-HELP
balance on the census date for the unit if there is no other unit of study (with
the same census date) for which the student is entitled to FEE-HELP assistance
and the amount of FEE-HELP assistance to which the student would be entitled
under section 107-1 for the unit would exceed that FEE-HELP
balance.
Subclause 107-10(2) provides that, if the sum of the amount of
FEE-HELP assistance to which a student would be entitled under section 107-1 for
a unit of study and any other amounts of FEE-HELP assistance to which the
student would be entitled under that section for other units that have the same
census date as that unit, would exceed the student’s FEE-HELP balance on
the census date for the unit then, despite subsection 107-1, the total amount of
FEE-HELP assistance to which the student is entitled for all of those units is
an amount equal to that FEE-HELP balance.
Subclause 107-10(3) provides
that if the student has enrolled in the units with more than one higher
education provider, the student must notify each provider of the proportion of
the total amount of FEE-HELP assistance that is to be payable in relation to the
units in which the student has enrolled with that
provider.
Clause 107-15 Limits on
amounts of FEE-HELP assistance relating to particular higher education
providers
Subclause 107-15(1) provides that the FEE-HELP Guidelines
may specify that the sum of all amounts of FEE-HELP assistance that would (apart
from this section) be payable for units of study undertaken with a particular
higher education provider during a particular period is not to exceed a
specified amount.
Subclause 107-15(2) provides that the provider must
select which of the students who (apart from section 107-15) are entitled to
FEE-HELP assistance, are to receive FEE-HELP assistance during the period. The
selection must be carried out in accordance with the FEE-HELP
Guidelines.
Subclause 107-15(3) provides that the FEE-HELP Guidelines may
set out procedures that higher education providers must follow in deciding
whether to select students for receipt of FEE-HELP assistance.
Subclause 107-15(4) provides that without limiting
subsection 107-15(3), those procedures may include one or more of the
following:
• applications by students for selection for receipt of
FEE-HELP assistance;
• matters higher education providers must consider
in deciding which students to select;
• the basis on which higher
education providers must decide which students to select;
• deadlines
on higher education providers for making those decisions;
• notifying
applicants of the decisions on their
applications.
Division 110 - How are
amounts of FEE-HELP assistance
paid?
Clause 110-1 Payments to higher
education providers
Provides that if a student is entitled to an
amount of FEE-HELP assistance for a unit of study with a higher education
provider, the Commonwealth must (as a benefit to the student) lend the student
the amount of FEE-HELP assistance and pay the amount lent to the provider in
discharge of the student’s liability to pay the tuition fee for the
unit.
Clause 110-5 Effect of FEE-help
balance being re-credited
Provides that if under section 104-25 a
higher education provider re-credits a person’s FEE-HELP balance with an
amount relating to FEE-HELP assistance for a unit of study, the provider must
pay to the Commonwealth an amount equal to the amount of FEE-HELP assistance to
which the person was entitled for the
unit.
Part 3-4 – OS-HELP
Assistance
Division 115 -
Introduction
Clause 115-1 What this
Part is about
Students may be entitled to OS-HELP assistance for
periods of study with overseas higher education institutions if they meet
certain requirements. In particular, their higher education provider must have
selected them for OS-HELP assistance. The amount of OS-HELP assistance is
limited to a maximum amount for each period of study, and only 2 such periods
can attract OS-HELP assistance.
Clause
115-5 The OS-HELP Guidelines
Notes that OS-HELP assistance is also
dealt with in the OS-HELP Guidelines. The provisions of Part 3-4 indicate when
a particular matter is or may be dealt with in those
Guidelines.
Division 118 - Who is
entitled to OS-HELP assistance?
Clause
118-1 Entitlement to OS-HELP assistance
Subclause 118-1(1) provides
that a student is entitled to OS-HELP assistance in relation to a period of 6
months if:
• the student meets the citizenship or residency
requirements under section 118-5; and
• the student has not received
OS-HELP assistance on more than one other occasion; and
• the student
is enrolled in a course of study with a Table A higher education provider;
and
• the student has already completed units of study that count
towards the course requirements for that course that have a total EFTSL value of
at least one EFTSL and in relation to which the student was a Commonwealth
supported student; and
• the student meets the overseas study
requirements under section 118-10; and
• on the completion of that
study outside Australia, the student will have to complete units of study that
have a total EFTSL value of at least one EFTSL in order to complete the course
requirements for that course of study; and
• the student meets the tax
file number requirements; and
• the student has completed and signed a
request for Commonwealth assistance in relation to that course of study;
and
• the provider has selected the student for receipt of OS-HELP
assistance in relation to the period (see section 118-15).
Subclause
118-1(2) provides that the student is not entitled to OS-HELP assistance in
relation to that period if another higher education provider has granted OS-HELP
assistance to the student in relation to that period or a period that overlaps
with that period.
Clause 118-5
Citizenship or residency requirements
Provides that the citizenship
or residency requirements for OS-HELP assistance are that the student in
question is an Australian citizen or the holder of a permanent humanitarian visa
(within the meaning of the regulations made under the Migration Act
1958).
Clause 118-10 Overseas
study requirements
Provides that the overseas study requirements for
OS-HELP assistance are that:
• the student in question is enrolled in
full-time study with an overseas higher education institution and will be
outside Australia while undertaking that study and the study commences on or
after 1 January 2005; and
• there is an arrangement, between the
overseas institution and the higher education provider with which the student is
enrolled, for the provider’s students to undertake study at the
institution; and
• under that arrangement the student’s study
outside Australia will count towards the course requirements of the course of
study in which the student is enrolled with the
provider.
Clause 118-15 Selection of
students for receipt of OS-HELP assistance
Subclause 118-15(1)
provides that the OS-HELP Guidelines may set out procedures that higher
education providers must follow in deciding whether to select students for
receipt of OS-HELP assistance.
Subclause 118-15(2) provides that, without
limiting subsection 118-15(1), those procedures may include one or more of the
following:
• applications by students for selection for receipt of
OS-HELP assistance;
• the basis on which higher education providers
will select students for receipt of OS-HELP assistance;
• matters
higher education providers must consider in deciding which students to
select;
• deadlines on higher education providers for making those
decisions;
• notifying applicants of the decisions on their
applications.
Subclause 118-15(3) provides that any decision by a higher
education provider about whether to select a student for receipt of OS-HELP
assistance must be made in accordance with the OS-HELP Guidelines. Those
procedures may include one or more of the following;
• applications by
students for selection for receipt of OS-HELP assistance;
• the basis
on which higher education providers will select students for receipt of OS-HELP
assistance;
• matter higher education providers must consider in
deciding which students to select;
• deadlines on higher education
providers for making those decisions;
• notifying applicants of the
decisions on their applications.
Subclause 118-15(4) provides that,
without limiting the matters that may be included in the OS-HELP Guidelines made
for the purposes of subsection 118-15(3), those guidelines may deal with the
number of its students whom higher education providers may select for receipt of
OS-HELP assistance or how that number is to be
determined.
Division 121 - How are amounts
of OS-HELP assistance worked
out?
Clause 121-1 The amount of
OS-HELP assistance for a period
Provides that the amount of OS-HELP
assistance to which a student is entitled for a period of 6 months is the amount
determined by the higher education provider to which the student applied for
selection for receipt of the assistance. The amount must not exceed the amount
specified in the application or the maximum OS-HELP amount for a period of 6
months. If the provider has a minimum OS-HELP amount, the amount must not be
less than the higher education provider’s minimum OS-HELP amount. The
OS-HELP Guidelines may specify requirements for how amounts of OS-HELP
assistance are to be determined and amounts of OS-HELP assistance are to be
determined in accordance with any such
requirements.
Clause 121-5 Maximum
OS-HELP amount
Provides that the maximum OS-HELP
amount, for a period of 6 months, is
$5,000.
Clause 121-10 Minimum OS-HELP
amounts
Provides that a higher education provider may determine, in
writing, its minimum OS-HELP amount. Such a determination has
effect until it is replaced by a later determination or it is revoked. The
OS-HELP Guidelines may specify requirements for how minimum OS-HELP amounts are
to be determined and minimum OS-HELP amounts are to be determined in accordance
with any such requirements.
Division
124 - How are amounts of OS-HELP assistance
paid?
Clause 124-1 Amounts of OS-HELP
assistance are lent to students
Provides that if a student is
entitled to an amount of OS-HELP assistance for a period of 6 months, the
Commonwealth must (as a benefit to the student) lend the student the amount of
OS-HELP assistance. The higher education provider that selected the student for
receipt of OS-HELP assistance in relation to the period must (on the
Commonwealth’s behalf) pay the student the amount lent. The Commonwealth
must make payments to the higher education provider on account of amounts the
provider pays under this section on the Commonwealth’s
behalf.
Chapter 4 -
Repayment of loans
Division 129
- Introduction
Clause 129-1 What this
Chapter is about
Loans that the Commonwealth makes to students under
Chapter 3 are repayable under this Chapter. Each loan is incorporated into
either the person’s accumulated HECS-HELP debt or accumulated
FEE-HELP/OS-HELP debt, depending on the form of assistance under Chapter 3 to
which the loan relates (see Part 4-1). Under Part 4-2, the accumulated debts
can be repaid in 2 ways:
• a person may make voluntary repayments
(which may attract a repayment bonus); or
• compulsory repayments
(based on a person’s income) are made using the system for payment of
income tax.
Part 4-1 -
Indebtedness
Division 134 -
Introduction
Clause 134-1 What this
Part is about
A person incurs a HELP debt if he/she receives, as
HECS-HELP assistance, FEE-HELP assistance or OS-HELP assistance, a loan from the
Commonwealth under Chapter 3. HECS-HELP debts are incorporated into the
person’s accumulated HECS-HELP debt. FEE HELP debts and OS HELP debts are
incorporated into the person’s accumulated FEE-HELP/OS-HELP debt. These
accumulated debts represent the amount that the person is obliged to
repay.
Division 137 - How do HELP debts
arise?
Clause 137-1 HELP
debts
Provides that HECS-HELP debts, FEE-HELP debts and OS-HELP debts
are HELP debts.
Clause
137-5 HECS-HELP debts
Subclause 137-5(1) provides that a person
incurs a HECS-HELP debt to the Commonwealth if, under section 96-1
or 96-5, the Commonwealth makes a loan to the person and uses the amount lent to
make a payment in discharge of the person’s liability to pay the student
contribution amount for a unit of study.
Subclause 137-5(2) provides that
the amount of the HECS-HELP debt is the amount of the loan.
Subclause
137-5(3) provides that the HECS-HELP debt is taken to have been incurred
immediately after the census date for the person’s enrolment in the unit,
whether or not the Commonwealth has made a payment in respect of the student
contribution amount.
Subclause 137-5(4) provides that a person’s
HECS-HELP debt in relation to a unit of study is taken to be remitted if the
person’s SLE is re-credited under Division 79 in relation to the
unit.
Clause 137-10 FEE-HELP
debts
Subclause 137-10(1) provides that a person incurs a
FEE-HELP debt to the Commonwealth if under section 110-1 the
Commonwealth makes a loan to the person and uses the amount lent to make a
payment in discharge of the person’s liability to pay the tuition fee for
a unit of study.
Subclause 137-10(2) provides that the amount of the
FEE-HELP debt is the amount of the loan.
Subclause 137-10(3) provides
that the FEE-HELP debt is taken to have been incurred immediately after the
census date for the person’s enrolment in the unit, whether or not the
Commonwealth has made a payment in respect of the tuition fee.
Subclause
137-10(4) provides that a person’s FEE-HELP debt in relation to a unit of
study is taken to be remitted if the person’s FEE-HELP balance is
re-credited under section 104-25 in relation to the
unit.
Clause 137-15 OS-HELP
debts
Subclause 137-15(1) provides that a person incurs an
OS-HELP debt to the Commonwealth if under section 124-1 the
Commonwealth makes a loan to the person.
Subclause 137-15(2) provides
that the amount of the OS-HELP debt is the amount of the loan.
Subclause
137-15(3) provides that the OS-HELP debt is taken to have been incurred on the
day on which a higher education provider (on the Commonwealth’s behalf)
paid the amount lent to the
person.
Clause 137-20 HELP debt
discharged by death
Provides that upon the death of a person who owes
a HELP debt to the Commonwealth, the debt is taken to have been
paid.
Division 140 - How are
accumulated HECS-HELP debts worked
out?
Subdivision 140-A - Outline of
this Division
Clause 140-1 Outline
of this Division
There are 2 stages to working out a person’s
accumulated HECS-HELP debt for a financial year.
The former accumulated
HECS-HELP debt is worked out by adjusting the preceding financial year’s
accumulated HECS-HELP debt to take account of changes in the Consumer Price
Index, the HECS-HELP debts that the person incurs during the last 6 months of
the preceding financial year, voluntary repayments of the debt and compulsory
repayment amounts in respect of the debt (See Subdivision 140-C.)
The
person’s accumulated HECS-HELP debt is worked out from his/her former
accumulated HECS-HELP debt, the HECS-HELP debts that he/she incurs during the
first 6 months of the financial year and voluntary repayments of HECS-HELP debts
during the 12 months preceding 1 June in the financial year (See Subdivision
140-C).
Incurring that financial year’s accumulated HECS-HELP debt
discharges the previous accumulated HECS-HELP debt and HECS-HELP debts under
Part 4-1 (see section
372-3).
Subdivision 140-B - Former
accumulated HECS HELP debts
Clause
140-5 Working out a former accumulated HECS-HELP debt
Subclause
140-5(1) provides that a person’s former accumulated HECS-HELP
debt, in relation to the person’s accumulated HECS-HELP debt for a
financial year is worked out by multiplying the amount worked out using a six
step method statement (set out in the subsection) by the HELP debt indexation
factor for 1 June in that financial year.
Subclause 140-5(2) provides
that for the purposes of section 140-5, an assessment (or an amendment of an
assessment) is taken to have been made on the day specified in the notice of
assessment (or notice of amended assessment) as the date of issue of that
notice.
Clause 140-10 HELP debt
indexation factor
Subclause 140-10(1) provides that the HELP
debt indexation factor for 1 June in a financial year is the number
(rounded to 3 decimal places) worked out in accordance with a three step method
statement set out in the subsection.
Subclause 140-10(2) provides that
for the purposes of rounding a HELP debt indexation factor, the third decimal
place is rounded up if, apart from the rounding, the factor would have 4 or more
decimal places and the fourth decimal place would be a number greater than
4.
Clause 140-15 Index
numbers
Subclause 140-15(1) provides that the index number for
a quarter is the All Groups Consumer Price Index number, being the weighted
average of the 8 capital cities, published by the Australian Statistician in
respect of that quarter.
Subclause 140-15(2) provides that subject to
subsection 140-15(3), if at any time before or after the commencement of the Act
the Australian Statistician has published or publishes an index number in
respect of a quarter and that index number is in substitution for an index
number previously published by the Australian Statistician in respect of that
quarter, then the publication of the later index is disregarded for the purposes
of this section.
Subclause 140-15(3) provides that if, at any time before
or after the commencement of this Act, the Australian Statistician has changed
or changes the reference base for the Consumer Price Index, then in applying
this section after the change took place or takes place, regard should be had
only to index numbers published in terms of the new reference
base.
Clause 140-20 Publishing HELP
debt indexation factors
Provides that the Commissioner must cause to
be published before 1 June in each financial year the HELP debt indexation
factor for that 1 June.
Subdivision
140-C - Accumulated HECS-HELP
debts
Clause 140-25 Working out an
accumulated HECS-HELP debt
Subclause 140-25(1) provides that a
person’s accumulated HECS-HELP debt, for a financial year is
worked out as follows:
where:
former accumulated
HECS-HELP debt is the person’s former accumulated HECS-HELP debt
in relation to that accumulated HECS-HELP debt.
HECS-HELP debt
repayments is the sum of all of the voluntary repayments (if any) paid,
on or after 1 July in the preceding financial year and before the next 1 June,
in reduction of the HECS-HELP debts incurred on or after 1 July in the preceding
financial year.
HECS-HELP debts incurred is the sum of the
amounts of all of the HECS-HELP debts (if any) that the person incurred during
the first 6 months of the financial year.
Subclause 140-25(2) provides
that the person incurs the accumulated HECS-HELP debt on 1 June in the financial
year.
Subclause 140-25(3) provides that the first financial year for
which a person can have an accumulated HECS-HELP debt is the financial year
starting on 1 July 2005.
Clause 140-30
Rounding of amounts
Provides that if (apart from section 140-30) a
person’s accumulated HECS-HELP debt would be an amount consisting of a
number of whole dollars and a number of cents, the number of cents is
disregarded. In addition, if (apart from section 140-30) a person’s
accumulated HECS-HELP debt would be an amount of less than one dollar, then the
person’s accumulated HECS-HELP debt is taken to be
zero.
Clause 140-35 Accumulated
HECS-HELP debt discharges earlier debts
Subclause 140-35(1) provides
that the accumulated HECS-HELP debt that a person incurs on 1 June in a
financial year discharges (or discharges the unpaid part of) any HECS-HELP debt
that the person incurred during the calendar year preceding that day and any
accumulated HECS-HELP debt that the person incurred on the preceding 1
June.
Subclause 140-35(2) provides that nothing in subsection 140-35(1)
affects the application of Division 137 or section
140-25.
Clause 140-40 Accumulated
HECS-HELP debt discharged by death
Provides that upon the death of a
person who has an accumulated HECS-HELP debt, the accumulated HECS-HELP debt is
taken to be discharged. To avoid doubt, this section does not affect any
compulsory repayment amounts required to be paid in respect of the accumulated
HECS-HELP debt, whether or not those amounts were assessed before the
person’s death.
Division 143 -
How are accumulated FEE-HELP/OS-HELP debts worked
out?
Subdivision 143-A - Outline of
this Division
Clause 143-1 Outline
of this Division
Subclause 143-1(1) provides that there are 3 stages
to working out a person’s accumulated FEE-HELP/OS-HELP debt for a
financial year. These 3 stages are set out in subsections 143-1(2), (3) and
(4).
Stage 1
Subclause 143-1(2) provides that the
person’s former unindexed FEE-HELP/OS-HELP debt is worked out by adjusting
the preceding financial year’s accumulated FEE-HELP/OS-HELP debt to take
account of the FEE-HELP/OS-HELP debts that he/she incurs during the last 6
months of the preceding financial year, voluntary repayments of the debt and
compulsory repayment amounts in respect of the debt so far as they are not taken
into account in working out an accumulated HECS-HELP debt (see Subdivision
143-B.)
Stage 2
Subclause 143-1(3) provides that the former
indexed FEE-HELP/OS-HELP debt is worked out by adjusting the person’s
former unindexed FEE-HELP/OS-HELP debt to take account of changes in the
Consumer Price Index and (for some financial years) an interest rate of 3.5%
(see Subdivision 143-C.)
Stage 3
Subclause 143-1(4) provides
that the person’s accumulated FEE-HELP/OS-HELP debt is worked out from
his/her former indexed FEE-HELP/OS-HELP debt, the FEE-HELP debts and OS-HELP
debts that he/she incurs during the first 6 months of the financial year and
voluntary repayments of FEE-HELP debts and OS-HELP debts during the 12 months
preceding 1 June in the financial year (see Subdivision
143-D.)
Subdivision 143-B - Former
unindexed FEE-HELP/OS-HELP
debts
Clause 143-5 Working out a
former unindexed FEE-HELP/OS-HELP debt
Subclause 143-5(1) provides
that a person’s former unindexed FEE-HELP/OS-HELP debt, in
relation to the financial year is worked out using a six step method statement
set out in the subsection.
Subclause 143-5(2) provides that, in applying
Step 4, 5 or 6 of the method statement, any compulsory repayment amount of the
person (or any increase or reduction in that amount) must be disregarded to the
extent (if any) that the amount, increase or reduction is taken into account in
the corresponding step in the method statement in section 140-5. A detailed
example is provided below the subsection.
Subclause 143-5(3) provides
that for the purposes of section 143-5 an assessment or an amendment of an
assessment is taken to have been made on the day specified in the notice of
assessment (or notice of amended assessment) as the date of that
notice.
Subdivision 143-C - Former
indexed FEE-HELP/OS-HELP
debts
Clause 143-10 Working out a
former indexed FEE-HELP/OS-HELP debt
Subclause 143-10(1) provides
that a person’s former indexed FEE-HELP/OS-HELP debt, in
relation to the person’s accumulated FEE-HELP/OS-HELP debt for a financial
year to which subsection 143-10(1) applies, is worked out by multiplying the
person’s former unindexed FEE-HELP/OS-HELP debt in relation to the
financial year by the sum of the HELP debt indexation factor for 1 June in that
financial year and the factor of 0.035.
Subclause 143-10(2) provides that
subsection 143-10(1) applies to a financial year if it is the financial year
during which the person first incurred any FEE-HELP debt or OS-HELP debt
(whether or not that debt that has been repaid) or it is any of the 9 financial
years following that financial year.
Subclause 143-10(3) provides that a
person’s former indexed FEE-HELP/OS-HELP debt, in relation
to the person’s accumulated FEE-HELP/OS-HELP debt for a financial year to
which subsection 143-10(1) does not apply is worked out by multiplying the
person’s former unindexed FEE-HELP/OS-HELP debt in relation to the
financial year by the HELP debt indexation factor for 1 June in that financial
year.
Subdivision 143-D -
Accumulated FEE-HELP/OS-HELP
debts
Clause 143-15 Working out an
accumulated FEE-HELP/OS-HELP debt
Subclause 143-15(1) provides that a
person’s accumulated FEE-HELP/OS-HELP debt, for a financial
year is worked out as follows:
where:
FEE-HELP and OS-HELP
debt repayments is the sum of all of the voluntary repayments (if any)
paid, on or after 1 July in the preceding financial year and before the next 1
June, in reduction of the HELP debts incurred on or after 1 July in the
preceding financial year that are not HECS-HELP debts.
FEE-HELP and
OS-HELP debts incurred is the sum of the amounts of all of the FEE-HELP
debts (if any) and OS-HELP debts (if any) that the person incurred during the
first 6 months of the financial year.
former accumulated
FEE-HELP/OS-HELP debt is the person’s former indexed
FEE-HELP/OS-HELP debt in relation to that accumulated FEE-HELP/OS-HELP
debt.
Subclause 143-15(2) provides that the person incurs the accumulated
FEE-HELP/OS-HELP debt on 1 June in the financial year.
Subclause
143-15(3) provides that the first financial year for which a person can have an
accumulated FEE-HELP/OS-HELP debt is the financial year starting on 1 July
2005.
Clause 143-20 Rounding of
amounts
Provides that if, apart from section 143-20, a person’s
accumulated FEE-HELP/OS-HELP debt would be an amount consisting of a number of
whole dollars and a number of cents, the number of cents is disregarded. In
addition if, apart from section 143-20, a person’s accumulated
FEE-HELP/OS-HELP debt would be an amount of less than one dollar, the
person’s accumulated FEE-HELP/OS-HELP debt is taken to be
zero.
Clause 143-25 Accumulated
FEE-HELP/OS-HELP debt discharges earlier debts
Subclause 143-25(1)
provides that the accumulated FEE-HELP/OS-HELP debt that a person incurs on 1
June in a financial year discharges (or discharges the unpaid part of) any
FEE-HELP debt or OS-HELP debt that the person incurred during the calendar year
preceding that day and any accumulated FEE-HELP/OS-HELP debt that the person
incurred on the preceding 1 June.
Subclause 143-25(2) provides that
nothing in subsection 143-25(1) affects the application of Division 137,
Subdivision 143-B or 143-C or section
143-15.
Clause 143-30 Accumulated
FEE-HELP/OS-HELP debt discharged by death
Provides that, upon the
death of a person who has an accumulated FEE-HELP/OS-HELP debt, the accumulated
FEE-HELP/OS-HELP debt is taken to be discharged. Section 143-30 does not affect
any compulsory repayment amounts required to be paid in respect of the
accumulated FEE-HELP/OS-HELP debt, whether or not those amounts were assessed
before the person’s death.
Part
4-2 - Discharge of
indebtedness
Division 148 -
Introduction
Clause 148-1 What this
Part is about
A person who owes a debt to the Commonwealth under this
Chapter may make voluntary repayments. In some cases these may attract a 10%
repayment bonus. The person is required to make repayments, of amounts based on
his/ her income if that income is above a particular amount. The Commissioner
of Taxation makes assessments of what amounts are to be repaid and the amounts
are collected in the same way as amounts of income
tax.
Division 151 - How is indebtedness
voluntarily discharged?
Clause 151-1
Voluntary repayments in respect of debts
Provides that a person may
at any time make a payment in respect of a debt that the person owes to the
Commonwealth under Chapter 4. The payment must be made to the Commissioner for
Taxation.
Clause 151-5 Voluntary
repayment bonus relating to HECS-HELP debts
Subclause 151-5(1)
provides that the effect that a payment under section 151-1 has on a HECS-HELP
debt or an accumulated HECS-HELP debt that a person (the debtor)
owes to the Commonwealth under Chapter 4 is the effect specified in subsection
151-5(2) or (3) if the amount of the payment is $500 or more or sufficient to be
taken under subsection 155-5(2) to pay off the total debt and the payment is in
respect of one or more HECS-HELP debts or an accumulated HECS-HELP
debt.
Subclause 151-5(2) provides that the debtor is taken to pay off the
total debt if the payment in respect of the debt is equal to, or exceeds, an
amount worked out as follows:
Subclause 151-5(3)
provides that if the debtor is not taken to pay off the total debt, the
outstanding amount of the debt is to be reduced by an amount worked out as
follows:
Subclause 151-5(4) provides that if an
amount worked out using the formula in subsection 151-5(2) or (3) is an amount
made up of dollars and cents, the amount must be rounded down to the nearest
dollar.
Clause 151-10 Application of
voluntary repayments
Provides that any money a person pays under
Division 151 to meet the person’s debts to the Commonwealth under Chapter
4 is to be applied in payment of those debts as the person directs at the time
of the payment. If the person has not given any directions, or the directions
given do not adequately deal with the matter, any money available is to be
applied as follows:
• first, in discharge or reduction of any
accumulated HECS-HELP debt of the person;
• secondly, in discharge or
reduction of any accumulated FEE-HELP/OS-HELP debt of the
person;
• thirdly, in discharge or reduction of any HECS-HELP debt of
the person or, if there is more than one such debt, those debts in the order in
which they were incurred;
• fourthly, in discharge or reduction of any
FEE-HELP debt or OS-HELP debt of the person or, if there is more than one such
debt, those debts in the order in which they were
incurred.
Clause 151-15 Refunding of
payments
Provides that if a person pays an amount to the Commonwealth
under Division 151 and the amount exceeds the sum of the total amount that the
person owed to the Commonwealth under Chapter 4 and the total amount of the
person’s primary tax debts (within the meaning of Part IIB of the
Taxation Administration Act 1953), then the Commonwealth must refund to
the person an amount equal to that excess.
Under taxation legislation,
interest is payable if the Commonwealth is late in paying refunds [Pt IIIA,
Taxation (interest on Overpayments and Early Payments) Act
1983].
Division 154 - How is
indebtedness compulsorily
discharged?
Subdivision 154-A -
Liability to repay amounts
Clause
154-1 Liability to repay amounts
Sub-clause 154-1(1) provides that
if a person’s repayment income for an income year exceeds the minimum
repayment income for the income year and on 1 June immediately preceding the
making of an assessment in respect of the person’s income of that income
year the person had an accumulated HECS-HELP debt, an accumulated
FEE-HELP/OS-HELP debt, or both, then the person is liable to pay to the
Commonwealth in accordance with Division 154 the amount worked out under section
154-20 in reduction of the person’s repayable debt.
Sub-clause
154-1(2) provides that a person is not liable under section 154-1 to pay an
amount for an income year if, under section 8 of the Medicare Levy Act
1986 no Medicare levy is payable by the person on the person’s taxable
income for the income year or the amount of the Medicare levy payable by the
person on the person’s taxable income for the income year is
reduced.
Clause 154-5 Repayment
income
Subclause 154-5(1) provides that a person’s
repayment income for an income year is an amount equal to the sum
of:
• the person’s taxable income for the income year;
and
• if a person has a net rental property loss for the income year,
the amount of that net rental property loss; and
• if the person is an
employee (within the meaning of the Fringe Benefits Tax Assessment Act
1986) and has a reportable fringe benefits total (within the meaning of that
Act) for the income year - the reportable fringe benefits total for the income
year; and
• if the person has exempt foreign income for the income
year—the amount of that exempt foreign income.
Subclause 154-5(2)
provides that the person’s rental property loss is the
amount (if any) by which the amount of the person’s allowable deductions
under the Income Tax Assessment Act 1997 in respect of rental property in
Australia exceeds the person’s gross rental property
income.
Subclause 154-5(3) provides that for the purposes of subsection
154-5(2), any rental property income that the person derives as a member of a
partnership is to be disregarded.
Subclause 154-5(4) provides that the
person’s exempt foreign income is the total amount (if any)
by which the person’s income that is exempt from tax under section 23AF or
23AG of the Income Tax Assessment Act 1936 exceeds the total amount of
losses and outgoings that the person incurs in deriving that exempt
income.
Subclause 154-5(5) provides that, for the purposes of subsection
154-5(5), any capital losses and outgoings are to be
disregarded.
Clause 154-10 Minimum
repayment income
Provides that the minimum repayment
income for the 2005-06 income year is $30,000 and the minimum
repayment income for a later income year – is that amount as
indexed under section 154-25..
Clause
154-15 Repayable debt for an income year
Subclause 154-15(1)
provides that a person’s repayable debt for an income year
is the sum of the person’s accumulated HECS-HELP debt (if any) and the
person’s accumulated FEE-HELP/OS-HELP debt (if any) referred to in
paragraph 154-15(1)(b) in relation to that income year or, if one or more
amounts have been paid in reduction of those debts (or have been assessed under
section 154-35 to be payable in respect of those debts), the amount (if any)
remaining after deducting from the sum of those debts the amount (or sum of the
amounts) so paid or assessed to be payable.
Subclause 154-15(2) provides
that a reference in paragraph 154-15(1)(b) to an amount assessed to be payable
is, if the amount has been increased or reduced by an amendment of the relevant
assessment, a reference to the increased amount or the reduced
amount.
Subdivision 154-B - Amounts
payable to the Commonwealth
Clause
154-20 Amounts payable to the Commonwealth
Creates a table setting
out “applicable percentages” for the purposes of calculating the
amount that a person is liable to pay to the Commonwealth under section 154-1 in
respect of an income year. The table lists 9 items (column 1), a description of
various repayment incomes for a person (column 2) and the percentage applicable
to each repayment income (column 3). Clause 154-20 provides that the amount
that a person is liable to pay under section 154-1 in respect of an income year,
is an amount equal to so much of the person’s repayable debt for the
income year as does not exceed the percentage of the person’s repayment
income that is applicable under the
table.
Clause 154-25
Indexation
Subclause 154-25(1) provides that, for the 2006-07 income
year or a later income year, the minimum repayment income and the amounts
referred to in paragraph (a) of the second column of items 1 to 8 of the table
in section 154-20 are indexed by multiplying the corresponding amounts for the
2005-06 income year by the amount worked out using the formula:
Subclause 154-25(2) provides that AWE for an income year
is the number of dollars in the sum of the average weekly earnings for all
employees (total earnings, seasonally adjusted) for the reference period in the
quarter ending on 31 December immediately before the income year, (as published
by the Australian Statistician) and the average weekly earnings for all
employees for the reference period in each of the 3 quarters immediately before
that quarter (as published by the Australian Statistician).
Subclause
154-25(3) provides that the reference period in a particular
quarter in a year is the period described by the Australian Statistician as the
pay period ending on or before a specified day that is the third Friday of the
middle month of that quarter.
Subclause 154-25(4) provides that if an
amount worked out under section 154-25 is an amount made up of dollars and cents
the amount must be rounded down to the nearest
dollar.
Clause 154-30 Publishing
indexed amounts
Provides that before the start of the 2006-07 income
year (or a later income year) the Minister must publish the minimum repayment
income and the amounts referred to in paragraph (a) of the second column of
items 1 to 8 of the table in section 154-20, for that income year in the
Gazette.
Subdivision 154-C -
Assessments
Clause 154-35
Commissioner may make assessments
Provides that, relying on any
information in the Commissioner’s possession (whether from a return or
otherwise), the Commissioner may make an assessment of the sum of the
person’s accumulated HECS-HELP debt and the person’s accumulated
FEE-HELP/OS-HELP debt on 1 June immediately before the making of the assessment
and the amount required to be paid in respect of that sum under section
154-1.
Clause 154-40 Notification of
notices of assessment of tax
Provides that if:
(a) the
Commissioner is required to serve on a person a notice of assessment in respect
of the person’s income of an income year under section 174 of the
Income Tax Assessment Act 1936; and
(b) the Commissioner has made (in
respect of the person) an assessment under section 154-35 of this Act of the
amounts referred to in that section; and
(c) notice of the assessment under
that section has not been served on the person;
then notice of the assessment
under that section may be served by specifying the amounts concerned in the
notice referred to in paragraph
(a).
Clause 154-45 Commissioner may
defer making assessments
Subclause 154-45(1) provides that a person
may apply in writing to the Commissioner for deferral of the making of an
assessment in respect of the person under section 154-35.
Subclause
154-45(2) provides that the application must specify the income year for which
the deferral is being sought and the reasons for seeking the
deferral.
Subclause 154-45(3) provides that the income year specified in
the application must be the income year in which the person makes the
application, the immediately preceding income year or the immediately succeeding
income year.
Subclause 154-54(4) provides that, on application by a
person under section 154-45, the Commissioner may defer making an assessment in
respect of the person under section 154-35 if the Commissioner is of the opinion
that if the assessment were made, payment of the assessed amount would either
cause serious hardship to the person, or there are other special reasons that
make it fair and reasonable to defer making the assessment.
Subclause
154-45(5) provides that the Commissioner may defer making the assessment for any
period that he/she thinks appropriate.
Subclause 154-45(6) provides that
as soon as practicable after an application is made under section 154-45 the
Commissioner must consider the matter to which the application relates and
notify the applicant of the Commissioner’s decision on the
application.
Clause 154-50
Commissioner may amend assessments
Subclause 154-50(1) provides that
a person may apply in writing to the Commissioner for an amendment of an
assessment made in respect of the person under section 154-35 so that the amount
payable under the assessment is reduced or no amount is payable under the
assessment.
Subclause 154-50(2) provides that the application must be
made no later than 2 years after the end of the income year to which the
assessment relates or must specify the reasons justifying a later
application.
Subclause 154-50(3) provides that, on application by a
person under section 154-50, the Commissioner may amend an assessment made in
respect of the person under section 154-35 so that the amount payable under the
assessment is reduced or no amount is payable under the assessment if the
Commissioner is of the opinion that payment of the assessed amount has caused
(or would cause) serious hardship to the person or there are other special
reasons that make it fair and reasonable to make the amendment.
Subclause
154-50(4) provides that, as soon as practicable after an application is made
under section 154-50, the Commissioner must consider the matter to which the
application relates and notify the applicant of the Commissioner’s
decision on the application.
Clause
154-55 Higher education providers etc. to provide information to
Commissioner
Provides that a higher education provider must give to
the Commissioner (if asked by the Commissioner to do so) any information that is
in its possession relating to students who have applied for HECS-HELP assistance
or FEE-HELP assistance for a unit of study or OS-HELP assistance in relation to
a period of 6 months and that the Commissioner reasonably requires for the
purposes of Chapter 4. If asked by the Commissioner to do so, Open Learning
Australia must also give the Commissioner any information that is in its
possession relating to students who have applied for FEE-HELP assistance for a
unit of study and that the Commissioner reasonably requires for the purposes of
Chapter 4.
Subdivision 154-D -
Application of tax
legislation
Clause 154-60 Returns,
assessments, collection and recovery
Provides that, subject to Part
4-2 of the Act, Part IV and Division 1 of Part VI of the Income Tax
Assessment Act 1936 and Part 4-15 in Schedule 1 to the Taxation
Administration Act 1953 apply (so far as they are capable of application) in
relation to a compulsory repayment amount of a person as if it were income tax
assessed to be payable by a taxpayer by an assessment made under Part IV of the
Income Tax Assessment Act
1936.
Clause 154-65 Charges and
civil penalties for failing to meet obligations
Subclause 154-65(1)
provides that Part 4-25 in Schedule 1 to the Taxation Administration Act
1953 has effect as if any compulsory repayment amount of a person were
income tax payable by the person in respect of the income year in respect of
which the assessment of that debt was made, and Chapter 3 of this Act and
Chapter 4 were income tax laws.
Subclause 154-65(2) provides that
subsection 154-65(1) does not have the effect of making a person liable to a
penalty for any act or omission that happened before the commencement of
subsection 154-65(2).
Clause 154-70
Pay as you go (PAYG) withholding
Provides that Part 2-5 (other than
section 12-55 and Subdivisions 12-E, 12-F and 12-G) in Schedule 1 to the
Taxation Administration Act 1953 applies (so far as it is capable of
application) in relation to the collection of amounts of a person’s
compulsory repayment amount as if the compulsory repayment amount were income
tax.
Clause 154-75 Provisional
tax
Provides that Division 3 of Part VI of the Income Tax
Assessment Act 1936 applies (so far as it is capable of application) in
relation to the collection of a person’s compulsory repayment amount as if
the compulsory repayment amount were income
tax.
Clause 154-80 Pay as you go
(PAYG) instalments
Provides that Division 45 in Schedule 1 to the
Taxation Administration Act 1953 applies (so far as it is capable of
application) in relation to the collection of a person’s compulsory
repayment amount as if the compulsory repayment amount were income
tax.
Chapter 5 -
Administration
Division 159 -
Introduction
Clause 159-1 What this
Chapter is about
Part 5-1 deals with matters to do with payments made
by the Commonwealth under this Act.
Part 5-2 contains the administrative
requirements that are imposed on higher education providers.
Part 5-3
provides for some documents to be given between higher education providers and
students to be given electronically.
Part 5-4 deals with the protection of
personal information gained in the administration of Chapters 3 and 4.
Part
5-5 deals with the tax file numbers of students.
Part 5-6 provides for the
indexation of certain amounts.
Part 5-7 deals with reconsideration and
administrative review of certain decisions made under this
Act.
Clause 159-5 The Administrative Guidelines
The
administrative requirements are also dealt with in the Administrative
Guidelines. The provisions of Part 5-2 may indicate when a particular matter is
or may be dealt with in these Guidelines.
Part 5-1 - Payments by the
Commonwealth
Division 164 - Payments by
the Commonwealth
Clause 164-1 What
this Part is about
Part 5-1 contains general provisions relating to
how the Commonwealth makes payments under the Act to higher education providers
and other bodies.
Clause 164-5 Time
and manner of payments
Provides that amounts payable by the
Commonwealth to a higher education provider or other body under this Act are to
be paid in such a way (including payment in instalments) as the Minister
determines and that these amounts are to be paid by the Commonwealth to a higher
education provider or other body under this Act at such times as the Secretary
determines.
Clause 164-10
Advances
Provides that the Minister may make arrangements for
advances to a higher education provider or other body on account of an amount
that is expected to become payable under a provision of the Act to the provider
or other body. The conditions that would be applicable to a payment of the
amount under that provision are applicable to any such advance. Section 164-10
does not affect the Minister’s power to determine under section 33-40 that
an advance is payable to a higher education provider.
Clause
164-15 Overpayments
Provides that an overpayment to a higher
education provider may offset a future payment under the Act, or be recovered as
a debt due to the Commonwealth.
Clause
164-20 Rounding of amounts
Provides that if an amount payable under
the Act is an amount made up of dollars and cents, the amount must be rounded
down to the nearest dollar.
Clause
164-25 Appropriation
Provides that amounts payable by the
Commonwealth under the Act are payable out of the Consolidated Revenue Fund,
which is appropriated accordingly.
Part
5-2 - Administrative requirements on higher education
providers
Division 169 -
Introduction
Clause 169 What this Part
is about
This Part imposes a number of administrative requirements on
higher education providers. It is a quality and accountability requirement that
a higher education provider comply with these administrative
requirements.
Division 169 - What
are the requirements relating to
notices?
Clause 169-5
Notices
Provides that a higher education provider must give such
notices as are required by the Administrative Guidelines to a person who is
enrolled with the provider for a unit of study and who is seeking Commonwealth
assistance under this Act for the unit or is a Commonwealth supported student
for the unit. A notice must contain the information set out in the
Administrative Guidelines and must be given within the period set out in those
guidelines.
Provides that a notice under section 169-5 is given only for
the purpose of providing information to a person. Any liability or entitlement
of a person under the Act (including Student Learning Entitlement) is not
affected by the failure of a higher education provider to give a notice under
section 169-5, the failure of a higher education provider to give such a notice
by the date required under the Administrative Guidelines or by the notice
containing an incorrect
statement.
Clause 169-10 Correction of
notices
Provides that if, after giving a person a notice under
section 169-5, a higher education provider is satisfied that a material
particular in the notice was not (or has ceased to be) correct, the provider
must give a further written notice to the person setting out the correct
particular.
Subclause 169-10(2) provides that if a person receives a
notice from a higher education provider under section 169-5 and the person
considers that the notice was not (or has ceased to be) correct in a material
particular, then the person may give the provider a written request for the
notice to be corrected in respect of that particular.
Subclause 169-10(3)
provides that the request must be given to an appropriate officer of the
provider either:
(a) within 14 days after the day the notice was given;
or
(b) within such further period as the provider allows for the giving of
the request.
Subclause 169-10(4) provides that the request must specify
the particular in the notice that the person considers is incorrect and the
reasons the person has for considering the particular is
incorrect.
Subclause 169-10(5) provides that the making of the request
does not affect any liability or entitlement of the person under the Act
(including student learning entitlement).
Subclause 169-10(6) provides
that if a higher education provider receives a request under section 169-10 the
provider must, as soon as practicable, determine the matter to which the request
relates, notify the person of the provider’s determination and if the
provider determines that a material particular in the notice was or has ceased
to be incorrect, give a further notice under section
169-10.
Clause 169-15 Charging student
contribution amounts and tuition fees
Subclause 169-15(1) provides
that a higher education provider must require any student who is a Commonwealth
supported student in relation to a unit of study, is enrolling in the unit with
the provider and is not an exempt student for the unit to pay the provider the
student contribution amount for the unit and must not require the student to pay
any tuition fee for the unit.
Subclause 169-15(2) provides that a higher
education provider must require any student who is not a Commonwealth supported
student in relation to a unit of study, is enrolling in the unit with the
provider and is not an exempt student for the unit to pay the provider the
tuition fee for the unit. If the student is a domestic student, the higher
education provider must not require the student to pay any other tuition fee or
any student contribution amount for the unit.
Subclause 169-15(3)
provides that a higher education provider must repay to a person the amount of
any payment of a student contribution amount or a tuition fee for a unit of
study that the person made on or before the census date for the unit if the
person is no longer enrolled in the unit at the end of the census
date.
Clause 169-20 Exempt
students
Subclause 169-20(1) provides that the Minister may determine
that all students or students of a specified kind are exempt from payment of
student contribution amounts, tuition fees or both for any units of study
undertaken as part of a specified course of study or a course of study of a
specified kind. Such a student or a student of such a kind is an exempt
student.
Subclause 169-20(2) provides that the Administration
Guidelines may provide that in all circumstances (or in the circumstances
specified in those guidelines) all students are exempt from payment of student
contribution amounts and tuition fees for any units of study that wholly consist
of work experience in industry. A student is (or is in those specified
circumstances) an exempt student for such units.
Subclause
169-20(3) provides that a student is an exempt student for all the
units of study undertaken as part of a course of study if the higher education
provider with which the student is enrolled in the course has awarded the
student an exemption scholarship for the course and the provider awarded the
scholarship in accordance with any requirements specified in the Administration
Guidelines.
Subclause 169-20(4) provides that without limiting the
matters that may be specified in the Administration Guidelines for the purposes
of paragraph 169-20(3)(b)[ which provides that one of the limbs for determining
that a student is an exempt student for all the units of study
undertaken as part of a course of study is that the provider awarded a
scholarship in accordance with any requirements specified in the Administration
Guidelines] those matters may include one or both of the
following:
• the maximum number of exemption scholarships that a
particular higher education provider may award in respect of a
year;
• which students are eligible to receive exemption
scholarships.
Clause 169-25
Determining census dates and EFTSL values
Provides that a higher
education provider must, for each unit of study it provides or proposes to
provide during a year, determine for that year a particular date to be the
census date for the unit and the EFTSL value for the unit. If a higher
education provider provides the same unit over different periods, the unit is
taken to be a different unit of study in respect of each period. Therefore the
provider will have to determine a separate census date and a separate EFTSL
value in respect of each period.
A date determined under section 169-25
must not occur less than 20% of the way through the period during which the unit
is undertaken. The provider must publish the census date and the EFTSL value
for the unit in the manner specified in the Administration Guidelines.
Clause 169-30 Communications with the
Commonwealth concerning students etc.
Provides that, in
communications under (or for the purposes of) the Act between the Commonwealth
and a higher education provider concerning a person who is enrolled (or seeking
to enrol) in a unit of study with the provider and has indicated that he/she is
seeking Commonwealth assistance under the Act for the unit or is a Commonwealth
supported student for the unit, then the provider must use any identifier for
that person that the Secretary has indicated must be used in such
communications.
Part 5-3 -
Electronic communications
Division 174
– Electronic
communications
Clause 174 What this
Part is about
Provides that certain documents that the Act requires
or permits to be given between students and higher education providers may be
transmitted electronically.
Clause
174-5 Electronic communications from students to higher education
providers
Subclause 174-5(1) provides that if a provision of the Act
requires or permits a document (the document) that is to be given
by a student to a higher education provider and the student gives the document
to the provider by electronic communication using an information system in
respect of which there is a declaration by the provider under subsection
174-5(2); and a declaration by the Minister under subsection 174-5(3), then the
student complies with the provision so far as it requires or permits the student
to give the document to the provider.
Subclause 174-5(2) provides that a
higher education provider may declare (in writing given to the Minister) that a
specified information system may be used by any student to give the provider a
document permitted or required by the Act to be given by the student to the
provider.
Subclause 174-5(3) provides that the Minister may declare (in
writing given to a higher education provider) that an information system
declared by the provider under subsection 174-5(2) meets the
Administration Guidelines referred to in subsection 174-5(4).
Subclause
174-5(4) provides that the Administration Guidelines may set out the
requirements relating to information systems that may be used by students to
give higher education providers documents that they are required or permitted to
give to higher education providers under the
Act.
Clause 174-10 Electronic
communication by students of students’ signatures
Subclause
174-10(1) provides that if a provision of the Act requires a student to sign a
document (the document) that is to be given to a higher education
provider and the student’s identity and approval of the document are made
apparent by a method in respect of which there is a declaration by the provider
under subsection 174-10(2) and there is also a declaration by the Minister under
subsection 174-10(3), then the student complies with the
requirement.
Subclause 174-10(2) provides that a higher education
provider may declare (in writing given to the Minister) that, in connection with
a document required to be signed by a student, a specified method may be used to
indicate the student’s identity and approval of the
document.
Subclause 174-10(3) provides that the Minister may declare (in
writing given to a higher education provider) that a method declared by
the provider under subsection 174-10(2) meets the Administration Guidelines
referred to in subsection 174-10(4).
Subclause 174-10(4) provides that
the Administration Guidelines may set out requirements relating to methods that
may be used by students to identify themselves and indicate their approval of
documents, in connection with documents that are required to be signed by
students and given to a higher education
provider.
Clause 174-15 The Effects of
Sections 174-5 and 174-10
Provides that sections 174-5 and 174-10
only operate at a time when sections 9, 10 and 11 of the Electronic
Transactions Act 1999 do not apply to the requirements under this Act for a
student to give a document to a higher education provider or sign a document
that is to be given to a higher education provider or a permission under this
Act for a student to give a document to a higher education provider. An
exemption from the operation of a section of the Electronic Transactions
Act1999 may be given under regulations made under that Act.
Subclause
174-15(2) provides that neither section 174-5 nor section 174-10 limit how a
student may comply with a provision of the
Act.
Clause 174-20 Notices
electronically communicated from higher education providers to
students
Provides that if a higher education provider gives a student
a notice that the provider is required to give in writing under section 169-5,
the notice is given using an information system to which the student has access
provided by the provider in accordance with the Administration Guidelines
referred to in section 174-25 and the student consents to receiving notices
under section 169-5 by way of electronic communication, then the requirements of
section 9 of the Electronic Transactions Act 1999 are taken to have been
met. This means that the requirement to give notice in writing is met by the
electronic communication of the
notice.
Clause 174-25 Guidelines may
deal with electronic communications from higher education providers to
students
Provides that the Administration Guidelines may set out
requirements relating to higher education providers providing students with
access to information systems that higher education providers use to give
students notices under section
169-5.
Part 5-4 - Protection of
personal information
Division 179 -
Protection of personal
information
Clause 179-1 What this
Part is about
An officer who discloses, copies or records personal
information otherwise than in the course of official employment, or causes
unauthorised access to or modification of personal information, commits an
offence.
Clause 179-5 Meaning of personal
information
Defines Personal information as
information about an individual whose identity is apparent, or can reasonably be
ascertained from the information and is obtained or created by an officer for
the purposes of Chapters 3 and
4.
Clause 179-10 Use of personal
information
Subclause 179-10(1) provides that an officer commits an
offence punishable by imprisonment for 2 years if:
• he/she either
discloses information or makes a copy or other record of information;
and
• the information is personal information; and
• the
information was acquired by the officer in the course of the officer’s
official employment; and
• the disclosure did not occur, or the copy or
record was not made, in the course of that official
employment.
Clause 179-15 Meanings of
officer etc. and official employment
Defines
officer, Commonwealth officer, officer of a
higher education provider and official employment (of an
officer) for the purposes of the
Act.
Clause 179-20 When information is
disclosed in the course of official employment
Provides that for the
purposes of paragraph 540-3(1)(d) the following disclosures are taken to be
disclosures in the course of an officer’s official
employment:
• if a Commonwealth officer discloses personal information
to another Commonwealth officer to assist that officer in the performance of the
officer’s duties arising under this Act;
• if an officer
discloses personal information to the Administrative Appeals Tribunal in
connection with a reviewable decision;
• if a Commonwealth officer
discloses personal information to an officer of a higher education provider to
assist the provider officer in the performance of the provider officer’s
duties arising under this Act
• if an officer of a higher education
provider discloses personal information to a Commonwealth officer to assist the
Commonwealth officer in his or her official
employment.
Clause 179-25 Commissioner
may disclose information
Provides that, despite anything in an Act of
which the Commissioner has the general administration, the Commissioner (or a
person authorised by the Commissioner) may communicate protected information to
an officer for use by that officer in the course of the officer’s official
employment.
Clause 179-30 Oath or
declaration to protect information
Provides that an officer must, if
and when required by the Secretary or the Commissioner to do so, make an oath or
declaration to protect information in accordance with Part 5-4. The Secretary
or the Commissioner may determine, in writing the form of the oath or
declaration and the manner in which the oath or declaration must be
made.
Clause 179-35 Unauthorised access to, or modification of,
personal information
Provides that a person commits an offence
punishable by imprisonment for 2 years if:
• he/she causes unauthorised
access to or modification to personal information that is held in a computer to
which access is restricted by an access control system; and
• he/she
intends to cause the access or modification; and
• he/she knows that
the access or modification is unauthorised; and
• the personal
information is held in a computer of a higher education provider or held on
behalf of a provider.
Part 5-5 -
Tax file numbers
Division 184 -
Introduction
Clause 184-1 What this
Part is about
Requirements relating to students’ tax file
numbers apply to assistance under Chapter 3 that gives rise to HELP debts. The
Commissioner may notify higher education providers of matters relating to tax
file numbers. Higher education providers have obligations relating to notifying
students about tax file number requirements and to cancelling the enrolment of
students who do not have tax file
numbers.
Division 187 - What are the
tax file number requirements for assistance under Chapter
3?
Clause 187-1 Meeting the tax file
number requirements
Subclause 187-1(1) provides that a student who is
enrolled with (or proposes to enrol with) a higher education provider
meets the tax file number requirements for assistance under
Chapter 3 if the student notifies his/her tax file number to an appropriate
officer of the provider and the provider is satisfied (in accordance with
subsection 187-1(4)) that this number is a valid tax file number or the student
gives the officer a certificate from the Commissioner stating that the student
has applied to the Commissioner asking him/her to issue a tax file number to the
student.
Subclause 187-1(2) provides that if the student is seeking
HECS-HELP assistance or FEE-HELP assistance for a unit of study, he/she does not
meet the tax file number requirements for the assistance unless he/she complies
with subsection 187-1(1) on or before the census date for the
unit.
Subclause 187-1(3) provides that a notification under paragraph
187-1(1)(a) [if the student notifies their tax file number to the appropriate
officer of the provider and the provider is satisfied (in accordance with
subsection 187-1(4)) that this number is a valid tax file number] may be
included in a request for Commonwealth assistance that the student has given to
the provider in relation to the unit of study for which the assistance is sought
(or any other unit of study) or the course of study of which the unit (or the
other unit) forms a part, or any other course of study.
Subclause
187-1(4) provides that the Commissioner may issue guidelines about the
circumstances in which a higher education provider is or is not to be satisfied
that a number is a valid tax file number for the purposes of paragraph
187-1(1)(a).
Subclause 187-1(5) provides that a certificate under
paragraph 187(1)(b) [the student gives the officer a certificate from the
Commissioner stating that the student has applied to the Commissioner asking
him/her to issue a tax file number to the student] must be in a form approved by
the Commissioner.
Division 190 - In
what circumstances can higher education providers be notified of tax file number
matters?
Clause 190-1 When tax file
numbers are issued etc.
Provides that the Commissioner may give a
higher education provider written notice of the tax file number of a student who
is enrolled in a course of study with the provider if the Commissioner issues
the tax file number to the student or refuses to issue a tax file number to the
student on the ground that the student already has a tax file
number.
Clause 190-5 When tax file
numbers are altered
Provides that the Commissioner may give a higher
education provider written notice of the tax file number of a student who is
enrolled in a course of study with the provider if the Commissioner issues a new
tax file number to the student in place of a tax file number that has been
withdrawn. The new number is taken to be the number that the student notified
to the provider.
Clause 190-10 When
tax file numbers are incorrectly notified—students with tax file
numbers
Provides that if the Commissioner is satisfied that the tax
file number a student has notified to a higher education provider has been
cancelled or withdrawn since the notification was given (or is otherwise wrong)
and that the student has a tax file number, then the Commissioner may give to
the provider written notice of the incorrect notification and of the
student’s tax file number. That number is taken to be the number that the
student notified to the
provider.
Clause 190-15 When tax file
numbers are incorrectly notified—students without tax file
numbers
Subclause 190-15(1) provides that if the Commissioner is
satisfied that the tax file number a student notified to a higher education
provider has been cancelled since the notification was given (or is for any
other reason not the student’s tax file number) and the Commissioner is
not satisfied that the student has a tax file number, then the Commissioner may
give to the provider a written notice informing the provider
accordingly.
Subclause 190-15(2) provides that the Commissioner must give
a copy of any notice under subsection 190-15(1) to the student concerned,
together with a written statement of the reasons for the decision to give the
notice.
Clause 190-20 When
applications are refused or tax file numbers are cancelled
Provides
that if the Commissioner refuses a student’s application for the issue of
a tax file number or cancels a tax file number issued to a student, then the
Commissioner may give to a higher education provider with which the student is
enrolled in a course of study a written notice informing the provider
accordingly. The written notice must include a statement of the reason for the
decision to give the notice (see
subsection190-20(2)).
Division 193 -
What are the requirements on higher education providers relating to tax file
numbers?
Clause 193-1 Giving
information about tax file number requirements
Subclause 193-1(1)
provides that a higher education provider must notify a person in writing how to
meet the tax file number requirements if:
• the person is enrolled in a
unit of study with the provider; and
• the person has (on or before the
census date for the unit) completed and signed a request for Commonwealth
assistance in relation to the unit or in relation to the course of study of
which the unit forms a part; and
• in that request, the person requests
HECS-HELP assistance or FEE-HELP assistance for the unit or the course;
and
• the request does not include a number that purports to be the
person’s tax file number.
Subclause 193-1(2) provides that the
provider must notify the person under subsection 193-1(1) on or before the
census date for the unit or within 7 days after the person gives the provider
the request for Commonwealth assistance, whichever is earlier.
Subclause
193-1(3) provides that a higher education provider must notify a person in
writing how to meet the tax file number requirements if:
• the person
is enrolled in a course of study with the provider; and
• the person
has, before receiving OS-HELP assistance, completed and signed a request for
Commonwealth assistance; and
• in that request, the person requests
OS-HELP assistance in relation to a period of 6 months; and
• the
request does not include a number that purports to be the person’s tax
file number.
Subclause 193-1(4) provides that the provider must notify
the person under subsection 193-1(3) within 7 days after the person gives the
provider the request for Commonwealth assistance.
Subclause 193-1(5)
provides that section 193-1 does not apply to the person if the person (in the
request for Commonwealth assistance) requests HECS-HELP assistance, FEE-HELP
assistance or OS-HELP assistance, but the person is not entitled to the
assistance or the person (in the request for Commonwealth assistance) requests
HECS-HELP assistance in relation to a unit of study but one or more up-front
payments for the unit have been made totalling 80% of the student contribution
amount for the unit.
Clause 193-5
Cancelling enrolments of people without tax file numbers
Subclause
193-5(1) provides that a higher education provider must cancel a person’s
enrolment in a unit of study with the provider if the provider receives notice
under section 190-15 or section 190-20 to the effect that the person does not
have (or no longer has) a tax file number and at the end of 28 days after the
provider receives that notice the provider has not been notified of a number
that the provider is satisfied (in accordance with subsection 193-5(3)) is a
valid tax file number.
Subclause 193-5(2) provides that the provider must
not accept a further enrolment of the person in that unit.
Subclause
193-5(3) provides that, in deciding whether it is satisfied that a number is a
valid tax file number for the purposes of paragraph 193-5(1)(b) [where at the
end of 28 days after the provider receives a notice under section 190-5 or
190-20 to the effect that the person does not have (or no longer has) a tax file
number the provider has not been notified of a number that the provider is
satisfied is a valid tax file number], a higher education provider must comply
with the guidelines issued by the Commissioner under subsection
187-1(4).
Subclause 193-5(4) provides that a higher education provider
must comply with any requirements (set out in guidelines issued by the
Commissioner) relating to procedures for informing persons who may be affected
by subsection 193-5(1) or (3) of the need to obtain a valid tax file
number.
Part 5-6 -
Indexation
Division 198 -
Indexation
Clause 198-1 What this Part
is about
Several amounts referred to in provisions of the Act are
indexed. This Part sets out how those amounts are
indexed.
Clause 198-5 The amounts that are
to be indexed
Creates a table setting out the amounts that are to be
indexed. The table lists 4 items (column 1), a description of the amounts
(column 2), refers to the relevant section of the Act (column 3) and lists the
first year of indexation for each (column
4).
Clause 198-10 Indexing
amounts
Provides that an amount is indexed on 1 January in the year
referred to in the table in section 198-5 as the first year of indexation in
relation to the amount and on 1 January of each subsequent year, by multiplying
it by the indexation factor for the relevant year. However an amount is not
indexed if its indexation factor is 1 or
less.
Clause 198-15
Indexation factor
Provides that the indexation
factor for the relevant year is:
The indexation factor
is worked out to 3 decimal places (rounding up if the fourth decimal place is 5
or more). For example, if the factor is 1.102795, it would be rounded up to
1.103.
Clause 198-20 Index
number
Provides that the index number, for a year
is the Higher Education Grants Index number for that year published by the
Minister in the Gazette. Publication may occur at any time, including
any time before the start of the
year.
Part 5-7 - Review of
decisions
Division 203 -
Introduction
Clause 203-1 What this
Part is about
Some decisions made under the Act are subject to
reconsideration and then review by the Administrative Appeals
Tribunal.
Division 206 - Which
decisions are subject to review?
Clause
206-1 Reviewable decisions etc.
Creates a table setting out the
reviewable decisions under the Act and the decision
maker (for the purposes of Division 206) in respect of each of those
decisions. The table lists 10 items (column 1), a description of the decision
(column 2), the provision of the Act under which the decision was made (column
3) and the decision maker for each (column 4).
Clause 206-5 Deadlines for making
reviewable decisions
Provides that if the Act provides for a person
to apply to a decision maker to make a reviewable decision, a period is
specified under the Act for giving notice of the decision to the applicant and
the decision maker has not notified the applicant of the decision within that
period, then the decision maker is taken (for the purposes of the Act) to have
made a decision to reject the
application.
Clause 206-10 Decision
maker must give reasons for reviewable decisions
Subclause 206-10(1)
provides that if the Act requires the decision maker to notify a person of the
making of a reviewable decision, the notice must include reasons for the
decision.
Subclause 206-10(2) provides that subsection 206-10(1) does not
affect an obligation to give reasons for a decision imposed on the decision
maker by any other law.
Division 209 -
How are decisions reconsidered?
Clause
209-1 Reviewer of decisions
Subsection 209-1(1) provides that the
reviewer of a reviewable decision is the Secretary if the decision
maker was a higher education provider acting on behalf of the Secretary. In
any other case the reviewer of a reviewable decision is the
decision maker (subject to subsection 209-1(2)).
Subsection 209-1(2)
provides that if a reviewable decision was made by a delegate of a decision
maker and the decision is to be reconsidered by a delegate of the decision
maker, then the delegate who reconsiders the decision must be a person who was
not involved in making the decision and occupies a position that is senior to
that occupied by any person involved in making the
decision.
Clause 209-5 Reviewer may
reconsider reviewable decisions
Subsection 209-5(1) provides that the
reviewer of a reviewable decision may reconsider the decision if the reviewer is
satisfied that there is sufficient reason to do so.
Subsection 209-5(2)
provides that the reviewer may reconsider the decision even if an application
for reconsideration of the decision has been made under section 209-10 or the
decision has been confirmed, varied or set aside under section 209-10 and an
application has been made under section 212-1 for review of the
decision.
Subsection 209-5(3) provides that, after reconsidering the
decision, the decision maker must confirm the decision, vary the decision or
set the decision aside and substitute a new decision.
Subsection
209-5(4) provides that the reviewer’s decision (the decision on
review) to confirm, vary or set aside the decision takes effect on the
day specified in the decision on review or, if a day is not specified, on the
day on which the decision on review was made.
Subsection 209-5(5)
provides that the reviewer must give written notice of the decision on review to
the person to whom that decision relates.
Subsection 209-5(6) provides
that the notice must be given within a reasonable period after the decision is
made and must contain a statement of the reasons for the reviewer’s
decision on review.
Clause 209-10
Reconsideration of reviewable decisions on request
Subsection
209-10(1) provides that a person whose interests are affected by a reviewable
decision may request the reviewer to reconsider the decision.
Subsection
209-10(2) provides that the person’s request must be made by written
notice given to the reviewer within 28 days (or such longer period as the
reviewer allows) after the day on which the person first received notice of the
decision.
Subsection 209-10(3) provides that the notice must set out the
reasons for making the request.
Subsection 209-10(4) provides that after
receiving the request the reviewer must reconsider the decision and either
confirm the decision, vary the decision or set the decision aside and substitute
a new decision.
Subsection 209-10(5) provides that the reviewer’s
decision (the decision on review) to confirm, vary or set aside
the decision takes effect on the day specified in the decision on review or, if
a day is not specified, on the day on which the decision on review was
made.
Subsection 209-10(6) provides that, for the purposes of Part 5-7,
the reviewer is taken to have confirmed the decision if the reviewer does not
give notice of a decision to the person within 45 days after receiving the
person’s request.
Division 212 -
Which decisions are subject to AAT
review?
Clause 212-1 AAT review of
reviewable decisions
Provides that an application may be made to the
Administrative Appeals Tribunal for the review of a reviewable decision that has
been confirmed, varied or set aside under section 209-5 or
209-10.
Chapter 6 - The
provision of higher education in the external
Territories
Division 217 –
Introduction
Clause 217-1 What this Chapter is
about
This Chapter primarily provides for approval as
self-accrediting entities and for accreditation of courses of study in external
Territories.
Part 6-1 - Approval and
accreditation
Division 222 -
Introduction
Clause 222-1 What this
Part is about
Certain persons (other than natural persons) in the
external Territories may apply for approval as self accrediting entities, or for
the accreditation of courses of study that they propose to offer. Persons who
are not accredited under this Part may be guilty of an offence if they operate
as a university or other provider, offer higher education awards or describe
themselves as universities.
Division
225 - How does a person obtain approval and
accreditation?
Clause 225-1
Application for approval as self-accrediting entity or for accreditation of
course
Has the effect of providing that, if a person (other than a
natural person) is not a listed self-accrediting entity and wishes to operate in
an external territory as a university or other provider of courses leading to
higher education awards, then the person must apply in writing to the Minister
either for approval of the person as a self-accrediting entity in relation to
that territory or for accreditation in relation to that territory of each course
it proposes to offer.
Clause 225-5
Approving a person as a self-accrediting entity
Has the effect of
providing that, if a person applies for approval as a self-accrediting entity in
relation to an external territory under section 225-1, the Minister may
determine the person to be such a self-accrediting entity in relation to that
territory if the Minister is satisfied, following an assessment made having
regard to the National Protocols, that it is appropriate that the person be
empowered to issue its own qualifications. A refusal to approve a person as a
self-accrediting entity is a reviewable decision under Part
5-7.
Clause 225-10 Accrediting a
course of study
Provides that the Minister may accredit a particular
course of study (in relation to an external Territory) as a course of study
leading to a higher education award if:
(a) the person applies, under section
225-1 for accreditation of that course in relation to that Territory;
and
(b) the Minister is satisfied, following an assessment made having regard
to the National Protocols, that the course and the way of delivering it are
appropriate to the award.
Clause 225-15
Duration of approval and accreditation
Subclause 225-15(1) provides
that an approval of a person as a self-accrediting entity by the Minister under
section 225-5 remains in force for the period that the Minister determines and
is subject to any conditions that the Minister imposes.
Subclause
225-15(2) provides that an accreditation of a particular course of study by the
Minister under section 225-10 remains in force for the period that the Minister
determines and is subject to any conditions that the Minister
imposes.
225-20 Amending or revoking
an approval or accreditation
Subclause 225-20(1) provides that the
Minister may amend or revoke an approval of a person as a self-accrediting
entity in relation to an external territory under section 225-5 at any time if
the Minister is satisfied that the person has breached a condition to which the
person's approval is subject or, following a reassessment of the person's
approval made having regard to the National Protocols, that the circumstances of
the person have so changed that if the person were to apply for approval as a
self-accrediting entity in relation to that territory at that time the Minister
would refuse the application.
Subclause 225-20(2) provides that the
Minister may amend or revoke an accreditation of a course of study under section
225-10 in relation to an external territory as a course leading to a higher
education award at any time if the Minister is satisfied that the person
offering the course has breached a condition to which the course accreditation
is subject or, following a reassessment of the course accreditation made having
regard to the National Protocols, that the content or manner of providing the
course have so changed that if the person providing the course were to apply for
accreditation of the course in relation to that territory at that time the
Minister would refuse the
application.
Clause 225-25
Fees
Provides that the regulations may prescribe fees to be paid in
respect of applications made under section 225-1 and for that purpose may take
into account costs directly or indirectly incurred in making a decision on such
an application. A person making an application under section 225-1 must pay
such fees as are provided for in the regulations at such times as the
regulations provide.
Division 228 -
Limitations upon operations of certain persons in the external
Territories
Clause 228-1 Persons
without accreditation not to operate as universities or other provider in
external Territories
Subclause 228-1(1) has the effect of making it
an offence for a person to operate or purport to operate in an external
territory as a university (or part of a university) or as another provider of
courses of study leading to higher education awards unless the person is a
listed self-accrediting entity, or approved by the Minister as a
self-accrediting entity in relation to that territory under section 225-5 or any
course offered by the person is accredited by the Minister under section 225-10
in relation to that territory.
Subclause 228-1(2) specifies that the
offence in subsection 228-1(1) attracts strict liability in respect of the
physical elements of circumstance in subparagraph 228-1(1)(c)(ii) and paragraph
228-1(1)(d), that the power of approval and accreditation is under sections
225-5 and 225-10 respectively. Where strict liability applies to an offence the
prosecution does not have to prove fault on the part of the defendant in
relation to that physical element. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
section 6.1 of the Code).
Clause 228-5
Persons without accreditation not to offer higher education awards or courses in
external Territories
Subclause 228-5(1) has the effect of making it
an offence for a person to offer or purport to offer in an external territory a
course of study leading to a higher education award unless the person is a
listed self-accrediting entity, or approved by the Minister as a
self-accrediting entity in relation to that territory under section 225-5 or the
course is accredited by the Minister under section 225-10 in relation to that
territory.
Subclause 228-5(2) has the effect of making it an offence for
a person to offer or purport to offer in an external territory a higher
education award unless the person is a listed self-accrediting entity, or
approved by the Minister as a self-accrediting entity in relation to that
territory under section 225-5 or the offer or purported offer of the award is
dependant on the successful completion of a course of study accredited by the
Minister under section 225-10 in relation to that territory as a course leading
to that award. The offence created by subsection 228-5(2) is intended to
include the situation where a person who is not a listed self-accrediting entity
or approved by the Minister as a self-accrediting entity in relation to that
territory under section 225-5, offers or purports to offer in an external
territory a higher education award without offering or requiring the completion
of any course.
Subclause 228-5(3) specifies that the offences in
subsections 228-5(1) and (2) attract strict liability in respect of the physical
elements of circumstance in proposed subparagraphs 228-5(1)(c)(ii) or
228-5(2)(c)(ii) and paragraphs 228-5(1)(d) or 228-5(2)(d), that the power of
approval and accreditation respectively is under sections 225-5 and 225-10
respectively. Where strict liability applies to an offence the prosecution does
not have to prove fault on the part of the defendant in relation to that
physical element. A defence of mistake of fact is open to the defendant under
section 9.2 of the Criminal Code. This defence is available if a person
is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see section 6.1 of
the Code)
Clause 228-10 Persons
without accreditation not to describe themselves as universities in external
Territories
Subclause 228-10(1) has the effect of making it an
offence for a person to use the word “university”, “university
college” or any like words to identify the person or their operation or
purported operation in an external territory unless the person is a listed
self-accrediting entity, or approved by the Minister as a self-accrediting
entity in relation to that territory under section 225-5 or the Minister has
approved the use of that word or those words for those
purposes.
Subclause 228-10(2) specifies that the offence in subsection
228-10(1) attracts strict liability in respect of the physical elements of
circumstance in proposed subparagraph 228-10(1)(b)(ii) that the power of
approval and accreditation respectively is under section 225-5. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant in relation to that physical element. A defence of
mistake of fact is open to the defendant under section 9.2 of the Criminal
Code. This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the conduct would not
constitute an offence. Under the Criminal Code, any legislative
provision that attracts strict liability must expressly state that it is an
offence of strict liability (see section 6.1 of the
Code).
Clause 228-15 Meanings of
operating and offering
Subclause
228-15(1) provides that a reference to a person operating or
purporting to operate in an external Territory as a university, part of a
university or as another provider, of courses of study leading to higher
education awards includes a reference to a person operating (or purporting to
operate) as such a university, part of a university or other provider in or from
that Territory by means of any of the following telecommunication
devices:
• a computer adapted for communicating by way of the Internet
or another communications network;
• a television receiver adapted to
allow the viewer to transmit information by way of a cable television network or
other communications network;
• a telephone;
• any other
electronic device.
Subclause 228-15(2) provides that a reference to a
person offering or purporting to offer (in an external Territory)
courses of study leading to higher education awards includes a reference to such
a person offering (or purporting to offer) such courses in or from that
Territory by means of any of the telecommunication devices referred to in
subsection 228-15(1).
Part 6-2 - Use of
company names and business
names
Division 233 - Use of company
names and business names
Clause 233-1
Law in force in external Territory not to allow company or business names using
the word “university” etc.
Provides that, despite any
provision of a law in force in an external Territory that regulates the use of
company names or business names in that Territory, registration (or purported
registration) of or authorisation (or purported authorisation) of any company
name or business name that uses the word “university”,
“university college” or any like words is of no effect unless the
Minister has given written approval for the use of that
name.
Chapter 7 -
Miscellaneous
Clause 238-1
Delegations by Secretary
Provides that the Secretary may, in writing,
delegate to an APS employee in the Department all or any of the
Secretary’s powers under the Act, the regulations or any Guidelines made
under section 238-10. The Secretary may, in writing, delegate to a review
officer of a higher education provider the Secretary’s powers under
Division 209 to reconsider reviewable decisions made by the provider relating to
Chapter 3. In exercising powers under the delegation, the delegate must comply
with any directions of the
Secretary.
Clause 238-5 Delegations by
Minister
Provides that the Minister may, by writing, delegate to the
Secretary or an APS employee in the Department all or any of the
Minister’s powers under the Act. In exercising powers under the
delegation, the delegate must comply with any directions of the
Minister.
Clause 238-10
Guidelines
Creates a table setting out the Guidelines the Minister
may make for various purposes. The table lists 10 items (column 1), a
description of the Guidelines (column 2) and the relevant Chapter or Part of the
Act under which the Guidelines were made (column 3). Clause 238-10 provides
that the Minister may make Guidelines specified in column 2 of the table
providing for matters required or permitted by the corresponding Chapter or Part
specified in column 3 of the table to be provided (or necessary or convenient to
be provided) in order to carry out or give effect to that Chapter or
Part.
Clause 238-15
Regulations
Provides that the Governor-General may make regulations
prescribing matters required or permitted by the Act to be prescribed or
necessary or convenient to be prescribed for carrying out or giving effect to
the Act.
Schedule 1 -
Dictionary
Provides a dictionary of defined terms used in the
Act. Section 1-3 describes how asterisks are used to identify those terms in
the Act.