An Act relating to the funding of higher education, and for
other purposes
Chapter 1—Introduction
Division 1—Preliminary
1‑1
Short title [see Note 1]
This Act may be cited as the Higher
Education Support Act 2003.
1‑5
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1‑1 and 1‑5 and anything in
this Act not elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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19 December 2003
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2. Sections 1‑10 to 238‑15
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The later of:
(a) 1 January 2004; and
(b) the day after the day on which this Act receives the
Royal Assent.
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1 January 2004
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3. Schedule 1
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The later of:
(a) 1 January 2004; and
(b) the day after the day on which this Act receives the
Royal Assent.
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1 January 2004
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Note: This table
relates only to the provisions of this Act as originally passed by the
Parliament and assented to. It will not be expanded to deal with provisions
inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
1‑10
Identifying defined terms
(1) Many of the terms in this Act are defined
in the Dictionary in Schedule 1.
(2) Most of the terms that are defined in the
Dictionary in Schedule 1 are identified by an asterisk appearing at the start
of the term: as in “*accredited
course”. The footnote with the asterisk contains a signpost to the Dictionary.
(3) An asterisk usually identifies the first
occurrence of a term in a section (if not divided into subsections), subsection
or definition. Later occurrences of the term in the same provision are not
usually asterisked.
(4) Terms are not asterisked in headings,
notes, examples, explanatory tables, guides, outline provisions or diagrams.
(5) If a term is not identified by an
asterisk, disregard that fact in deciding whether or not to apply to that term
a definition or other interpretation provision.
(6) The following basic terms used throughout
the Act are not identified with an asterisk:
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Terms that are not
identified
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Item
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This term:
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is defined in:
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1
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enrol
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Schedule 1
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2
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higher education provider
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section 16‑1
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3
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student
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Schedule 1
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4
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unit of study
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Schedule 1
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1‑15
Application of Chapter 6 etc.
Chapter 6 and any regulation made
for the purposes of that Chapter extend to every external Territory.
Division 2—Objects
2‑1
Objects of this Act
The objects of this Act are:
(a) to support a higher education
system that:
(i) is characterised by
quality, diversity and equity of access; and
(ii) contributes to the
development of cultural and intellectual life in Australia; and
(iii) is appropriate to meet
Australia’s social and economic needs for a highly educated and skilled
population; and
(b) to support the distinctive
purposes of universities, which are:
(i) the education of
persons, enabling them to take a leadership role in the intellectual, cultural,
economic and social development of their communities; and
(ii) the creation and
advancement of knowledge; and
(iii) the application of
knowledge and discoveries to the betterment of communities in Australia and
internationally;
recognising that universities
are established under laws of the Commonwealth, the States and the Territories
that empower them to achieve their objectives as autonomous institutions
through governing bodies that are responsible for both the university’s overall
performance and its ongoing independence; and
(c) to strengthen Australia’s
knowledge base, and enhance the contribution of Australia’s research
capabilities to national economic development, international competitiveness
and the attainment of social goals; and
(d) to support students undertaking
higher education and certain vocational education and training.
Division 3—Overview of this Act
3‑1
General
This Act primarily provides for the
Commonwealth to give financial support for higher education and certain
vocational education and training:
(a) through grants and other payments
made largely to higher education providers; and
(b) through financial assistance to
students (usually in the form of loans).
3‑5
Grants for higher education assistance etc. (Chapter 2)
(1) Chapter 2 sets out who are higher
education providers, and provides for the following grants and payments:
(a) grants under the Commonwealth
Grant Scheme;
(b) other grants for particular
purposes;
(c) grants for Commonwealth
scholarships.
(2) Higher education providers will be
universities, self‑accrediting entities or non self‑accrediting
entities.
(3) Chapter 2 also provides for the
direct payment to students of certain Commonwealth scholarships.
3‑10
Assistance to students (Chapter 3)
Chapter 3 provides for the
following assistance to students:
(a) HECS‑HELP assistance for
student contribution amounts;
(b) FEE‑HELP assistance for
tuition fees;
(c) OS‑HELP assistance for overseas
study.
Chapter 3 also provides for the Student Learning
Entitlement.
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.
3‑20
Administration (Chapter 5)
Chapter 5 provides for several
administrative matters relating to the operation of this Act.
3‑25
Provision of higher education in the external Territories (Chapter 6)
Chapter 6 primarily provides for
approval of universities, self‑accrediting entities and non self‑accrediting
entities to operate in external Territories, and for accreditation of courses
of study in those Territories.
3‑30
VET FEE‑HELP Assistance Scheme (Schedule 1A)
Schedule 1A provides for financial
assistance to students undertaking certain accredited vocational education and
training (VET) courses.
Division 5—Application of
Act to Table C providers
5‑1
Application of Act to Table C providers
General application to Table C providers
(1) The provisions of this Act not listed in
the table in subsection (2) or in subsection (4) apply to a *Table C provider,
the *Australian
branch of the provider and to students undertaking or proposing to undertake
units of study at that branch.
Modified application to Table C providers
(2) The provisions of this Act listed in the
table apply to a *Table
C provider in the way set out in the table.
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Application of Act to
Table C providers
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Item
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Provision
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Application
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1
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Subdivision 19‑C (quality requirements)
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Applies to the *Australian branch of the provider. However, an audit by a
*quality
auditing body may need to assess the overall performance of the provider as
it relates to that branch.
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2
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Subdivision 19‑D (fairness requirements)
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Applies to the *Australian branch of the provider and to students
undertaking or proposing to undertake units of study at that branch.
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3
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Subdivision 19‑F (contribution and fee
requirements)
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Applies to the *Australian branch of the provider and to students
undertaking or proposing to undertake units of study at that branch.
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4
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Part 3‑3 (FEE‑HELP assistance)
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Applies to eligible students of the *Australian
branch of the provider, but only for units of study in which the students are
enrolled at the Australian branch.
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5
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Part 3‑4 (OS‑HELP assistance)
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Applies to eligible students of the *Australian
branch of the provider.
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6
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Chapter 4 (Repayment of loans)
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Applies to the *Australian branch of the provider and to students
undertaking, or students who undertook, units of study at that branch.
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7
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Part 5‑2 (Administrative requirements on higher
education providers)
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Applies to the *Australian branch of the provider and to students
undertaking or proposing to undertake units of study at that branch.
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8
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Part 5‑3 (Electronic communications)
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Applies to the *Australian branch of the provider and to students
undertaking or proposing to undertake units of study at that branch.
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9
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Part 5‑4 (Protection of personal information)
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Applies to the *Australian branch of the provider and to students
undertaking or proposing to undertake units of study at that branch.
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10
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Part 5‑5 (Tax file numbers)
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Applies to the *Australian branch of the provider and to students
undertaking or proposing to undertake units of study at that branch.
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11
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Part 5‑7 (Review of decisions)
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Applies to the *Australian branch of the provider and to students
undertaking or proposing to undertake units of study at that branch.
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Provisions that do not apply to Table C providers
(3) The provisions of this Act listed in subsection (4)
do not apply to:
(a) a *Table C provider; or
(b) the *Australian branch of the provider; or
(c) students in their capacity as
students of that provider or of that branch.
(4) The provisions are:
(a) Part 2‑2 (Commonwealth
Grant Scheme);
(b) Part 2‑3 (Other
grants);
(c) Part 2‑4 (Commonwealth
scholarships);
(d) Part 2‑5 (Reduction and
repayment of grants);
(e) Part 3‑2 (HECS‑HELP
assistance);
(f) Schedule 1A (VET FEE‑HELP
Assistance Scheme).
Division 6—Schedule 1A
6‑1 Schedule 1A
Schedule 1A has effect.
Chapter 2—Grants for higher education assistance etc.
Division 8—Introduction
8‑1
What this Chapter is about
This Chapter provides for who are
higher education providers, and for 3 kinds of grants to be made.
Part 2‑1 sets out who are
higher education providers (universities, self‑accrediting entities and
non self‑accrediting entities), the quality and accountability
requirements for higher education providers and how bodies cease to be higher
education providers.
Note: Except
in very limited cases, only higher education providers can get grants under
this Chapter.
The 3 kinds of grants available under
this Chapter are:
• grants under Part 2‑2
(Commonwealth Grant Scheme) to certain higher education providers. Amounts of
grants are based largely on the number of Commonwealth supported places that
the Minister allocates to each provider. Grants are made subject to conditions;
and
• other grants under Part 2‑3
to higher education providers and other bodies corporate for a variety of
purposes; and
• grants for Commonwealth scholarships
to certain higher education providers under Part 2‑4.
The amount of a grant may be reduced,
or an amount paid may be required to be repaid, if the recipient breaches a
quality and accountability requirement or a condition of the grant (see Part 2‑5).
Note: A
body’s approval as a higher education provider may be suspended or revoked for
such a breach.
This Chapter also provides for the
direct payment to students of certain Commonwealth scholarships under
Part 2‑4.
Part 2‑1—Higher education providers
Division 13—Introduction
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 (universities and certain self‑accrediting
entities) have that approval upon commencement of this Act. Table C providers
have that approval from the time they are included in Table C. 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 circumstances such as breach of a quality
and accountability requirement.
13‑5
The Higher Education Provider Guidelines
Higher education providers and the *quality and
accountability requirements are also dealt with in the Higher Education
Provider Guidelines. The provisions of this Part indicate when a particular
matter is or may be dealt with in these Guidelines.
Note: The Higher Education Provider Guidelines are
made by the Minister under section 238‑10.
Division 16—What is a higher education provider?
Subdivision 16‑A—General
16‑1
Meaning of higher education provider
A higher education provider
is a body corporate that is approved under this Division.
16‑5
When a body becomes or ceases to be a higher education provider
(1) A *listed provider is taken to be approved
as a higher education provider from the commencement of this Act.
(1A) A *Table C provider is taken to be approved as a
higher education provider from the commencement of the provision that included
the provider in Table C in section 16‑22.
(2) A body corporate:
(a) that is not a *listed provider or
a *Table C
provider; or
(b) that is a listed provider or a
Table C provider that has previously ceased to be a higher education provider;
becomes a provider if approved by the Minister under
section 16‑25.
(3) 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?
16‑10
Listed providers
The following are listed providers:
(a) a *Table A provider;
(b) a *Table B provider.
16‑15
Table A providers
(1) The following are Table A providers:
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Table
A providers
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Providers
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Central Queensland University
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Charles Darwin University
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Charles Sturt University
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Curtin University of Technology
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Deakin University
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Edith Cowan University
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Griffith University
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James Cook University
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La Trobe University
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Macquarie University
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Monash University
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Murdoch University
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Queensland University of Technology
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Royal Melbourne Institute of Technology
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Southern Cross University
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Swinburne University of Technology
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The Australian National University
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The Flinders University of South Australia
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The University of Adelaide
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The University of Melbourne
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The University of Queensland
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The University of Sydney
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The University of Western Australia
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University of Ballarat
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University of Canberra
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University of Newcastle
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University of New England
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University of New South Wales
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University of South Australia
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University of Southern Queensland
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University of Tasmania
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University of Technology, Sydney
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University of the Sunshine Coast
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University of Western Sydney
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University of Wollongong
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Victoria University
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Australian Catholic University
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Batchelor Institute of Indigenous Tertiary Education
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(2) However, a body is not a Table A provider
if its approval as a higher education provider is revoked or suspended.
16‑20
Table B providers
(1) The following are Table B providers:
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Table
B providers
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Providers
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Bond University
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The University of Notre Dame Australia
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Melbourne College of Divinity
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(2) However, a body is not a Table B provider
if its approval as a higher education provider is revoked or suspended.
16‑22
Table C providers
(1) The following are Table C providers:
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Table
C providers
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Providers
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Carnegie Mellon University, a non‑profit
organisation established under Pennsylvania law
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(2) However, a body is not a Table C
provider if its approval as a higher education provider is revoked or
suspended.
Note: A Table C provider is not entitled to receive
a grant under this Chapter: see section 5‑1.
Subdivision 16‑C—How are bodies approved as higher education providers?
16‑25
Approval by the Minister
The Minister, in writing, may approve a
body corporate as a higher education provider if:
(a) the body:
(i) is established under
the law of the Commonwealth, a State or a Territory; and
(ii) carries on business in
Australia; and
(iii) has its central
management and control in Australia; and
(aa) the body’s principal purpose is
either or both of the following:
(i) to provide education;
(ii) to conduct research;
and
(b) the body is:
(i) an *Australian
university; or
(ii) a *self‑accrediting
entity; or
(iii) a *non self‑accrediting
entity; and
(c) the body either fulfilled the *tuition assurance
requirements on the date of making an application under section 16‑40
or is exempted from those requirements under section 16‑31; and
(d) the body is in a State or
Territory that the Minister is satisfied has legislation that complies with the
*National
Protocols; and
(da) the body offers at least one *course of study
that leads to a *higher
education award; and
(db) if the body is a self‑accrediting
entity:
(i) the body is authorised
by a *government
accreditation authority to accredit that course; or
(ii) the course is an *accredited course;
and
(dc) if the body is a non self‑accrediting
entity—the course is an accredited course; and
(e) the body applies for approval as
provided for in section 16‑40; and
(f) the Minister is satisfied that
the body is willing and able to meet the *quality and accountability requirements.
16‑30
The tuition assurance requirements
The tuition assurance requirements
are that the body corporate complies with the requirements for tuition
assurance set out in the Higher Education Provider Guidelines.
16‑31
Tuition assurance requirements exemption for approvals
(1) The Minister may, in writing, exempt a
body corporate from the *tuition assurance requirements for the purposes of
approving the body under section 16‑25.
Note: This section only deals with exemptions from
the tuition assurance requirements when approving bodies as higher education
providers. For exemptions from the tuition assurance requirements after
approval has happened, see subsection 19‑40(2).
(2) An exemption is subject to such
conditions as are specified in the exemption.
Note: A body will not be exempt if a condition of
the exemption is not complied with.
(3) An exemption given under this section is
not a legislative instrument.
16‑40
Application
(1) A body corporate may apply in writing to
the Minister for approval as a higher education provider.
(2) The application:
(a) must be in the form approved by
the Minister; and
(b) must be accompanied by such
information as the Minister requests.
16‑45
Minister may seek further information
(1) For the purposes of determining an
application, the Minister may, by notice in writing, require an applicant to
provide such further information as the Minister directs within the period
specified in the notice.
(2) If an applicant does not comply with a
requirement under subsection (1), the application is taken to have been
withdrawn.
(3) A notice under this section must include
a statement about the effect of subsection (2).
16‑50
Minister to decide application
(1) The Minister must:
(a) decide an application for approval
as a higher education provider; and
(b) cause the applicant to be notified
in writing whether or not the applicant is approved as a higher education
provider.
(2) 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.
(3) The Minister’s decision must be made:
(a) within 90 days after receiving the
application; or
(b) 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.
(4) If the Minister decides that an applicant
is approved as a higher education provider, the notice 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.
16‑55
Approvals are legislative instruments
(1) A notice of approval under paragraph 16‑50(1)(b)
is a legislative instrument.
(2) A decision of the Minister to approve a
body corporate as a higher education provider takes effect at the later of the
following times:
(a) on the day immediately after the
last day on which a resolution referred to in subsection 42(1) of the Legislative
Instruments Act 2003 disallowing the notice could be passed;
(b) the day (if any) specified in the
notice under paragraph 16‑50(1)(b) as the day on which the approval takes
effect.
Division 19—What are the quality and accountability requirements?
Subdivision 19‑A—General
19‑1
The quality and accountability requirements
(1) The quality and accountability
requirements are:
(a) the *financial viability requirements (see
Subdivision 19‑B); and
(b) the *quality requirements (see Subdivision 19‑C);
and
(c) the *fairness requirements (see Subdivision 19‑D);
and
(d) the *compliance requirements (see Subdivision 19‑E);
and
(e) the *contribution and fee requirements (see
Subdivision 19‑F).
(2) This Division does not of its own force
require a higher education provider to do any act or thing.
Subdivision 19‑B—The financial viability requirements
19‑5
Basic requirement
A higher education provider:
(a) must be financially viable; and
(b) must be likely to remain
financially viable.
19‑10
Financial information must be provided
(1) A higher education provider must give to
the Minister a financial statement for each *annual financial reporting period for the
provider in which:
(a) the provider receives assistance
under this Chapter; or
(b) a student of the provider receives
assistance under Chapter 3.
(2) The statement:
(a) must be in the form approved by
the Minister; and
(b) must be provided together with a
report on the statement by an independent *qualified auditor; and
(c) must be provided within 6 months
after the end of the *annual
financial reporting period for which the statement was given.
(3) An annual financial reporting
period, for a higher education provider, is the period of 12 months:
(a) to which the provider’s accounts
relate; and
(b) that is notified in writing to the
Minister as the provider’s annual financial reporting period.
19‑12
Minister to have regard to financial information
In determining whether a higher
education provider is financially viable, and likely to remain so, the Minister
must have regard to any financial statement provided by the provider under
section 19‑10.
Subdivision 19‑C—The quality requirements
19‑15
Provider must maintain quality
(1) A higher education provider must operate,
and continue to operate, at an appropriate level of quality for an Australian
higher education provider.
(2) The Minister must not determine that a
higher education provider meets an appropriate level of quality for an
Australian higher education provider, unless the Minister is satisfied that:
(a) the provider meets the
requirements of section 19‑20; and
(b) if the provider is not a *Table A
provider—the provider meets the requirements of section 19‑25; and
(c) if the provider is a Table A
provider—the provider meets the requirements of section 19‑27.
19‑20
Provider to comply with National Protocols etc.
A higher education provider must:
(a) be assessed, by a *government accreditation
authority, as meeting the relevant requirements set out in the *National
Protocols; and
(b) comply with any requirement
imposed on the provider by a government accreditation authority; and
(c) comply with any requirement
imposed on the provider by the Minister in writing in order to implement a
specified recommendation of a *quality auditing body.
19‑25
Quality assurance—provider (other than Table A provider)
(1) A higher education provider (other than a
*Table A
provider) must be audited:
(a) by a *quality auditing body; and
(b) as the auditing body requires.
(2) The provider must also:
(a) after a request from a *quality auditing
body to audit the provider, allow the audit to start within the time agreed to
by the body and provider; and
(b) fully co‑operate with the
auditing body in the course of its audit; and
(c) pay to the auditing body any
charges payable for such an audit.
(3) The provider’s agreement under paragraph (2)(a)
must be given to the *quality
auditing body within one month after the body makes the request to the
provider.
19‑27
Quality assurance—Table A provider
(1) A *Table A provider must be audited by a *quality auditing
body at least once every 5 years.
(2) The provider must, in relation to each
audit of the provider:
(a) either:
(i) before the start of
the audit, reach agreement with the body on the time of, and the arrangements
for, the audit; or
(ii) comply with the
Minister’s determination under subsection (3); and
(b) in relation to each audit, comply
with any requests, made in the course of the audit by the body conducting the
audit, that are reasonable having regard to the provider’s circumstances.
(3) If the provider and the *quality auditing
body are unable to agree on matters referred to in subparagraph (2)(a)(i)
in relation to an audit of the provider, the Minister may, after consulting
with the provider, determine in writing the audit arrangements for the
provider.
Subdivision 19‑D—The fairness requirements
19‑30
Basic requirement
A higher education provider must treat
fairly:
(a) all of its students; and
(b) all of the persons seeking to
enrol with the provider.
19‑35
Benefits and opportunities must be available equally to all students
(1) A higher education provider that receives
assistance under this 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.
(2) A higher education provider that
receives:
(a) any grant or allocation under this
Chapter; or
(b) any
payment under section 124‑1 on account of amounts of *OS‑HELP
assistance;
must have open, fair and transparent procedures that, in
the provider’s reasonable view, are based on merit for making decisions about
the selection of students who are to benefit from the grant, allocation or
payment.
(3) Subsection (2) does not prevent a
higher education provider taking into account, in making such decisions about
the selection of students, educational disadvantages that a particular student
has experienced.
(4) A higher education provider that receives
any payment under section 110‑1 on account of amounts of *FEE‑HELP
assistance for a unit of study must have open, fair and transparent procedures
that, in the provider’s reasonable view, are based on merit for making
decisions about:
(a) the selection, from among the
persons who seek to enrol with the provider in that unit of study, of persons
to enrol; and
(b) the treatment of students
undertaking that unit of study.
(5) Subsection (4) does not prevent a
higher education provider taking into account, in making decisions mentioned in
that subsection, educational disadvantages that a particular student has
experienced.
19‑37
Requiring membership of certain organisations or payment of certain amounts
(1) A higher education provider must not:
(a) require a person to be or to
become a member of an organisation of students, or of students and other
persons; or
(b) require a person enrolled with, or
seeking to enrol with, the provider to pay to the provider or any other entity
an amount in respect of an organisation of students, or of students and other
persons;
unless the person has chosen to be or to become a member
of the organisation.
(2) A higher education provider must not
require a person enrolled with, or seeking to enrol with, the provider to pay
to the provider or any other entity an amount for the provision to students of
an amenity, facility or service that is not of an academic nature, unless the
person has chosen to use the amenity, facility or service.
(3) Subsection (2) does not apply to an
amount that the higher education provider requires the person to pay if the
amount is for goods or services that:
(a) are essential for the course of
study in which the person is enrolled or seeking to enrol; and
(b) the person has the choice of
acquiring from, but does not acquire from, a supplier other than the higher
education provider; and
(c) either:
(i) are goods that become
the property of the person that are not intended to be consumed during the
course of study; or
(ii) consist of food,
transport or accommodation associated with provision of field trips in
connection with the course of study.
19‑40
Compliance with the tuition assurance requirements
(1) A higher education provider, other than a
*Table A
provider or a body declared under subsection (2), must comply with the *tuition assurance
requirements.
(2) The Minister may, by declaration in
writing, exempt a specified higher education provider from the requirement in subsection (1).
(3) An exemption:
(a) is subject to such conditions as
are specified in the exemption; and
(b) may be expressed to be in force
for a period specified in the exemption.
Note: A body will not be exempt if a condition of
the exemption is not complied with.
(4) An exemption given under this section is
not a legislative instrument.
19‑45
Student grievance and review procedures
Must have grievance and review procedures
(1) A higher education provider must have:
(a) 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; and
(b) a grievance procedure for dealing
with complaints by the provider’s students relating to academic
matters; and
(c) a review procedure for dealing
with review of decisions made by the provider:
(i) under section 36‑22;
or
(ii) relating to assistance
under Chapter 3.
Note: Part 5‑7 also deals with
reconsideration and review of decisions.
(2) Except where the provider is a *Table A provider,
the grievance procedures referred to in paragraphs (1)(a) and (b) must
comply with the requirements of the Higher Education Provider Guidelines.
(3) The review procedure referred to in paragraph (1)(c)
must comply with the requirements of the Higher Education Provider Guidelines.
Guidelines may provide for matters relating to reviews
(4) The Higher Education Provider Guidelines
may provide for matters relating to reviews of decisions made by higher
education providers:
(a) under section 36‑22; or
(b) relating to assistance under
Chapter 3;
including procedures that are to be followed by *review officers
when reviewing those decisions.
Provider to comply with procedures
(5) The provider must comply with its
grievance and review procedures.
Provider to provide information about procedures
(6) The provider must publish, and make
publicly available, up to date information setting out the procedures.
Provider to provide information about other complaint
mechanisms
(7) The provider must publish information
about any other complaint mechanisms available to complain about the provider’s
decisions.
19‑50
Higher education providers to appoint review officers
(1) A higher education provider must appoint
a *review
officer to undertake reviews of decisions made by the provider:
(a) under section 36‑22; or
(b) relating to assistance under
Chapter 3.
Note: The Secretary may delegate to a review officer
of a higher education provider the power to reconsider decisions of the
provider under Division 209: see subsection 238‑1(2).
(2) A review officer of a
higher education provider is a person, or a person included in a class of persons,
whom:
(a) the chief executive officer of the
provider; or
(b) a
delegate of the chief executive officer of the provider;
has appointed to be a review officer of the provider for
the purposes of reviewing decisions made by the provider:
(c) under section 36‑22; or
(d) relating to assistance under
Chapter 3.
19‑55
Review officers not to review own decisions
A higher education provider must ensure
that a *review
officer of the provider:
(a) does not review a decision that
the review officer was involved in making; and
(b) in reviewing a decision of the
provider, occupies a position that is senior to that occupied by any person
involved in making the original decision.
19‑60
Procedures relating to personal information
(1) A higher education provider must comply
with the information privacy principles set out in section 14 of the Privacy
Act 1988 in respect of *personal information obtained for the purposes of section 36‑22
or Chapter 3 or 4.
(2) A higher education provider must have a
procedure under which a student enrolled with the provider may apply to the
provider for, and receive, a copy of *personal information that the provider holds in
relation to that student.
(3) The provider must comply with:
(a) the requirements of the Higher
Education Provider Guidelines relating to *personal information in relation to
students; and
(b) the procedure referred to in subsection (2).
Subdivision 19‑E—The compliance requirements
19‑65
Basic requirements
(1) A higher education provider must comply
with the requirements of this Act and the regulations, and the requirements of
the Guidelines made under section 238‑10 that apply to the provider.
(2) A higher education provider must provide
information to the Minister in relation to the affairs of the provider in
accordance with the requirements of this Act.
(3) A higher education provider’s
administrative arrangements must support the provision of assistance under this
Act.
19‑70
Provider to provide statement of general information
(1) A higher education provider must give to
the Minister such statistical and other information that the Minister by notice
in writing requires from the provider in respect of:
(a) the provision of higher education
by the provider; and
(b) compliance by the provider with the
requirements of this Act.
(2) The information must be provided:
(a) in a form approved by the
Minister; and
(b) in accordance with such other
requirements as the Minister makes.
(3) A notice under this section must not
require the giving of information that a higher education provider is required
to give to the Minister under section 19‑95.
19‑75
Notice of events that affect provider’s ability to comply with conditions of
Commonwealth assistance
A higher education provider must by
writing inform the Minister of any event affecting:
(a) the provider; or
(b) a *related body
corporate of the provider;
that may significantly affect the provider’s capacity to
meet the conditions of grants under this Chapter or the *quality and accountability
requirements.
19‑77
Notice of events affecting accreditation
A higher education provider must by
writing inform the Minister of any event affecting:
(a) the provider; or
(b) a *related body corporate of the provider;
that relates to:
(c) the provider’s authority to
accredit *courses
of study leading to *higher
education awards; or
(d) the accreditation by a *government
accreditation authority, of such courses offered by the provider.
19‑80
Compliance assurance—provider (other than Table A provider)
(1) The Minister may require a higher
education provider (other than a *Table A provider) to be audited as to compliance with any
one or more of the following requirements:
(a) the *financial viability requirements;
(b) the *fairness requirements;
(c) the *compliance requirements;
(d) the *contribution and fee requirements.
(2) The audit must be conducted:
(a) by a body determined in writing by
the Minister; and
(b) at such time or times, and in such
manner, as the Minister requires.
(3) The provider must:
(a) fully co‑operate with the
auditing body in the course of its audit; and
(b) pay to the auditing body any
charges payable for such an audit.
(4) A determination made under paragraph (2)(a)
is not a legislative instrument.
Subdivision 19‑F—What are the contribution and fee requirements?
19‑85
Basic requirement
A higher education provider must charge,
in accordance with the requirements of this Act, *student contribution amounts and *tuition fees for
each unit of study in which it enrols students.
19‑87
Determining student contribution amounts for all places in units
(1) This section applies to a unit of study:
(a) that a higher education provider
provides or proposes to provide during a period ascertained in accordance with
the Higher Education Provider Guidelines; and
(b) in relation to which the provider
may advise a person that he or she is a *Commonwealth supported student.
(2) The provider must determine, for places
in the unit, one or more *student contribution amounts that are to apply to students
who may enrol in the unit during the period.
(2A) In determining more than one *student
contribution amount under subsection (2), the provider may have regard to
any matters the provider considers appropriate, other than matters specified in
the Higher Education Provider Guidelines as matters to which a provider must
not have regard.
(3) The provider must not vary a *student
contribution amount unless the provider:
(a) does so:
(i) before the date
ascertained in accordance with the Higher Education Provider Guidelines; and
(ii) in circumstances
specified in the Higher Education Provider Guidelines; or
(b) does so with the written approval
of the Minister.
19‑90
Determining tuition fees for all students
(1) This section applies to a unit of study
that a higher education provider provides or proposes to provide during a period
ascertained in accordance with the Higher Education Provider Guidelines.
(2) The provider must determine, for the
unit, one or more *fees
that are to apply to students who may enrol in the unit during the period.
(3) In determining more than one *fee under
subsection (2), the provider may have regard to any matters the provider
considers appropriate, other than matters specified in the Higher Education
Provider Guidelines as matters to which a provider must not have regard.
(4) The provider must not vary a *fee unless the
provider:
(a) does so:
(i) before the date
ascertained in accordance with the Higher Education Provider Guidelines; and
(ii) in circumstances
specified in the Higher Education Provider Guidelines; or
(b) does so with the written approval
of the Minister.
19‑95
Schedules of student contribution amounts for places and tuition fees
(1) A higher education provider must give the
Minister a schedule of the *student contribution amounts for places, and *tuition fees,
determined under sections 19‑87 and 19‑90 for all the units of
study it provides or proposes to provide during a period ascertained in
accordance with the Higher Education Provider Guidelines. It must give the
schedule:
(a) in a form approved by the
Minister; and
(b) in accordance with the
requirements that the Minister determines in writing.
(2) The provider must:
(a) ensure that the schedule provides
sufficient information to enable a person to work out, for each unit of study
the provider provides or is to provide:
(i) the person’s *student
contribution amount; and
(ii) if the provider
determined more than one student contribution amount for places in a unit under
section 19‑87—which of those student contribution amounts applies to
the person; and
(aa) ensure that the schedule provides
sufficient information to enable a person to work out, for each unit of study
the provider provides or is to provide:
(i) the person’s *tuition fee; and
(ii) if the provider
determined more than one tuition fee for a unit under section 19‑90—which
of those tuition fees applies to the person; and
(b) publish the schedule for a
particular period by the date ascertained in accordance with the Higher Education
Provider Guidelines; and
(c) ensure that the schedule is
available to all students enrolled, and persons seeking to enrol, with the
provider on request and without charge.
Replacement schedules
(3) If:
(a) the provider has given the
Minister a schedule (the previous schedule) under:
(i) subsection (1);
or
(ii) this subsection; and
(b) the provider:
(i) varies a *student
contribution amount in the previous schedule; or
(ii) varies a *tuition fee in the
previous schedule;
the provider must:
(c) by written notice given to the
Minister:
(i) withdraw the previous
schedule; and
(ii) inform the Minister of
the variation; and
(d) give the Minister a replacement
schedule incorporating the variation.
Note 1: The provider must comply with subsection 19‑87(3)
when varying a student contribution amount.
Note 2: The provider must comply with subsection 19‑90(4)
when varying a tuition fee.
(4) Subsections (1) and (2) apply to the
replacement schedule in a corresponding way to the way in which they apply to the
previous schedule.
19‑100
Limits on fees for courses of study
A higher education provider must not
charge a person a *fee
for a *course
of study that exceeds the sum of the person’s *tuition fees for all of the units of
study undertaken with the provider by the person as part of the course.
19‑102
Meaning of fee
(1) A fee includes any tuition,
examination or other fee payable to a higher education provider by a person
enrolled with, or applying for enrolment with, the provider.
(2) A fee may also include any
fee payable to the provider in respect of the granting of a *higher education
award.
(3) A fee does not include a
fee that is:
(a) payable in respect of an
organisation of students, or of students and other persons; or
(b) payable in respect of the
provision to students of amenities or services that are not of an academic
nature; or
(c) payable in respect of residential
accommodation; or
(d) imposed in accordance with the Higher
Education Provider Guidelines for the imposition of fees in respect of *overseas students;
or
(e) 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
(f) determined, in accordance with
the Higher Education Provider Guidelines, to be a fee of a kind that is
incidental to studies that may be undertaken with a higher education provider;
or
(g) a *student contribution amount payable in
respect of a student.
(4) The definition of fee in
this section does not apply for the purposes of sections 104‑50 and
225‑25.
19‑105
Meaning of tuition fee
A person’s tuition fee for
a unit of study is:
(a) if only one fee has been
determined for the unit under subsection 19‑90(2)—that fee; or
(b) if more than one fee has been
determined for the unit under that subsection—the fee determined under that
subsection that applies to the person.
Division 22—When does a body cease to be a higher education provider?
Subdivision 22‑A—General
22‑1
Cessation of approval as a provider
A body ceases to be approved as a higher
education provider:
(a) if the approval is revoked under
Subdivision 22‑B or 22‑D; or
(b) while the approval is suspended
under section 22‑30.
Subdivision 22‑B—Revocation for cause
22‑5
Revocation of approval if application for approval as a provider is false or
misleading
The Minister may revoke a body’s
approval as a higher education provider if the Minister:
(a) is satisfied that the body’s
application under section 16‑40 for approval as a higher education
provider contained material that was false or misleading; and
(b) complies with the requirements of
section 22‑20.
22‑7
Revocation of approval if providing education and/or conducting research ceases
to be the body’s principal purpose
The Minister may revoke a body’s
approval as a higher education provider if:
(a) at the last time the body became a
higher education provider, the body’s principal purpose was either or both of
the following:
(i) to provide education;
(ii) to conduct research;
and
(b) since that time, the body’s
circumstances have changed so that it no longer satisfies paragraph 16‑25(aa);
and
(c) the Minister complies with the
requirements of section 22‑20.
22‑10
Revocation of approval if status or accreditation changes
Bodies that cease to be Australian universities
(1) The Minister may revoke a body’s approval
as a higher education provider if:
(a) the body was an *Australian
university at the last time the body became a higher education provider; and
(b) since that time, the body has
ceased to be an Australian university; and
(c) the Minister complies with the
requirements of section 22‑20.
Bodies that cease to be self‑accrediting entities
(2) The Minister may revoke a body’s approval
as a higher education provider if:
(a) the body was a *self‑accrediting
entity at the last time the body became a higher education provider; and
(b) since that time, the body has
ceased to be a self‑accrediting entity; and
(c) the Minister complies with the
requirements of section 22‑20.
Self‑accrediting entities that cease to have
authority to accredit courses
(2A) The Minister may revoke a body’s approval
as a higher education provider if:
(a) the body was a *self‑accrediting
entity at the last time the body became a higher education provider; and
(b) the body is no longer authorised
by a *government
accreditation authority to accredit a *course of study that the body was
authorised to accredit at that time; and
(c) the Minister complies with the
requirements of section 22‑20.
Bodies that cease to be non self‑accrediting
entities
(3) The Minister may revoke a body’s approval
as a higher education provider if:
(a) the body was a *non self‑accrediting
entity at the last time the body became a higher education provider; and
(b) since that time, the body has
ceased to be a non self‑accrediting entity; and
(c) the Minister complies with the
requirements of section 22‑20.
Bodies offering courses that cease to be accredited
courses
(4) The Minister may revoke a body’s approval
as a higher education provider if:
(a) the body was a *self‑accrediting
entity or a *non
self‑accrediting entity at the last time the body became a higher
education provider; and
(b) a *course of study offered by the body that
was an *accredited
course ceases to be an accredited course; and
(c) the Minister complies with the
requirements of section 22‑20.
22‑15
Revocation of approval as a provider for a breach of conditions or the quality
and accountability requirements
(1) The Minister may revoke a body’s approval
as a higher education provider if the Minister:
(a) is satisfied that the body has
either:
(i) breached a condition
of a grant made to the body under Part 2‑2, 2‑3 or 2‑4;
or
(ii) breached a *quality and
accountability requirement; and
(b) is satisfied that it is
appropriate to take that action (see subsection (2)); and
(c) complies with the requirements of
section 22‑20.
(2) Without limiting the matters that the
Minister may consider in deciding whether it is appropriate under this section
to revoke a body’s approval as a higher education provider, the Minister may
consider any or all of the following matters:
(a) whether the breach in question is
of a minor or major nature;
(b) whether the breach has occurred
before and, if so, how often;
(c) the impact that the breach may
have on the body’s students;
(d) the impact of the breach on the
higher education provided by the body;
(e) the impact of the breach on Australia’s
reputation as a provider of high quality higher education;
(f) any other matter set out in the
Higher Education Provider Guidelines.
Subdivision 22‑C—Process for decisions on revocation under Subdivision 22‑B
22‑20
Process for revoking approval as a provider for loss of status or a breach
(1) Before revoking a body’s approval as a higher
education provider under Subdivision 22‑B, the Minister must give
the body notice in writing:
(a) stating that the Minister is
considering revoking the body’s approval; and
(b) stating the reasons why the
Minister is considering revoking the body’s approval; and
(c) inviting the body to make written
submissions to the Minister within 28 days concerning why the approval should
not be revoked.
(2) 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.
(3) The Minister must notify the body in
writing of his or her decision whether to revoke the body’s approval under
Subdivision 22‑B. The notice:
(a) must be in writing; and
(b) must be given within the period of
28 days following the period in which submissions may have been given to the
Minister under subsection (1); and
(c) if the Minister decides to revoke
the body’s approval—must specify the day that the revocation takes effect.
(4) If no notice is given within the period
provided for in subsection (3), the Minister is taken to have decided not
to revoke the approval.
(5) If the Minister decides to revoke the
body’s approval:
(a) the revocation takes effect on the
day specified in the notice under subsection (3); and
(b) a copy of the notice must be
published in the Gazette.
22‑25
Determination retaining approval as a provider in respect of existing students
(1) The Minister may determine, in writing,
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:
(a) grants to the body under this
Chapter; and
(b) assistance payable to the body’s
students under Chapter 3;
to the extent that the grants or assistance relate to
students of the body who have not completed the *courses of study in which they were
enrolled with the body on the day specified for the purposes of paragraph 22‑20(5)(a).
(2) The determination may be included in the
notice of revocation under subsection 22‑20(3).
(3) The body is taken, for the purposes of
this Act, to continue to be a higher education provider, but only to the extent
referred to in subsection (1).
(4) Subsection (3) does not prevent the
Minister subsequently revoking the body’s approval as a higher education
provider under this Division.
22‑30
Suspension of approval as a provider
(1) The Minister may, by legislative
instrument, determine 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.
(2) A copy of the determination must be given
to the body concerned.
(3) If the Minister makes a determination
under subsection (1) in respect of a body, the Minister must give to the
body a notice under section 22‑20 within 48 hours after giving a
copy of the determination to the body.
(4) A determination under this section:
(a) takes effect accordingly on the
day specified in the determination; and
(b) ceases to have effect if the
Minister decides not to revoke the body’s approval as a higher education
provider.
22‑32
Determination retaining approval as a provider in respect of existing students
following suspension of approval
(1) The Minister may determine, in writing,
that a suspension of a body’s approval as a higher education provider under
section 22‑30 is of no effect for the purposes of:
(a) grants to the body under this
Chapter; and
(b) assistance payable to the body’s
students under Chapter 3;
to the extent that the grants or assistance relate to
students of the body who have not completed the *courses of study in which they were
enrolled with the body on the day specified for the purposes of paragraph 22‑30(4)(a).
(2) A copy of the determination must be given
to the body concerned.
(3) The body is taken, for the purposes of
this Act, to continue to be a higher education provider, but only to the extent
referred to in subsection (1).
(4) Subsection (3) does not prevent the
Minister subsequently revoking the body’s approval as a higher education
provider under this Division.
(5) A determination made under
subsection (1) is not a legislative instrument.
22‑35
Revocations are legislative instruments
(1) A notice of revocation under subsection
22‑20(3) is a legislative instrument.
(2) A decision of the Minister to revoke the
approval of a higher education provider takes effect at the later of the
following times:
(a) on the day immediately after the
last day on which a resolution referred to in subsection 42(1) of the Legislative
Instruments Act 2003 disallowing the notice could be passed;
(b) the day specified in the notice of
revocation under subsection 22‑20(3) as the day on which the revocation
takes effect.
Subdivision 22‑D—Revocation of approval on application
22‑40
Revocation of approval as a provider on application
(1) The Minister may revoke the approval of a
body as a higher education provider if the body requests the Minister in
writing to revoke the approval.
(2) The request must be given to the Minister
at least 30 days before the day on which the revocation is requested to
have effect.
(3) The Minister must cause the body to be
notified of the revocation. The notice must:
(a) be in writing; and
(b) be given to the body at least 14
days before the day on which the revocation is to take effect.
(3A) A notice of revocation under
subsection (3) is a legislative instrument.
(4) The revocation has effect on the day
requested unless another day is specified in the notice under subsection (3).
Part 2‑2—Commonwealth Grant Scheme
Division 27—Introduction
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.
Amounts of grants may be reduced, or
some or all of a grant may be repayable if a condition is breached (see Part 2‑5).
Note: This Part does not apply to Table C providers:
see section 5‑1.
27‑5
Guidelines
(1) The grants payable under this Part are
also dealt with in the Commonwealth Grant Scheme Guidelines and the Tuition Fee
Guidelines.
(2) The provisions of this Part indicate:
(a) when a particular matter is, or
may be, dealt with in the guidelines; and
(b) whether the matter is dealt with
in the Commonwealth Grant Scheme Guidelines or the Tuition Fee Guidelines.
Note 1: The Commonwealth Grant Scheme Guidelines and
the Tuition Fee Guidelines are made by the Minister under section 238‑10.
Note 2: The Commonwealth Grant Scheme Guidelines may
also deal with matters arising under section 93‑10.
Division 30—Which higher education providers are eligible for a grant?
Subdivision 30‑A—Basic rules
30‑1
Eligibility for grants
(1) A grant under this Part is payable, as a
benefit to students, to a higher education provider, in respect of the year
2005 or a later year, if:
(a) the provider is:
(i) a *Table A provider;
or
(ii) 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
(b) the Minister has allocated a *number of
Commonwealth supported places to the provider for that year under section 30‑10;
and
(c) the provider has entered into a
funding agreement with the Commonwealth under section 30‑25 in
respect of a period that includes that year.
(2) 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.
30‑5
Maximum grants
(1) 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:
(a) for the year 2005—$3,066,956,000;
or
(b) for the year 2006—$3,266,479,000;
or
(c) for the year 2007—$3,512,501,000;
or
(d) for the year 2008—$3,843,664,000;
or
(e) for the year 2009—$3,907,818,000;
or
(f) for the year 2010—$3,956,115,000;
or
(g) for the year 2011—$3,986,485,000.
(2) For the purposes of subsection (1),
regard must be had to any adjustments under Subdivision 33‑C to
amounts for the year.
Note: The adjustments would be in respect of the
preceding year.
Subdivision 30‑B—Allocation of places
30‑10
Allocation of places
(1) 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.
(2) The allocation must specify the
distribution of those places between the *funding clusters.
(2A) If the provider has indicated to the
Minister its preferred distribution of those places, the Minister must have
regard to that preferred distribution in deciding the distribution of those
places.
(3) The allocation may also specify:
(a) the number of those places that
have a regional loading; and
(b) the number of those places that
have a medical student loading; and
(c) the number of those places that
have an enabling loading.
(4) If the provider is not a *Table A provider,
the allocation must specify:
(a) that it is only in respect of *national
priorities; and
(b) the number of places for each
national priority for which the provider is allocated places.
30‑15
Funding clusters
The funding
clusters are:
|
Funding
clusters
|
|
Funding
clusters
|
|
Law, Accounting,
Administration, Economics, Commerce
|
|
Humanities
|
|
Mathematics, Statistics, Behavioural Science, Social
Studies, Education, Computing, Built Environment, Other Health
|
|
Clinical Psychology, Allied Health, Foreign Languages,
Visual and Performing Arts
|
|
Nursing
|
|
Engineering, Science, Surveying
|
|
Dentistry, Medicine, Veterinary Science, Agriculture
|
30‑20
National priorities
A national priority is a
particular outcome:
(a) that relates to the provision of
higher education; and
(b) that is an outcome specified in
the Commonwealth Grant Scheme Guidelines as a national priority.
Note: The following are examples of national
priorities:
(a) increasing the number of persons undertaking
particular courses of study;
(b) increasing the number of particular kinds of
persons undertaking courses of study;
(c) increasing the number of persons in particular
regions undertaking courses of study.
Subdivision 30‑C—Funding agreements
30‑25
Funding agreements
(1) The Minister may, on behalf of the
Commonwealth, enter into a funding agreement with a higher education provider
relating to grants under this Part in respect of each year in a period of 3
years (the grant years).
(1A) In negotiating the agreement the Minister
must have regard to all of the types of matters that the provider has indicated
to the Minister it wishes to be specified in the agreement.
(2) The agreement may specify conditions to
which the grants are subject, that are additional to the conditions that apply
under Division 36.
Note: It is a condition of the grants that the
provider comply with the agreement: see section 36‑65.
(2A) However, the agreement must not specify as
a condition to which the grants are subject a matter in respect of which the
Minister could have made a determination under subsection 36‑15(2) (or
could have made such a determination but for subsection 36‑15(3)).
Note: The Minister has the power under subsection 36‑15(2)
to determine that students are not to be enrolled as Commonwealth supported
students in particular courses. The determination is disallowable (see subsection
36‑15(3)).
(2B) Where the agreement specifies conditions to
which the grants are subject, that are additional to the conditions that apply
under Division 36, those conditions must not relate to industrial
relations matters.
(3) Without limiting subsection (2), the
agreement may specify:
(a) in relation to one or more of the
following:
(i) places in *undergraduate
courses of study;
(ii) places in non‑research
*postgraduate
courses of study;
(iii) places in courses of
study in medical programs;
(iv) places in courses of
study in *enabling
courses;
the minimum *number of
Commonwealth supported places that the provider must provide in the grant year
or grant years, or the maximum number of Commonwealth supported places that the
provider may provide in the grant year or grant years, or both; and
(b) the maximum number of Commonwealth
supported places provided by the provider which can have a regional
loading in the grant years; and
(c) the maximum number of Commonwealth
supported places provided by the provider which can have a medical
student loading in the grant years; and
(ca) the maximum number of Commonwealth
supported places provided by the provider which can have an enabling loading in
the grant years; and
(d) the maximum amount of regional
loading that will be payable to the provider, under the Commonwealth Grant
Scheme Guidelines, in the grant years; and
(da) the maximum amount of enabling
loading that will be payable to the provider, under the Commonwealth Grant
Scheme Guidelines, in the grant years; and
(g) 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.
(4) The Minister must cause a copy of the
agreement to be laid before each House of the Parliament within 15 sitting days
of that House after the making of the agreement.
Division 33—How are grant amounts worked out?
Subdivision 33‑A—Basic rule
33‑1
How grant amount is worked out
(1) The amount of a grant payable to a higher
education provider under this Part for a year is worked out by:
(a) working out the *basic grant amount
for the provider for that year under Subdivision 33‑B; and
(b) if applicable, adjusting the basic
grant amount under Subdivision 33‑C.
(2) Advances may be paid to a higher
education provider under Subdivision 33‑D.
Note: Part 5‑1 deals with how payments
can be made.
Subdivision 33‑B—Basic grant amounts
33‑5
Basic grant amounts
The basic grant amount for
a higher education provider for a year is the sum of:
(a) for each *funding cluster to which the
Minister has allocated places to the provider under section 30‑10—the
amount worked out by multiplying:
(i) the *number of
Commonwealth supported places allocated in relation to that funding cluster; by
(ii) the *Commonwealth
contribution amount for a place in that funding cluster; and
(b) 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
(c) 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; and
(d) if the allocation has specified
under paragraph 30‑10(3)(c) a number of Commonwealth supported places
that have an enabling loading—the amount of enabling loading worked out under
the Commonwealth Grant Scheme Guidelines for those places.
33‑10
Commonwealth contribution amounts
The Commonwealth contribution
amount, for a place in a *funding cluster, is:
|
Commonwealth
contribution amount
|
|
Item
|
Funding cluster
|
Commonwealth contribution amount
|
|
1
|
Law, Accounting, Administration, Economics, Commerce
|
$1,674
|
|
2
|
Humanities
|
$4,647
|
|
3
|
Mathematics, Statistics, Behavioural Science, Social
Studies, Education, Computing, Built Environment, Other Health
|
$8,217
|
|
4
|
Clinical Psychology, Allied Health, Foreign Languages,
Visual and Performing Arts
|
$10,106
|
|
5
|
Nursing
|
$11,280
|
|
6
|
Engineering, Science, Surveying
|
$14,363
|
|
7
|
Dentistry, Medicine, Veterinary Science, Agriculture
|
$18,227
|
Note: Commonwealth contribution amounts are indexed
under Part 5‑6.
33‑17
Reductions in assistance for higher education providers failing to meet certain
requirements
(1) A higher education provider’s *basic grant amount
for a year is reduced if:
(a) the Commonwealth Grant Scheme
Guidelines impose on higher education providers requirements to be known as the
National Governance Protocols; and
(b) the Commonwealth Grant Scheme
Guidelines impose on higher education providers requirements to be known as the
Higher Education Workplace Relations Requirements; and
(c) the Minister is satisfied that the
provider does not meet the requirements in paragraphs (a) and (b) as at
the dates that are specified in the Commonwealth Grant Scheme Guidelines in
relation to each of those requirements, in the year preceding the year.
(2) The reduction under subsection (1)
is an amount equal to the amount that would have been the increase under
repealed section 33‑15 if:
(a) the provider had been entitled to
an increase of 7.5% under that section as in force immediately before the
commencement of Part 1 of Schedule 2 to the Higher Education
Legislation Amendment (2007 Budget Measures) Act 2007; and
(b) the *funding clusters were the funding
clusters that existed immediately before the commencement of Part 1 of
Schedule 2 to the Higher Education Legislation Amendment (2007 Budget
Measures) Act 2007; and
(c) the *Commonwealth contribution amount for each
of those funding clusters was the amount that would have been the Commonwealth
contribution amount for the funding cluster for the year if the amounts in the
table in section 33‑10 had not been amended by the Higher
Education Legislation Amendment (2007 Budget Measures) Act 2007 or any
later Act.
Subdivision 33‑C—Adjustments
33‑25
Adjustments
Corrected basic amount is less than the basic grant
amount (Table A and B providers)
(1) The *basic grant amount for a *Table A provider
or a *Table B
provider for a year is reduced by an adjustment if the provider’s *corrected basic
amount for the preceding year was less than 99% of the provider’s basic grant
amount for that year.
(2) The adjustment under subsection (1)
is the lower of the following amounts:
(a) an amount equal to the difference
between:
(i) 99% of the basic grant
amount; and
(ii) the *corrected basic
amount;
(b) 4% of the basic grant amount.
Corrected basic amount is less than the basic grant
amount (non‑Table A and B providers)
(3) The *basic grant amount for a higher education
provider that is not a *Table A provider or a *Table B provider is reduced by an
adjustment if the provider’s *corrected basic amount for the preceding year was less than
the provider’s basic grant amount for that year.
(4) The adjustment under subsection (3)
is an amount equal to the difference between:
(a) the basic grant amount; and
(b) the *corrected basic amount.
Meaning of corrected basic amount
(5) The provider’s corrected basic
amount for a year is what would have been the provider’s *basic grant amount
for the year if:
(a) the *number of Commonwealth supported places
allocated to the provider for that year under section 30‑10 had
equalled the number of Commonwealth supported places provided by the provider
during that year; and
(b) the places allocated had been
distributed under subsection 30‑10(2) between the *funding clusters in a way that
reflected:
(i) the units of study in
which *Commonwealth
supported students were enrolled with the provider during that year; and
(ii) the funding clusters
in which those units are included.
Corrected basic amount is more than the basic grant
amount (Table A and B providers)
(6) The *basic grant amount for a year for a *Table A provider
or a *Table B
provider is increased by an adjustment if the provider’s *corrected basic
amount for the preceding year was more than the provider’s basic grant amount
for the year.
(7) The adjustment under subsection (6)
is the lower of the following amounts:
(a) an amount equal to the difference
between:
(i) the *corrected basic
amount; and
(ii) the *basic grant
amount;
(b) 5% of the basic grant amount.
33‑30
Working out the number of Commonwealth supported places provided
(1) The number of Commonwealth
supported places that a higher education provider has provided during a
particular year is a number equal to the number worked out as follows:
Method statement
Step 1. 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, multiply:
(a) the *EFTSL value of the
unit; by
(b) the number
of persons enrolled with the provider in that unit as *Commonwealth supported students.
Step 2. Add together all
of the amounts worked out under step 1.
(2) For the purposes of this section, if:
(a) a unit of study provided by the
provider forms part of more than one *course of study; and
(b) the provider determines under
subsection 73‑15(2) an *EFTSL value of the unit for each such course;
the unit is taken to be a different unit of study in
respect of each such course.
33‑35
Funding clusters in which units of study are included
The Commonwealth Grant Scheme Guidelines
may specify:
(a) how to determine, for the purposes
of this Act, the *funding
clusters in which units of study are included; or
(b) the particular funding cluster in
which a particular unit of study is included for the purposes of this Act.
33‑37
Adjustments for breach of section 19‑37
(1) A higher education provider’s *basic grant amount
for the grant year is reduced by an adjustment in respect of the grant year if,
on one or more occasions during the grant year, the provider breaches a
condition imposed under section 19‑37.
(2) The adjustment under subsection (1)
is an amount worked out using the formula:
where:
reduction amount is $100.
Note: The reduction amount is indexed under Part 5‑6.
total places allocated is the total number of
Commonwealth supported places allocated under section 30‑10 to the
higher education provider for the grant year.
(3) This section does not apply in relation
to a breach of a condition imposed under section 19‑37 by a higher
education provider if:
(a) the breach consists of requiring a
person to pay money to the provider or another entity; and
(b) as a result of the requirement,
the person paid money to the provider or other entity; and
(c) the Minister has given a written
notice to the provider under subsection (4); and
(d) the provider or other entity
repays the money to the person within 28 days after the Minister gave the
notice to the provider.
(4) If the Minister becomes aware that:
(a) a higher education provider has
breached a condition imposed under section 19‑37; and
(b) the breach consists of requiring a
person to pay money to the provider or another entity;
the Minister must give to the provider a written notice:
(c) requiring repayment, within 28
days after the notice is given, of any money paid to the provider or any other
entity as a result of the requirement; and
(d) stating that failure to repay any
such money within that period will result in a reduction under this section of
the provider’s *basic
grant amount for the grant year in question.
The notice may relate to more than one breach.
(5) A failure by the Minister to give a
notice under subsection (4) in relation to a breach of a condition imposed
under section 19‑37 does not prevent this section from applying in
relation to the breach.
(6) This section does not apply more than
once in relation to a higher education provider’s *basic grant amount for a grant year.
Subdivision 33‑D—Special purpose advances
33‑40
Advances for certain purposes
(1) The Minister may determine that 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.
(2) The Minister may pay an advance to the
provider under subsection (1) on such conditions (if any) as the Minister
determines.
(3) 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.
(4) 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:
(a) the year next following that year;
or
(b) the 2 years next following that
year; or
(c) the 3 years next following that
year;
are reduced by amounts that equal in total the amount of
the advance.
(5) Determinations under subsections (1)
and (2), and reductions under subsection (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
36‑1
Condition of grant to comply with this Division
(1) A higher education provider receives a
grant under this Part on condition that the provider complies with this
Division.
(2) Without limiting subsection (1), the
following provisions of this Division do not of their own force require the
provider to do any act or thing.
Subdivision 36‑B—Conditions relating to Commonwealth supported students
36‑5
Meaning of Commonwealth supported student
(1) A person is a
Commonwealth supported student, in relation to a unit of study, if:
(a) the higher education provider with
which he or she is enrolled in that unit has advised the person in writing that
he or she is a Commonwealth supported student:
(i) in relation to the
unit; or
(ii) if the person is
undertaking a *course
of study with the provider of which the unit forms a part—in relation to that
course of study; and
(b) at the end of the *census date for
the unit, the higher education provider would not have been prohibited, under
section 36‑10 or 36‑15, or both, from so advising the person.
(3) However, the person is not a Commonwealth
supported student in relation to the unit if he or she notifies an *appropriate
officer of the provider that he or she does not wish to be a Commonwealth
supported student in relation to the unit.
(4) A notice under subsection (3):
(a) must be in writing; and
(b) must be given on or before the *census date for
the unit.
36‑10
Advice on whether a person is a Commonwealth supported student
When a provider must not advise that a person is
Commonwealth supported
(1) A higher education provider must not
advise a person that he or she is a *Commonwealth supported student in relation to a unit of
study unless:
(a) a *number of Commonwealth supported places
has been allocated to the provider under section 30‑10 for the year
in which the person is undertaking the unit; and
(b) the unit contributes to the
requirements of a *course
of study in which the person is enrolled with that provider or another higher
education provider; and
(c) the person meets the citizenship
or residency requirements for the purposes of this paragraph (see
subsections (2) and (2A)); and
(d) the unit:
(i) is *covered by the
person’s *Student
Learning Entitlement; or
(ii) wholly consists of *work experience in
industry; or
(iii) is undertaken as part
of an *enabling
course; and
(e) the person:
(i) enrolled in the unit
on or before the *census
date for the unit; and
(ii) at the end of the
census date, remained so enrolled.
(2) A person meets the citizenship or
residency requirements for the purposes of paragraph (1)(c) if the person
is:
(a) an Australian citizen; or
(b) a citizen of New Zealand who will
be resident within Australia for the duration of the unit; or
(c) a *permanent visa holder who will be
resident within Australia for the duration of the unit.
(2A) In determining, for the purposes of
subparagraph (2)(b) or (c), whether a person will be resident within Australia
for the duration of the unit of study, disregard any period of residence
outside Australia if:
(a) it cannot reasonably be regarded
as indicating an intention to reside outside Australia for the duration of the
unit; or
(b) it is required for the purpose of
completing a requirement of that unit.
(2B) Despite subsections (2) and (2A), a
person does not meet the citizenship or residency requirements under
paragraph (2)(b) or (c), if the higher education provider reasonably
expects that he or she will not undertake in Australia any units of study
contributing to the *course
of study of which the unit forms a part.
Persons who do not wish to be Commonwealth supported
(3) A higher education provider must not
advise a person that he or she is a *Commonwealth supported student in relation to a unit of
study if the person has notified an *appropriate officer of the provider that he or she does not
wish to be a Commonwealth supported student in relation to the unit.
(4) A notice under subsection (3):
(a) must be in writing; and
(b) must be given on or before the *census date for
the unit.
Additional requirement for non‑Table A providers
(5) A higher education provider that is not a
*Table A
provider must not advise a person that he or she is a *Commonwealth supported student in
relation to a unit of study unless:
(a) the unit in which the person is
enrolled is within a *national
priority; and
(b) the provider has received a grant
under this Part for that national priority for the year in which the person is
undertaking the unit; and
(c) 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.
Additional requirement relating to work experience in
industry
(6) A higher education provider must not
advise a person that he or she is a *Commonwealth supported student in relation to a unit of
study that wholly consists of *work experience in industry unless:
(a) the unit forms part of a *course of study;
and
(b) the
person is enrolled, or has previously been enrolled, in another unit of study
in that course:
(i) that does not, or did
not, wholly consist of work experience in industry; and
(ii) in relation to which
the person is, or was, a Commonwealth supported student.
Units of study at full fee summer or winter schools
(7) A higher education provider must not
advise a person that he or she is a *Commonwealth supported student in relation to a unit of
study if:
(a) the person undertakes the unit
wholly during a summer school period (the current summer school period)
or a winter school period (the current winter school period); and
(b) the provider has determined that
this subsection applies to the unit.
(8) A higher education provider may determine
that subsection (7) applies to a unit of study only if each person who
could undertake the unit during the current summer school period or current
winter school period could undertake, or could have undertaken, the unit during
a period other than a summer school period or winter school period as part of a
*course of
study undertaken by the person with the higher education provider.
(9) The higher education provider must make
the determination:
(a) before the start of the current
summer school period, if the determination relates to a unit undertaken during
a summer school period; or
(b) before the start of the current
winter school period, if the determination relates to a unit undertaken during
a winter school period.
(10) In this section:
summer school period means a period that
starts on or after 1 November in a year and ends after 1 January, but
before 1 March, in the following year.
winter school period means a period that
starts on or after 1 June in a year and ends on or before 31 August
in that year.
36‑15
Persons not to be advised they are Commonwealth supported
(1) 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:
(a) the enrolment is in an *employer reserved
place; or
(b) the unit forms part of a *bridging course
for overseas‑trained professionals; or
(c) the unit forms part of a course to
which a determination under subsection (2) applies.
(2) The Minister may, by legislative
instrument, determine that:
(a) a specified *course of study is
not one in respect of which students, or students of a specified kind, may be
enrolled in units of study as *Commonwealth supported students; or
(b) a *course of study of a specified type is
not one in respect of which students, or students of a specified kind, may be
enrolled in units of study as *Commonwealth supported students.
(3) In deciding whether to make a
determination under subsection (2), the Minister must have regard to the
effect of the determination on students undertaking the course, or a course of
that type.
(4) A determination of the Minister under subsection (2)
must not be made later than 6 months before the day that students are able next
to commence the specified course, or a course of that type, with the provider.
36‑20
Providers to repay amounts if Student Learning Entitlement is re‑credited
(1) 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:
(a) pay to the person an amount equal
to the payment, or the sum of the payments, that the person made in relation to
his or her *student
contribution amount for the unit; and
(b) pay to the Commonwealth an amount
equal to any *HECS‑HELP
assistance to which the person was entitled for the unit.
(2) Subsection (1) does not apply to the
provider if:
(a) the person’s *Student Learning
Entitlement was re‑credited under section 79‑1 (main case of
re‑crediting a person’s SLE); and
(b) the person enrolled in the unit in
circumstances that make it a replacement unit within the meaning of the *tuition assurance
requirements.
(3) The Higher Education Provider Guidelines
may, in setting out the tuition assurance requirements, specify, in relation to
the re‑crediting of a person’s *Student Learning Entitlement in circumstances to
which subsection (2) applies:
(a) the amount (if any) that is to be
paid to the person; and
(b) the amount (if any) that is to be
paid to the Commonwealth; and
(c) the person (if any) who is to pay
the amounts.
36‑22
Providers to repay amounts etc. for units wholly consisting of work experience
in industry—special circumstances
(1) A higher education provider must, on the *Secretary’s
behalf, determine that this section applies to a person if:
(a) the person has been enrolled as a *Commonwealth
supported student with the provider in a unit of study; and
(aa) the unit would, if completed, form
part of a *course
of study undertaken with that provider or another higher education provider;
and
(b) the unit wholly consists of *work experience in
industry; and
(c) 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
(d) the provider with which the person
is enrolled in the unit is satisfied that special circumstances apply to the
person (see subsection (3)); and
(e) the person applies in writing to
that provider for either or both:
(i) the repayment of
any amounts that the person paid in relation to his or her *student
contribution amount for the unit; or
(ii) the remission of the
person’s *HECS‑HELP
debt in relation to the unit; and
(f) either:
(i) the application is
made before the end of the application period under subsection (5) or (6);
or
(ii) 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.
Note: A HECS‑HELP debt of a person to whom
this section applies is remitted under subsection 137‑5(5).
(2) The provider must:
(a) pay to the person an amount equal
to the payment, or the sum of the payments, that the person made in relation to
his or her *student
contribution amount for the unit; and
(b) pay to the Commonwealth an amount
equal to any *HECS‑HELP
assistance to which the person was entitled for the unit.
(2A) Subsection (2) does not apply to the
provider if the person enrolled in the unit in circumstances that make it a
replacement unit within the meaning of the *tuition assurance requirements.
(2B) The Higher Education Provider Guidelines
may, in setting out the tuition assurance requirements, specify, in relation to
circumstances to which subsection (2A) applies:
(a) the amount (if any) that is to be
paid to the person; and
(b) the amount (if any) that is to be
paid to the Commonwealth; and
(c) the person (if any) who is to pay
the amounts.
Special circumstances
(3) For the purposes of paragraph (1)(d),
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:
(a) are beyond the person’s control;
and
(b) do not make their full impact on
the person until on or after the *census date for the unit; and
(c) 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.
Student Learning Entitlement Guidelines may specify
circumstances
(4) 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 subsection (3) of this
section must be in accordance with any such guidelines.
Note: The matters referred to in paragraphs 79‑5(1)(a),
(b) and (c) (which relate to the re‑crediting of Student Learning
Entitlement) are identical to the matters referred to in paragraphs (3)(a),
(b) and (c) of this section.
Application period where enrolment withdrawn
(5) If:
(a) the person applying under paragraph (1)(e)
has withdrawn his or her enrolment in the unit; and
(b) the higher education provider
gives notice to the person that the withdrawal has taken effect;
the application period for the application is the period
of 12 months after the day specified in the notice as the day the withdrawal
takes effect.
Application period in other cases
(6) If subsection (5) does not apply,
the application period for the application is the period of 12 months after the
end of the period during which the person undertook, or was to undertake, the
unit.
Dealing with applications
(7) If:
(a) the application is made before the
end of the application period under subsection (5) or (6); or
(b) 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;
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.
Statement of reasons
(8) The notice must include a statement of
the reasons for the decision.
Note: Refusals of applications are reviewable under
Part 5‑7.
Secretary may act if provider is unable to
(9) If the provider is unable to act for one
or more of the purposes of subsection (1), or subsection (3), (5) or
(7), the *Secretary
may act as if one or more of the references in those subsections to the
provider were a reference to the Secretary.
36‑22A
Providers to repay amounts etc. for units wholly consisting of work experience
in industry—provider ceases to provide course
(1) A higher education provider must, on the *Secretary’s
behalf, determine that this section applies to a person if:
(a) the person has been enrolled as a *Commonwealth
supported student with the provider in a unit of study; and
(b) the unit would, if completed, form
part of a *course
of study undertaken with the provider; and
(c) the unit wholly consists of *work experience in
industry; and
(d) the person has not completed the
requirements for the unit during the period during which the person undertook,
or was to undertake, the unit because the provider ceased to provide the unit
as a result of ceasing to provide the course of which the unit formed part; and
(e) the *tuition assurance requirements applied to
the provider at the time the provider ceased to provide the unit; and
(f) the person chose the option
designated under the *tuition
assurance requirements as student contribution/fee repayment in relation to the
unit.
Note: A HECS‑HELP debt of a person to whom
this section applies is remitted under subsection 137‑5(5).
(2) The provider must:
(a) pay to the person an amount equal
to the payment, or the sum of the payments, that the person made in relation to
his or her *student
contribution amount for the unit; and
(b) pay to the Commonwealth an amount
equal to any *HECS‑HELP
assistance to which the person was entitled for the unit.
(3) The *Secretary may determine that this section
applies to a person if the provider is unable to do so.
36‑23
Providers to repay amounts etc. for units wholly consisting of work experience
in industry—no tax file numbers
(1) This section applies to a person if:
(a) a higher education provider
cancels the person’s enrolment in a unit of study under subsection 193‑5(1);
and
(b) the unit wholly consists of *work experience in
industry.
Note: A HECS‑HELP debt of a person to whom
this section applies is remitted under subsection 137‑5(5).
(2) The provider must:
(a) pay to the person an amount equal
to the payment, or the sum of the payments, that the person made in relation to
his or her *student
contribution amount for the unit; and
(b) 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
36‑25
Continued support for Commonwealth supported students
(1) 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
being undertaken with the provider, that he or she is a *Commonwealth supported student in
relation to the unit if:
(a) the person is or has been a
Commonwealth supported student in relation to one or more other units of study,
undertaken with the provider, as part of the course; and
(b) the provider is not prohibited,
under section 36‑10 or section 36‑15, or both, from so
advising the person.
(2) A *Table A provider (the host provider)
must advise a person who is enrolled in a unit of study with the provider, as
part of a *course
of study being undertaken with another Table A provider (the home
provider), that he or she is a *Commonwealth supported student in relation to the
unit if:
(a) the person is or has been a
Commonwealth supported student in relation to one or more other units of study
in the course undertaken with the home provider; and
(b) the person must undertake the
unit, because it is required to complete the course; and
(c) the host provider is not
prohibited, under section 36‑10 or section 36‑15, or both,
from so advising the person.
(3) If a higher education provider has, under
subparagraph 36‑5(1)(a)(ii), advised a person that he or she is a
Commonwealth supported student in relation to a *course of study with the provider, then
the higher education provider is taken to have advised the person that he or
she is a Commonwealth supported student in relation to each unit of study
undertaken with the provider, as part of that course.
36‑30
Providers to fill Commonwealth supported places before accepting other
enrolments
Table A providers
(1) If:
(a) 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; and
(b) the provider is not prohibited,
under section 36‑10 or section 36‑15, or both, from
advising the person that he or she is a *Commonwealth supported student in
relation to the unit;
the provider must enrol the person in the unit as a
Commonwealth supported student.
(2) Subsection (1) does not apply, and
is taken never to have applied, in relation to that enrolment if:
(a) in respect of the year in which
the person is enrolled in the unit, the provider has already filled, or fills,
all of the *number
of Commonwealth supported places allocated to the provider for the year under
section 30‑10; or
(b) the person notifies an *appropriate
officer of the provider that he or she does not wish to be a *Commonwealth
supported student in relation to the unit.
Other higher education providers
(3) 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:
(a) completion of the unit is in
furtherance of a *national
priority; and
(b) 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.
(4) Subsection (3) does not apply, and
is taken never to have applied, in relation to that enrolment if:
(a) in respect of the year in which
the person is enrolled in the unit, the provider has already filled, or fills,
all of the *number
of Commonwealth supported places in respect of that *national priority; or
(b) the person notifies an *appropriate
officer of the provider that he or she does not wish to be a *Commonwealth
supported student in relation to the unit.
Notices under paragraph (2)(b) or (4)(b)
(5) A notice under paragraph (2)(b) or
(4)(b):
(a) must be in writing; and
(b) must be given on or before the *census date for
the unit.
36‑32
Commonwealth supported study at a particular campus
Nothing in sections 36‑25 or
36‑30 requires a higher education provider to advise a person that he or
she is a Commonwealth supported student in relation to a unit of study
undertaken at a particular campus of the provider.
36‑40
Providers to cancel enrolments in certain circumstances
(1) A higher education provider must cancel a
person’s enrolment in a unit of study with the provider if the person:
(a) is enrolled as a *Commonwealth
supported student in relation to the unit; and
(b) has not, on or before the *census date for
the unit:
(i) completed, and signed,
a *request
for Commonwealth assistance in relation to the unit or, where the unit forms
part of a *course
of study undertaken with the provider, in relation to the course of study; and
(ii) given it to an *appropriate
officer of the provider.
(2) A higher education provider must cancel a
person’s enrolment in a unit of study with the provider if the person:
(a) is enrolled as a *Commonwealth
supported student in relation to the unit; and
(b) is not entitled to *HECS‑HELP
assistance for the unit; and
(c) has not, on or before the *census date for
the unit, paid to the provider the whole of the person’s *student
contribution amount for the unit.
However, this subsection does not apply if the person’s
student contribution amount for the unit is a nil amount.
(3) A request for Commonwealth
assistance, in relation to a person enrolling in a unit of study with a
higher education provider (where access to the unit was not provided by *Open Universities Australia),
means a document:
(a) in which the person requests the
Commonwealth to provide assistance under this Act in relation to the unit or,
where the unit forms part of a *course of study undertaken with the provider, in relation
to the course of study; and
(b) that is in the form approved by
the Minister.
Subdivision 36‑D—Conditions relating to student contribution amounts
36‑45
Limits on student contribution amounts
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, as the person’s *student contribution amount for the unit,
an amount that exceeds the amount worked out as follows:
36‑50
Provider must not accept up‑front payments of more than 80% of student
contribution amounts
A higher education provider must not
accept, from a person who:
(a) is enrolled in a unit of study
with the provider; and
(b) is entitled to *HECS‑HELP
assistance for the unit;
*up‑front
payments for the unit totalling more than 80% of the person’s *student
contribution amount for the unit.
Note: For entitlement to HECS‑HELP assistance:
see Division 90.
Subdivision 36‑E—Conditions relating to tuition fees
36‑55
Tuition fees for non‑Commonwealth supported students
Tuition fees for units of study
(1) A higher education provider must not
determine, as a person’s *tuition fee for a unit of study, an amount that is less
than:
(a) if paragraph (b) does not
apply—the highest *student
contribution amount that the provider would charge any person who is a *Commonwealth
supported student in relation to the unit; or
(b) such other higher amount as is
specified in the Tuition Fee Guidelines.
(2) Subsection (1) does not apply if the
person is enrolled in an *employer reserved place. However, the provider must not
charge, as the person’s *tuition fees for the unit, amounts that are such that the
sum of:
(a) the tuition fees; and
(b) the *employer contribution amount for the
unit;
is less than:
(c) if paragraph (d) does not apply—the
*student
contribution amount referred to in paragraph (1)(a); or
(d) such amount as is specified in the
Tuition Fee Guidelines for the purposes of paragraph (1)(b).
(3) If a person:
(a) is enrolled in study with a higher
education provider on a *non‑award basis; and
(b) 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 the person’s *fees for the
study, amounts that in total are less than the highest amount that the provider
would charge any person:
(c) who may enrol in the study as a
unit of study; and
(d) who is a *Commonwealth supported student in
relation to the unit.
Subdivision 36‑F—Other conditions
36‑60
Providers to meet the quality and accountability requirements
A higher education provider must meet
the *quality
and accountability requirements.
36‑65
Providers to comply with funding agreement
A higher education provider must comply
with any funding agreement the provider enters into under section 30‑25.
36‑70
Providers to comply with the Commonwealth Grant Scheme Guidelines
(1) The Commonwealth Grant Scheme Guidelines
may specify conditions that higher education providers must comply with for the
purposes of this Division.
(2) A higher education provider must comply
with all such conditions in respect of any year for which the provider receives
a grant under this Part.
(3) 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 a period that includes
that year.
Part 2‑3—Other grants
Division 41—Other grants
41‑1
What this Part is about
Grants under this Part are payable to higher
education providers and other eligible bodies for a variety of purposes.
Note: This Part does not apply to Table C providers:
see section 5‑1.
41‑5
The Other Grants Guidelines
Other grants are also dealt with in the
Other Grants Guidelines. The provisions of this Part indicate when a particular
matter is or may be dealt with in these Guidelines.
Note: The Other Grants Guidelines are made by the
Minister under section 238‑10.
41‑10
Eligibility for grants under this Part
(1) Subject to subsection (2), a body
corporate referred to in an item in the third column of the table is eligible
for grants under this Part, in respect of the year 2005 or a later year, for
the purposes specified in the second column of that item.
|
Eligibility for grants
under this Part
|
|
Item
|
Purpose of grant
|
Who is eligible
|
|
1
|
Grants to promote equality of opportunity in higher
education
|
*Table
A providers
|
|
2
|
Grants to promote the productivity of higher education
providers
|
*Table
A providers
|
|
3
|
Grants to enhance learning and teaching in higher
education
|
*Table
A providers
|
|
4
|
Grants to support national institutes specified in the
Other Grants Guidelines for the purposes of this item
|
*Table
A providers
|
|
5
|
Grants to support the capital development projects of
higher education providers
|
*Table
A providers and *Table
B providers
|
|
6
|
Grants to assist with the cost of higher education
providers’ superannuation liabilities
|
*Table
A providers
|
|
7
|
Grants to support research by, and the research capability
of, higher education providers
|
*Table
A providers and *Table
B providers
|
|
8
|
Grants to support the training of research students
|
*Table
A providers and *Table
B providers
|
|
8A
|
Grants to assist with the cost of providing the practical
component of teacher education
|
*Table
A providers, *Table
B providers, and bodies corporate that are specified in the Other Grants
Guidelines for the purposes of this item
|
|
9
|
Grants to foster collaboration and reform in higher
education
|
*Table
A providers and bodies corporate that are specified in the Other Grants Guidelines
for the purposes of this item
|
|
9A
|
Grants to support diversity and structural reform
|
*Table
A providers, and *Table
B providers that are universities
|
|
10
|
Grants to support the development of systemic
infrastructure used by higher education providers
|
*Table
A providers and bodies corporate that are specified in the Other Grants
Guidelines for the purposes of this item
|
|
11
|
Grants for activities that:
(a) assure and enhance the quality of Australia’s higher
education sector; or
(b) foster an understanding of the importance of, or promote
research and scholarship in, science, social science or the humanities in Australia;
or
(c) support open access to higher education across Australia.
|
*Table
A providers and bodies corporate that are specified in the Other Grants
Guidelines for the purposes of this item
|
|
12
|
Grants to assist higher education providers with the
transitional costs of changes to maximum student contribution amounts
|
Higher education providers to which Commonwealth‑supported
places have been allocated for any year
|
(2) If the
Other Grants Guidelines:
(a) specify
a program under which grants for a particular purpose specified in the table
are to be paid; and
(b) specify extra conditions of
eligibility to receive a grant under the program;
then a body corporate specified in the table in respect of
those grants is not eligible for such a grant unless it complies with those
extra conditions.
41‑15
Grants may be paid under programs
(1) 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.
(2) 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:
(a) the program’s objectives;
(b) the extra conditions of
eligibility to receive a grant under the program;
(c) the amount, being a part of the
amount referred to in section 41‑45 for a year, that will be spent
on the program in that particular year;
(d) the indexation of that amount for
subsequent years, using the method of indexation set out in Part 5‑6;
(e) the method by which the amount of
grants under the program will be determined;
(f) whether grants under a program are
in respect of a year or a project;
(g) the conditions that apply to
grants under the program.
41‑20
Approval of grants
The Minister may approve a grant under
this Part in respect of a year or a project to a body corporate that is
eligible for such a grant.
41‑25
Conditions on grants
A grant is made on the following
conditions:
(a) if the grant is made under a
program and the Other Grants Guidelines specified conditions that apply to a
grant under that program:
(i) on the conditions
provided for in the guidelines; and
(ii) if the body receiving
the grant is a higher education provider—also on the condition that the body
must meet the *quality
and accountability requirements; or
(b) if paragraph (a) does not
apply:
(i) on such conditions (if
any) as the Minister determines in writing; and
(ii) if the body receiving
the grant is a higher education provider—also on the condition that the body
must meet the quality and accountability requirements.
41‑30
Amount of a grant
The amount of a grant is:
(a) 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 determined by that
method; or
(b) if paragraph (a) does not
apply—the amount determined in writing by the Minister.
41‑35
Amounts payable under this Part
If:
(a) a body corporate meets, in respect
of a year, the requirements of the Other Grants Guidelines made for the
purposes of section 41‑15 in relation to a program; or
(b) the Minister approves, under
section 41‑20, a grant to a body corporate in respect of a year or
project;
there is payable to the body corporate concerned, in
respect of that year or project, an amount equal to the amount referred to in
section 41‑30 in respect of that grant.
41‑40
Rollover of grant amounts
(1) If:
(a) a body to which a grant under this
Part has been made in respect of a year fails to spend an amount of that grant;
and
(b) the *Secretary determines in writing that this
section is to apply to the body in respect of that grant;
then so much of the unspent amount as the Secretary
specifies is taken to be granted to the body under this Part in respect of the
next following year.
(2) The amount is taken to be granted for the
same purpose as the original grant.
(3) The grant is taken to be made:
(a) under the same conditions as the
conditions of the original grant—except the grant is taken to be made in
respect of the next following year; or
(b) under such other conditions as are
determined by the *Secretary.
41‑45
Maximum payments for other grants under this Part
(1) The total payments made under this Part
in respect of a year referred to in the table must not exceed the amount
specified next to that year in the table.
|
Maximum payments for
other grants under this Part
|
|
Item
|
Year
|
Amount
|
|
1
|
2005
|
$1,539,636,000
|
|
2
|
2006
|
$1,716,942,000
|
|
3
|
2007
|
$1,768,622,000
|
|
4
|
2008
|
$1,872,116,000
|
|
5
|
2009
|
$1,838,589,000
|
|
6
|
2010
|
$1,811,605,000
|
|
7
|
2011
|
$1,797,426,000
|
(2) Payments made in respect of a project in
a year are taken, for the purposes of subsection (1) to have been made in
respect of that year.
41‑50
List of maximum grant amounts
Before the start of a year, the Minister
must, by legislative instrument, cause a list to be prepared setting out the
maximum amounts of all grants which may be paid in the following year for each
purpose of grant specified in the table in section 41‑10.
Part 2‑4—Commonwealth scholarships
Division 46—Commonwealth scholarships
46‑1
What this Part is about
Grants for scholarships are made to
higher education providers who pay the scholarships to students for the
purposes of the students’ education.
Certain scholarships may be paid
directly to students.
Note: This Part does not apply to Table C providers:
see section 5‑1.
46‑5
The Commonwealth Scholarships Guidelines
*Commonwealth scholarships are also dealt with in
the Commonwealth Scholarships Guidelines. The provisions of this Part indicate
when a particular matter is or may be dealt with in these Guidelines.
Note: The Commonwealth Scholarships Guidelines are
made by the Minister under section 238‑10.
46‑10
Classes of Commonwealth scholarships
There are 3 classes of *Commonwealth
scholarships:
(a) directly‑paid standard
scholarships; and
(aa) indirectly‑paid standard
scholarships; and
(b) postgraduate research
scholarships.
Note: The Commonwealth Scholarships Guidelines set
out the kinds of scholarships in each class.
46‑13
Eligibility of students to receive directly‑paid standard Commonwealth
scholarships
If:
(a) the Commonwealth Scholarships
Guidelines provide for a particular kind of directly‑paid standard *Commonwealth
scholarship; and
(b) those guidelines set out
eligibility requirements for that kind of scholarship; and
(c) a student of:
(i) a *Table A provider;
or
(ii) a higher education
provider to which subparagraph 30‑1(1)(a)(ii) applies;
satisfies those eligibility
requirements; and
(d) the student is selected by the
provider to receive that kind of scholarship; and
(e) the selection is in accordance with
a selection policy maintained by that provider; and
(f) the selection policy complies
with the requirements set out in the Commonwealth Scholarships Guidelines;
the student is entitled to receive from the Commonwealth
that kind of directly‑paid standard Commonwealth scholarship.
46‑15
Eligibility of higher education providers to receive grants for certain
Commonwealth scholarships
(1) *Table A providers, and higher education providers
to which subparagraph 30‑1(1)(a)(ii) applies, are eligible to receive a
grant from the Commonwealth to pay, as a benefit to students, indirectly‑paid
standard *Commonwealth
scholarships to their students.
(2) *Table A providers and *Table B providers are eligible to receive
a grant from the Commonwealth to pay, as a benefit to students, postgraduate
research *Commonwealth
scholarships to their students.
(3) A provider that is eligible to receive a
grant under subsection (1) or (2) is an eligible scholarship
provider.
46‑20
Other matters relating to Commonwealth scholarships
(1) The Commonwealth Scholarships Guidelines
may provide for *Commonwealth
scholarships.
Directly‑paid standard Commonwealth scholarships
(1A) Without limiting subsection (1), the
Commonwealth Scholarships Guidelines may provide for the following matters in
relation to directly‑paid standard *Commonwealth scholarships:
(a) the kinds of scholarships that are
to be directly‑paid standard Commonwealth scholarships;
(b) the eligibility requirements for
each kind of scholarship;
(c) how the amounts of scholarships
are to be determined;
(d) the indexation of amounts of
scholarships, using the method of indexation set out in Part 5‑6;
(e) how scholarships are to be paid;
(f) the conditions that apply to a
particular kind of scholarship;
(g) 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;
(h) the indexation of such an amount
for subsequent years, using the method of indexation set out in Part 5‑6;
(i) the maximum number of students
that a particular higher education provider can select to receive a particular
kind of scholarship for a particular year;
(j) requirements to be complied with
by selection policies maintained by higher education providers;
(k) information that higher education
providers are to give the Minister.
Other Commonwealth scholarships
(2) Without limiting subsection (1), the
Commonwealth Scholarships Guidelines may provide for the following matters in
relation to indirectly‑paid standard *Commonwealth scholarships and
postgraduate research Commonwealth scholarships:
(a) the kinds of scholarships that are
to be indirectly‑paid standard Commonwealth scholarships;
(b) the kinds of scholarships that are
to be postgraduate research Commonwealth scholarships;
(c) which students are eligible for
each kind of scholarship;
(e) the conditions that apply to each
kind of scholarship;
(f) how the amounts of grants to an *eligible
scholarship provider are to be determined;
(g) 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;
(h) the indexation of such an amount
for subsequent years, using the method of indexation set out in Part 5‑6;
(i) how grants to providers are to be
made;
(j) how providers are to determine
the amount of each scholarship;
(k) the indexation of amounts of
scholarships, using the method of indexation set out in Part 5‑6;
(l) how providers are to pay
scholarships.
46‑25
Condition of grants
It is a condition of a grant to a higher
education provider under this Part that the higher education provider to whom
the grant is payable must meet the *quality and accountability requirements.
46‑30
Amounts payable under this Part
The amount that is payable under this
Part to an *eligible
scholarship provider is the amount worked out in accordance with the
Commonwealth Scholarships Guidelines.
46‑35
Rollover of grant amounts
(1) If:
(a) a higher education provider to
which a grant under this Part has been made fails to spend an amount of that
grant; and
(b) the *Secretary determines in writing that this
section is to apply to the provider in respect of that grant;
then so much of the unspent amount as the Secretary
specifies is taken to be granted to the provider under this Part in respect of
the next following year.
(2) The amount is taken to be granted:
(a) under the same conditions as the
conditions of the original grant—except the grant is taken to be made in
respect of the next following year; or
(b) under such other conditions as are
determined by the *Secretary.
46‑40
Maximum payments for Commonwealth scholarships
The total payments made under this Part
in respect of a year referred to in the table must not exceed the amount
specified next to that year in the table.
|
Maximum payments for
Commonwealth Scholarships
|
|
Item
|
Year
|
Amount
|
|
1
|
2004
|
$124,212,000
|
|
2
|
2005
|
$151,452,000
|
|
3
|
2006
|
$179,733,000
|
|
4
|
2007
|
$209,569,000
|
|
5
|
2008
|
$239,305,000
|
|
6
|
2009
|
$250,783,000
|
|
7
|
2010
|
$255,663,000
|
|
8
|
2011
|
$260,211,000
|
Part 2‑5—Reduction and repayment of grants
Division 51—Introduction
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.
Note: This Part does not apply to Table C providers:
see section 5‑1.
51‑5
The Reduction and Repayment Guidelines
Reduction and repayment of grants is
also dealt with in the Reduction and Repayment Guidelines. The provisions of
this Part indicate when a particular matter is or may be dealt with in these
Guidelines.
Note: The Reduction and Repayment Guidelines are
made by the Minister under section 238‑10.
Division 54—In what circumstances may a grant be reduced or required to
be repaid?
54‑1
Decision as to reduction or repayment of a grant
(1) The Minister may determine:
(a) 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
(b) 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.
(2) The Minister may make a determination
under subsection (1) if:
(a) 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; and
(b) the Minister is satisfied that it
is appropriate to take that action (see section 54‑5); and
(c) the Minister complies with the
requirements of Division 60.
54‑5
Appropriateness of requiring reduction or repayment of grant
Without limiting the matters that the
Minister may consider in deciding whether it is appropriate under subsection 54‑1(1)
to take particular action, the Minister may consider any or all of the
following matters:
(a) whether the breach is of a minor
or major nature;
(b) whether the breach has occurred
before and, if so, how often;
(ba) if the breach is a breach of a
condition imposed under section 19‑37—the amount of any adjustment
under section 33‑37 in relation to that breach, or any other breach
by the body, during the same year;
(c) if the body is a higher education
provider—the impact that the breach may have on the body’s students;
(d) if the body is a higher education
provider—the impact of the breach on the higher education provided by the body;
(e) the impact of the breach on Australia’s
reputation as a provider of high quality higher education;
(f) any other matter set out in the
Reduction and Repayment Guidelines.
Division 57—What is the amount of a reduction or repayment?
57‑1
Reduction in amount of grants
(1) If an amount of a grant is to be reduced
under this Part, it must be reduced by an amount determined by the Minister in
writing.
(2) The Reduction and Repayment Guidelines
may set out requirements about how such an amount is to be determined. The
Minister must make his or her determination in accordance with any such
requirements.
57‑5
Amount of the repayment
(1) If an amount of a grant is to be repaid
under this Part, the amount to be repaid is the amount that the Minister
determines in writing.
(2) The amount to be repaid must not exceed
the amount of the grant.
(3) The Reduction and Repayment Guidelines
may set out requirements about how such an amount is to be determined. The
Minister must make his or her determination in accordance with any such requirements.
(4) 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 reducing a grant or requiring repayment of
a grant made?
60‑1
Procedure prior to decision
(1) Before making a decision under paragraph
54‑1(a) or (b) in respect of a body, the Minister must give to the body
notice in writing:
(a) stating that the Minister is
considering reducing the body’s grant, or requiring the repayment of a grant
made to the body, as the case may be; and
(b) stating the amount of the proposed
reduction or repayment and the reasons why the Minister is considering taking
that action; and
(c) inviting the body to make written
submissions to the Minister within 28 days on either or both of the following
matters:
(i) why that action should
not be taken;
(ii) why the amount of the
proposed reduction or repayment should be reduced; and
(d) informing the body that, if no
submission is received under paragraph (c) within the time required, the
action will take effect on the day after the last day for making submissions.
(2) In deciding whether to take the action,
the Minister must consider any submissions received from the body within the 28
day period.
60‑5
Notification of decision
(1) The Minister must notify the body in
writing of his or her decision on whether or not to take the action. The
notice:
(a) must be in writing; and
(b) if a submission was received from
the body within the 28 day period—must specify the day that the decision is to
take effect; and
(c) must be given within the period of
28 days following the period in which submissions may have been given to the
Minister under subsection 60‑1(1).
(2) If no notice is given within the period
provided for in paragraph (1)(c), the Minister is taken to have decided
not to take the action.
60‑10
When a decision takes effect
If the Minister’s decision is to take
the action, the decision takes effect:
(a) if no submission was made under
subsection 60‑1(1)—on the day after the last day for making submissions;
or
(b) if such a submission was made—on
the day specified in the notice under subsection 60‑5(1).
Chapter 3—Assistance to students
Division 65—Introduction
65‑1
What this Chapter is about
This Chapter provides for the Student
Learning Entitlement and for 3 kinds of assistance that the Commonwealth
provides to students.
A sufficient Student Learning
Entitlement is required for a student to access HECS‑HELP assistance
under this Chapter. It also enables a student to access places that are funded
under Part 2‑2 (Commonwealth Grant Scheme).
Note: The
Commonwealth meets all or part of the higher education costs of students who
are enrolled in places funded under Part 2‑2.
The 3 kinds of assistance available
under this Chapter 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);
• 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 most cases) in
the form of a loan from the Commonwealth to the student.
Note: Chapter 4 deals with the repayment of
loans made under this Chapter.
Part 3‑1—Student Learning Entitlement
Division 70—Introduction
70‑1
What this Part is about
Student Learning Entitlement (or SLE)
is needed for many of the forms of assistance under this 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 7 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).
70‑5
The Student Learning Entitlement Guidelines
*Student Learning Entitlement is also dealt with in
the Student Learning Entitlement Guidelines. The provisions of this Part
indicate when a particular matter is or may be dealt with in these Guidelines.
Note: The Student Learning Entitlement Guidelines
are made by the Minister under section 238‑10.
Division 73—What is a person’s Student Learning Entitlement?
73‑1
A person’s Student Learning Entitlement
A person’s Student Learning
Entitlement is the sum of:
(a) the *ordinary SLE that the person has under
section 73‑5; and
(b) any *additional SLE that the person has under
section 73‑20; and
(c) any *life long SLE that the person has under
section 73‑22;
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.
73‑5
Ordinary SLE
Ordinary SLE accruing on 1 January 2005
(1) A person who is an *eligible person on
1 January 2005 has, on that day, an *ordinary SLE equal to 7 *EFTSL.
Ordinary SLE accruing after 1 January 2005
(2) 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 7 *EFTSL.
Meaning of eligible person
(3) An eligible person is:
(a) an Australian citizen; or
(b) a citizen of New Zealand; or
(c) a *permanent visa holder.
73‑10
Meaning of EFTSL
(1) An EFTSL is an equivalent
full‑time student load for a year. It is a measure, in respect of a *course of study,
of the study load for a year of a student undertaking that course of study on a
full‑time basis.
(2) 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.
73‑15
Meaning of EFTSL value
(1) The EFTSL value of a unit
of study is 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.
(2) 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.
(3) If a unit of study is subject to separate
determinations in relation to different *courses of study, a reference in this Act
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 (2)
for the course.
(4) Determinations under this section must be
in accordance with any requirements set out in the Student Learning Entitlement
Guidelines.
73‑20
Additional SLE
(1) A person has an *additional SLE if:
(a) the person is enrolled in a *course of study
with a higher education provider; and
(b) 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
(c) the person meets any other
requirements, relating to additional SLE, set out in the Student Learning
Entitlement Guidelines.
(2) The person is taken to have had the *additional SLE
from the time immediately before he or she enrolled in the *course of study.
(3) The amount of the *additional SLE is an amount
(expressed in *EFTSL)
worked out in accordance with the Student Learning Entitlement Guidelines.
73‑22
Life long SLE
(1) A person has a *life long SLE in the circumstances
specified in the Student Learning Entitlement Guidelines.
(2) The amount of the *life long SLE is an amount
(expressed in *EFTSL)
worked out in accordance with the Student Learning Entitlement Guidelines.
73‑25
SLE not transferable
A person’s *SLE cannot be transferred to, or used by,
another person.
73‑30
Ceasing to be an eligible person
(1) A person ceases to have an *SLE if he or she
ceases to be an *eligible
person.
(2) If a person:
(a) had previously ceased to be an *eligible person;
and
(b) becomes an eligible person again;
on becoming an eligible person again, the person has the
same *SLE (if
any) that he or she had immediately before the last time on which he or she
ceased to be an eligible person.
Division 76—When is a person’s Student Learning Entitlement reduced?
76‑1
Reducing a person’s SLE
(1) A person’s *SLE is reduced if:
(a) at the end of the *census date for a
unit of study with a higher education provider, the person is enrolled in the
unit; and
(b) the person is enrolled in the unit
as part of a *course
of study (other than an *enabling course); and
(c) the person is a *Commonwealth
supported student in relation to the unit; and
(d) the person has, on or before the
census date, completed, signed and given to an *appropriate officer of the provider a *request for
Commonwealth assistance in relation to:
(i) the unit; or
(ii) where the course of
study of which the unit forms a part is undertaken with the provider—the course
of study.
(2) The amount of the reduction is an amount
equal to the *EFTSL
value of the unit of study.
(3) The reduction takes effect immediately
after the *census
date for the unit of study.
(4) This section does not apply if the unit
of study consists wholly of *work experience in industry.
(5) This section does not apply to a unit
that is a replacement unit within the meaning of the *tuition assurance requirements.
Note 1: There are special rules for reduction of a
person’s additional SLE or life long SLE: see sections 76‑5 and 76‑10.
Note 2: A person’s SLE can be re‑credited in some
circumstances: see Division 79.
76‑5
Reducing a person’s additional SLE
(1) 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:
(a) the person’s *ordinary SLE is
less than the *EFTSL
value of the unit; and
(b) the person is enrolled in the unit
as part of the *course
of study in relation to which the additional SLE applies.
(2) If:
(a) a person has both an *additional SLE and
*ordinary
SLE; and
(b) 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:
(c) the person’s ordinary SLE is
reduced to zero; and
(d) the person’s additional SLE is
reduced only to the extent that the ordinary SLE is insufficient to cover the
unit.
76‑10
Reducing a person’s life long SLE
(1) If a person has a *life long SLE, that life long SLE
is not reduced under section 76‑1 in relation to a unit of study
unless:
(a) if the person does not have an *additional SLE—the
person’s *ordinary
SLE is less than the *EFTSL
value of the unit; and
(b) if the person has an additional
SLE—the sum of the person’s ordinary SLE and the person’s additional SLE is
less than the EFTSL value of the unit.
(2) If:
(a) a person has both:
(i) a *life long SLE; and
(ii) an *ordinary SLE or an
*additional
SLE, or both; and
(b) the ordinary SLE or additional SLE
is insufficient (or the ordinary SLE and additional SLE taken together are
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:
(c) the person’s ordinary SLE or
additional SLE is reduced (or both the person’s ordinary SLE and the person’s
additional SLE are reduced) to zero; and
(d) the person’s life long SLE is
reduced only to the extent that the ordinary SLE or additional SLE is
insufficient (or the ordinary SLE and additional SLE taken together are
insufficient) to cover the unit.
Division 79—In what circumstances can a person’s Student Learning
Entitlement be re‑credited?
Subdivision 79‑A—Main case of re‑crediting a person’s SLE
79‑1A
Application of this Subdivision
If Subdivision 79‑B applies
to re‑credit a person’s *SLE with an amount equal to the *EFTSL value of a unit of study,
then this Subdivision does not apply in relation to that unit.
79‑1
Main case of re‑crediting a person’s SLE
(1) 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:
(a) the person has been enrolled in
the unit with the provider; and
(aa) the unit would, if completed, form
part of a *course
of study undertaken with that provider or another higher education provider;
and
(ab) the unit does not wholly consist
of *work
experience in industry; and
(b) 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
(c) the provider is satisfied that
special circumstances apply to the person (see section 79‑5); and
(d) the person applies in writing to the
provider for re‑crediting of the SLE; and
(e) either:
(i) the application is
made before the end of the application period under section 79‑10;
or
(ii) 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.
Note: A HECS‑HELP debt relating to a unit of
study will be remitted if the SLE in relation to the unit is re‑credited:
see subsection 137‑5(4). In addition, it is a condition of the higher
education provider’s funding under Part 2‑2 that payments for the
unit must be repaid: see section 36‑20.
(2) If the provider is unable to act for any
one or more of the purposes of subsection (1), or section 79‑5,
79‑10 or 79‑15, the *Secretary may act as if any one or more of the references
in those provisions to the provider were a reference to the Secretary.
79‑5
Special circumstances
(1) For the purposes of paragraph 79‑1(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:
(a) are
beyond the person’s control; and
(b) do not
make their full impact on the person until on or after the *census date for
the unit of study in question; and
(c) 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.
(2) The Student Learning Entitlement
Guidelines may specify circumstances in which a higher education provider will
be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A
decision of a higher education provider under this section must be in
accordance with any such guidelines.
Note: Guidelines made for the purposes of this
subsection also have effect for the purposes of subsection 36‑22(4)
(repayments etc. for work experience units) and subsection 104‑30(2) (re‑crediting
a person’s FEE‑HELP balance).
79‑10
Application period
(1) If:
(a) the person applying under paragraph
79‑1(1)(d) for the re‑crediting of the person’s *SLE in relation to
a unit of study has withdrawn his or her enrolment in the unit; and
(b) the higher education provider
gives notice to the person that the withdrawal has taken effect;
the application period for the application is the period
of 12 months after the day specified in the notice as the day the withdrawal
takes effect.
(2) If subsection (1) does not apply,
the application period for the application is the period of 12 months after the
end of the period during which the person undertook, or was to undertake, the
unit.
79‑15
Dealing with applications
(1) If:
(a) the application is made before the
end of the application period under section 79‑10; or
(b) 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;
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.
(2) The notice must include a statement of
the reasons for the decision.
Note: Refusals of applications are reviewable under
Part 5‑7.
Subdivision 79‑B—Re‑crediting a person’s SLE if provider ceases to
provide course of which unit forms part
79‑20
Re‑crediting a person’s SLE if provider ceases to provide course of which
unit forms part
(1) 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:
(a) the person has been enrolled in
the unit as part of a *course of study with the provider; and
(b) the person has not completed the
requirements for the unit during the period during which the person undertook,
or was to undertake, the unit because the provider ceased to provide the unit
as a result of ceasing to provide the course of which the unit formed part; and
(ba) the unit does not wholly consist
of *work
experience in industry; and
(c) the *tuition assurance requirements applied to
the provider at the time the provider ceased to provide the unit; and
(d) the person chose the option
designated under the tuition assurance requirements as student
contribution/tuition fee repayment in relation to the unit.
Note: A HECS‑HELP debt relating to a unit of
study will be remitted if the SLE in relation to the unit is re‑credited:
see subsection 137‑5(4). In addition, it is a condition of the higher
education provider’s funding under Part 2‑2 that payments for the
unit must be repaid: see section 36‑20.
(2) The *Secretary may re‑credit the
person’s *SLE
under subsection (1) if the provider is unable to do so.
Subdivision 79‑C—Students without tax file numbers
79‑25
Re‑crediting a person’s SLE—no tax file number
(1) 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:
(a) the provider cancels the person’s
enrolment in the unit under subsection 193‑5(1); and
(b) the unit does not wholly consist
of *work
experience in industry.
Note: A HECS‑HELP debt relating to a unit of
study will be remitted if the SLE in relation to the unit is re‑credited:
see subsection 137‑5(4). In addition, it is a condition of the higher
education provider’s funding under Part 2‑2 that payments for the
unit must be repaid: see section 36‑20.
(2) The *Secretary may re‑credit the
person’s *SLE
under subsection (1) if the provider is unable to do so.
Division 82—When is a unit of study covered by a person’s Student
Learning Entitlement?
82‑1
General rule
A unit of study is covered
by a person’s *SLE
if:
(a) the person enrols in the unit as
part of a *course
of study with a higher education provider; and
(b) the *EFTSL value of the unit does not exceed
the amount of the person’s SLE that is *available to the person at the time of enrolment
in the unit.
82‑5
Availability of a person’s SLE
The amount of a person’s *SLE that is available
to the person at a particular time is the difference between:
(a) the amount of the person’s SLE at
that time; and
(b) the sum of the *EFTSL values of
all of the units of study (if any) in which the person is enrolled, each of
which is a unit of study:
(i) the *census date for
which will occur later than that time; and
(ii) that was *covered by the
person’s SLE at the time of enrolment; and
(iii) in relation to which
the person is a *Commonwealth
supported student.
Example: Assume that Alan has an SLE of 0.75 EFTSL on a
day on which he enrols as a Commonwealth supported student in 2 units of study
with one higher education provider (total EFTSL value of 0.25 EFTSL), and in 3
units of study with another higher education provider (total EFTSL value of
0.38 EFTSL). Assume further that the census dates for all of the units are
later days.
The amount of SLE that is available to
Alan following the enrolments is:
Note that Alan still has an SLE of 0.75
EFTSL, which is unaffected until the first of the census dates for the units.
However, only 0.12 EFTSL can be applied to further enrolments.
If Alan wanted to enrol in another unit of
study with an EFTSL value of 0.125, the unit would not be covered by the
person’s SLE.
Alan could
not be a Commonwealth supported student in relation to the other unit unless,
before the census date for one of the units (with an EFTSL value of at least
0.05) in which he is enrolled, he:
(a) provides written advice to the higher education
provider in question that he did not wish to be a Commonwealth supported
student in relation to the unit; or
(b) discontinues his enrolment in the unit.
82‑10
Additional SLE
A unit of study is not covered by a
person’s *SLE,
despite section 82‑1, if:
(a) the person has an *additional SLE;
and
(b) the *EFTSL value of the unit exceeds the
amount of the person’s *ordinary SLE or *life long SLE that is *available (or the person’s ordinary SLE
and the person’s life long SLE that are 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.
82‑15
Simultaneous enrolments that exceed a person’s SLE
(1) If:
(a) 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
(b) the sum of the *EFTSL values of
the units exceed the amount of the person’s *SLE that is *available to the person 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:
(c) the person chooses not to be a *Commonwealth
supported student in relation to one or more of the other units (excluded
units); and
(d) 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
(e) 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.
(2) A person’s choice under paragraph (1)(c)
in relation to a unit of study is to be made by giving written notice of the
choice:
(a) to an *appropriate officer of the higher
education provider with which the person is enrolled in the unit; and
(b) on or before the *census date for
the unit.
Part 3‑2—HECS‑HELP assistance
Division 87—Introduction
87‑1
What this Part is about
A student may be entitled to HECS‑HELP
assistance for units of study for which he or she is Commonwealth supported, if
certain requirements are met.
The amount of assistance to which the
student may be entitled is based on his or her student contribution amounts for
the units, less any up‑front payments. The assistance is paid to a higher
education provider to discharge the student’s liability to pay his or her
student contribution amounts.
Note 1: Amounts of assistance under this Part may form
part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.
Note 2: This Part does not apply to Table C providers:
see section 5‑1.
87‑5
The HECS‑HELP Guidelines
*HECS‑HELP assistance is also dealt with in
the HECS‑HELP Guidelines. The provisions of this Part indicate when a
particular matter is or may be dealt with in these Guidelines.
Note 1: The HECS‑HELP Guidelines are made by the
Minister under section 238‑10.
Note 2: Matters arising under section 93‑10 may
be dealt with in the Commonwealth Grant Scheme Guidelines.
Division 90—Who is entitled to HECS‑HELP assistance?
90‑1
Entitlement to HECS‑HELP assistance
A student is entitled to *HECS‑HELP
assistance for a unit of study in which the student is enrolled with a higher
education provider as part of a *course of study if:
(a) the student meets the citizenship
or residency requirements under section 90‑5; and
(b) the *census date for the unit is on or after 1 January 2005; and
(c) the student is a *Commonwealth
supported student in relation to the unit; and
(d) either:
(i) at the time of
enrolment, the unit was *covered by the student’s *Student Learning Entitlement; or
(ii) the unit wholly
consists of *work
experience in industry; and
(e) the student:
(i) enrolled in the unit
on or before the census date for the unit; and
(ii) at the end of the
census date, remained so enrolled; and
(f) the student either:
(i) *meets the tax file
number requirements (see section 187‑1); or
(ii) pays, as one or more *up‑front
payments in relation to the unit, 80% of his or her *student contribution amount for the
unit; and
(g) the student has, on or before the
census date, completed, signed and given to an *appropriate officer of the provider a *request for
Commonwealth assistance in relation to the unit or, where the course of study
of which the unit forms a part is undertaken with the provider, in relation to
the course of study.
90‑5
Citizenship or residency requirements
(1) A student meets the citizenship or
residency requirements under this section in relation to a unit of study if the
student is:
(a) an Australian citizen; or
(b) a *permanent humanitarian visa holder who
will be resident in Australia for the duration of the unit.
(2) In determining, for the purpose of
paragraph (1)(b), whether the student will be resident in Australia for
the duration of the unit, disregard any period of residence outside Australia
that:
(a) cannot reasonably be regarded as
indicating an intention to reside outside Australia for the duration of that
unit; or
(b) is required for the purpose of
completing a requirement of that unit.
(3) Despite subsections (1) and (2), a *permanent
humanitarian visa holder does not meet the citizenship or residency
requirements in relation to a unit of study if the provider reasonably expects
that the visa holder will not undertake in Australia any units of study
contributing to the *course
of study of which the unit forms a part.
Division 93—How are amounts of HECS‑HELP assistance worked out?
93‑1
The amount of HECS‑HELP assistance for a unit of study
The amount of *HECS‑HELP assistance to which
a student is entitled for a unit of study is the difference between:
(a) his or her *student contribution amount for the
unit; and
(b) the sum of any *up‑front
payments made in relation to the unit.
93‑5
Student contribution amounts
(1) A person’s student contribution
amount for a unit of study is the amount worked out as follows:
where the person’s student contribution amount for a
place in the unit is:
(a) if only one student contribution
amount has been determined for places in the unit under subsection 19‑87(2)—that
student contribution amount; or
(b) if more than one student
contribution amount has been determined for places in the unit under that
subsection—the student contribution amount determined under that subsection
that applies to the person.
(2) A person’s *student contribution amount for a place
in a unit must not exceed the *maximum student contribution amount for a place in the
unit.
(3) A person’s student contribution
amount for a unit of study is nil if the person undertakes the unit as
part of an *enabling
course. This subsection has effect despite subsection (1).
(4) If an amount worked out by using the
formula in subsection (1) is an amount made up of dollars and cents, round
the amount down to the nearest dollar.
93‑10
Maximum student contribution amounts for places
(1) The maximum student contribution
amount for a place in a unit of study is the amount specified in the
following table in relation to the funding cluster in which the unit is
included.
|
Maximum student
contribution amounts for places
|
|
Item
|
Column 1
For a place in a unit in this funding cluster:
|
Column 2
The maximum student contribution is:
|
|
1
|
Law, Accounting, Administration, Economics, Commerce
|
$8,499
|
|
2
|
Humanities
|
$5,095
|
|
3
|
Mathematics, Statistics, Behavioural Science, Social
Studies, Education, Computing, Built Environment, Other Health
|
(a) for a place in a unit in Mathematics, Statistics,
Computing, Built Environment or Other Health—$7,260; or
(b) for a place in a unit in Behavioural Science or Social
Studies—$5,095; or
(c) for a place in a unit in Education—$4,077.
|
|
4
|
Clinical Psychology, Allied Health, Foreign Languages,
Visual and Performing Arts
|
(a) for a place in a unit in Clinical Psychology, Foreign
Languages or Visual and Performing Arts—$5,095; or
(b) for a place in a unit in Allied Health—$7,260.
|
|
5
|
Nursing
|
$4,077
|
|
6
|
Engineering, Science, Surveying
|
$7,260
|
|
7
|
Dentistry, Medicine, Veterinary Science, Agriculture
|
(a) for a place in a unit in Dentistry, Medicine or
Veterinary Science—$8,499; or
(b) for a place in a unit in Agriculture—$7,260.
|
Note 1: Commonwealth Grant Scheme Guidelines made for
the purposes of section 33‑35 and this section deal with the funding
clusters in which particular units of study are included and whether particular
units are units in a particular part of a funding cluster.
Note 2: Maximum student contribution amounts for places
are indexed under Part 5‑6.
(2) The Commonwealth Grant Scheme Guidelines
may specify, for the purposes of column 2 of the table in subsection (1):
(a) how to determine whether a
particular unit is a unit in a particular part of a *funding cluster; or
(b) that a particular unit is in a
particular part of a funding cluster.
93‑15
Up‑front payments
(1) An up‑front payment,
in relation to a unit of study for which a person is liable to pay his or her *student
contribution amount, is a payment of part of the student’s student contribution
amount for the unit, other than a payment of *HECS‑HELP assistance under this
Part.
(2) The payment must be made on or before the
*census date
for the unit.
(3) A payment made in respect of a person is
not an up‑front payment to the extent that:
(a) the payment; or
(b) if other up‑front payments
have already been made in respect of the person in relation to the unit—the sum
of the payment and all of those other up‑front payments;
exceeds 80% of the person’s *student contribution amount for the unit.
Note 1: The Commonwealth pays 1/4
of any up‑front payments in respect of a student if the total amount of
the up‑front payments, for the unit and the student’s other units with
the same census date, is 80% of the sum of his or her student contribution
amounts for all of his or her units or is $500 or more: see sections 96‑5
and 96‑10.
Note 2: It is a condition of grants under Part 2‑2
that a higher education provider not accept an up‑front payment of more
than 80% of a student’s student contribution amount from a student who is
entitled to HECS‑HELP assistance: see section 36‑50.
Division 96—How are amounts of HECS‑HELP assistance paid?
Note: Part 5‑1 deals generally with
payments by the Commonwealth under this Act.
96‑1
Payments to higher education providers—no up‑front payment of student
contribution amount
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:
(a) as a benefit to the student, lend
to the student the amount of HECS‑HELP assistance; and
(b) pay to the provider the amount
lent in discharge of the student’s liability to pay his or her *student
contribution amount for the unit.
96‑5
Payments to higher education providers—partial up‑front payment of
student contribution amount
General
(1) If:
(a) a student is entitled to an amount
of *HECS‑HELP
assistance for a unit of study with a higher education provider; and
(b) one or more *up‑front
payments have been made for the unit; and
(c) the sum of all of the up‑front
payments made for all of the student’s units of study:
(i) that have the same *census date as
that unit; and
(ii) in relation to which
the student is enrolled with the provider as a *Commonwealth supported student;
is less than 80% of the sum of
the student’s *student
contribution amounts for all of his or her units; and
(d) the
sum of all of the up‑front payments made for all of the units is $500 or
more;
the Commonwealth must pay the amount of HECS‑HELP
assistance in accordance with subsections (2) and (3).
Payment of loan amount
(2) The Commonwealth must:
(a) 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
(b) pay to the provider the amount
lent in discharge of that amount of the student’s liability to pay his or her *student
contribution amount for the unit.
Payment of discount amount
(3) 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 his or her *student
contribution amount for the unit.
Meaning of HECS‑HELP discount
(4) The HECS‑HELP discount
for a unit of study is an amount equal to one quarter of the sum of all of the *up‑front
payments made for the unit.
Example: Robert is required to pay a student contribution
amount of $2,745 by 31 March 2005, and makes an up‑front payment of
$1,000 on 20 March 2005.
Robert is entitled to HECS‑HELP
assistance of $1,745 ($2,745 minus $1,000), which the Commonwealth must pay to
the higher education provider.
The up‑front payment exceeded $500
so there is a HECS‑HELP discount of $250 (one quarter of $1,000). The
Commonwealth lends to Robert the remainder of the HECS‑HELP assistance,
an amount of $1,495 ($1745 minus $250).
96‑10
Payments to higher education providers—full up‑front payment of student
contribution amount
If:
(a) a student is entitled to an amount
of *HECS‑HELP
assistance for a unit of study with a higher education provider; and
(b) one or more *up‑front
payments have been made for the unit; and
(c) the sum of all of the up‑front
payments made for all of the student’s units of study:
(i) that have the same *census date as
that unit; and
(ii) in relation to which
the student is enrolled as a *Commonwealth supported student;
is 80% of the sum of the
student’s *student
contribution amounts for all of his or her units;
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 his or her student
contribution amount for the unit.
Note: HECS‑HELP assistance does not give rise
to a HECS‑HELP debt if there has been an up‑front payment of 80% of
a student’s student contribution amount for the unit and for the student’s
other units with the same census date.
Part 3‑3—FEE‑HELP assistance
Division 101—Introduction
101‑1
What this Part is about
A student may be entitled to FEE‑HELP
assistance for units of study for which he or she is not Commonwealth
supported, if certain requirements are met.
The amount of assistance to which the
student may be entitled is based on his or her tuition fees for the units, but
there is a limit on the total amount of assistance that the student can
receive. The assistance is paid to a higher education provider or, if the
student accesses units through Open Universities Australia, that body, to
discharge the student’s liability to pay his or her tuition fees.
Note: Amounts of assistance under this Part may form
part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.
101‑5
The FEE‑HELP Guidelines
*FEE‑HELP assistance is also dealt with in
the FEE‑HELP Guidelines. The provisions of this Part indicate when a
particular matter is or may be dealt with in these Guidelines.
Note: The FEE‑HELP Guidelines are made by the
Minister under section 238‑10.
Division 104—Who is entitled to FEE‑HELP assistance?
Subdivision 104‑A—Basic rules
104‑1
Entitlement to FEE‑HELP assistance
(1) Subject to sections 104‑2, 104‑3
and 104‑4, a student is entitled to *FEE‑HELP assistance for a unit of
study if:
(a) the student meets the citizenship
or residency requirements under section 104‑5; and
(b) the student’s *FEE‑HELP
balance is greater than zero; and
(c) the *census date for the unit is on or after 1 January 2005; and
(d) the student is not a *Commonwealth
supported student in relation to the unit; and
(e) the unit meets the course
requirements under section 104‑10; and
(f) the unit:
(i) is, or is to be,
undertaken as part of a *course of study; or
(ii) is a unit access to
which was provided by *Open Universities Australia; or
(iii) is part of a *bridging course
for overseas‑trained professionals; and
(g) the student:
(i) enrolled in the unit
on or before the census date for the unit; and
(ii) at the end of the
census date, remained so enrolled; and
(h) the student *meets the tax file
number requirements (see section 187‑1); and
(i) the student has, on or before the
census date:
(i) if access to the unit
was provided by Open Universities Australia—completed, signed and given to an *appropriate
officer of Open Universities Australia a *request for Commonwealth assistance in
relation to the unit; or
(ii) in any other
case—completed, signed and given to an appropriate officer of the higher
education provider a request for Commonwealth assistance in relation to the
unit or, where the course of study of which the unit forms a part is, or is to
be, undertaken with the provider, in relation to the course of study.
104‑2
Failure by a student to complete previous units accessed through Open
Universities Australia
A student is not entitled to *FEE‑HELP
assistance for a unit of study access to which is provided by *Open Universities Australia
if:
(a) the student has already undertaken
8 or more other units of study, access to which was provided by Open
Universities Australia; and
(b) the student did not successfully
complete at least 50% of those other units.
104‑3
Failure by Open Universities Australia to comply with FEE‑HELP
Guidelines etc.
(1) The Minister may determine, by
legislative instrument, that there is to be no entitlement to *FEE‑HELP
assistance for a specified year for units of study to which access is provided
by *Open
Universities Australia, if the Minister is satisfied that Open Universities
Australia has, during the 2 years immediately preceding the specified year,
failed to comply with the FEE‑HELP Guidelines or with subsection (5).
(2) Without limiting the generality of what
may be included in the FEE‑HELP Guidelines, they may include any or all
of the following:
(a) requirements relating to the
financial viability of *Open Universities Australia;
(b) requirements relating to the
quality of tuition accessed through Open Universities Australia;
(c) requirements relating to fairness
in the treatment of persons accessing, or seeking to access, tuition through Open
Universities Australia;
(d) requirements relating to
compliance with this Act, the regulations and other Guidelines made under this
Act;
(e) requirements relating to *tuition fees for
units of study accessed through Open Universities Australia;
(f) requirements relating to the
provision of information to the Commonwealth by Open Universities Australia
that is relevant in any way to the provision of *FEE‑HELP assistance to students
accessing units of study through Open Universities Australia, or the repayment
of the *HELP
debts of those students;
(g) administrative requirements of the
kinds imposed on higher education providers under Parts 5.2 and 5.3 of
this Act.
(3) A student is not entitled to *FEE‑HELP
assistance for a unit of study if:
(a) access to the unit is provided by *Open Universities Australia;
and
(b) the Minister has made a
determination under subsection (1) in relation to the year during which
the unit is accessed; and
(c) the determination was made before
1 July in the year immediately preceding that year.
(5) *Open Universities Australia must comply with
section 19‑37 as if it were a higher education provider.
104‑4
Failure by Open Universities Australia to set tuition fees and census date
(1) This section applies to a unit of study
access to which is provided by *Open Universities Australia during a period ascertained in
accordance with the FEE‑HELP Guidelines.
(2) *Open Universities Australia must determine, for
the unit, one or more *fees that are to apply to students to whom Open
Universities Australia provides access to the unit during the period.
(2AA) In determining more than one *fee under
subsection (2), *Open
Universities Australia may have regard to any matters Open Universities
Australia considers appropriate, other than matters specified in the FEE‑HELP
Guidelines as matters to which Open Universities Australia must not have
regard.
(2A) *Open Universities Australia must not vary a *fee unless Open
Universities Australia:
(a) does so:
(i) before the date
ascertained in accordance with the FEE‑HELP Guidelines; and
(ii) in circumstances
specified in the FEE‑HELP Guidelines; or
(b) does so with the written approval
of the Minister.
(3) A fee includes any tuition,
examination or other fee payable to *Open Universities Australia by those students in relation
to the unit.
(4) A fee does not include a
fee:
(a) payable in respect of an
organisation of students, or of students and other persons; or
(b) payable in respect of the
provision to students of amenities or services that are not of an academic nature;
or
(c) payable in respect of residential
accommodation.
Census date
(5) *Open Universities Australia must set a particular
date to be the *census
date for the unit for the period.
(5A) *Open Universities Australia must not vary a *census date unless
Open Universities Australia:
(a) does so:
(i) before the date
ascertained in accordance with the FEE‑HELP Guidelines; and
(ii) in circumstances
specified in the FEE‑HELP Guidelines; or
(b) does so with the written approval
of the Minister.
Consequence of failure to set tuition fees and census
date
(6) If *Open Universities Australia does not:
(a) determine a *fee in accordance
with subsection (2) for the unit for the period; or
(b) determine a *census date in
accordance with subsection (5) for the unit for the period;
no student to whom Open Universities Australia provides
access to the unit for that period is entitled to *FEE‑HELP assistance for the unit.
104‑5
Citizenship or residency requirements
(1) A student meets the citizenship or
residency requirements under this section in relation to a unit of study if the
student is:
(a) an Australian citizen; or
(b) a *permanent humanitarian visa holder who
will be resident in Australia for the duration of the unit; or
(c) 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.
(2) In determining, for the purpose of
paragraph (1)(b) or (c), whether the student will be resident in Australia
for the duration of the unit, disregard any period of residence outside
Australia that:
(a) cannot reasonably be regarded as
indicating an intention to reside outside Australia for the duration of the
unit; or
(b) is required for the purpose of
completing a requirement of that unit.
(3) Despite subsections (1) and (2), a *permanent
humanitarian visa holder or *permanent visa holder does not meet the citizenship or
residency requirements in relation to a unit of study if the provider
reasonably expects that the visa holder will not undertake in Australia any
units of study contributing to the *course of study, or the *bridging course for overseas‑trained
professionals, of which the unit forms a part.
104‑10
Course requirements
(1) The course requirements for *FEE‑HELP
assistance for a unit of study are that:
(a) if the unit is being undertaken as
part of a *course
of study, the course is not a course that:
(i) is subject to a
determination under subsection (2); or
(ii) is with a higher
education provider that is subject to a determination under subsection (2);
and
(b) if the unit is being undertaken as
part of a course of study with a higher education provider and the course is
not a course that the provider is authorised by a *government accreditation authority to
accredit—the course is an *accredited course.
(2) The Minister may, by legislative
instrument, determine that:
(a) a specified course provided by a
specified higher education provider is a course in relation to which *FEE‑HELP
assistance is unavailable; or
(b) all courses provided by a
specified higher education provider are courses in relation to which FEE‑HELP
assistance is unavailable.
(3) In deciding whether to make a
determination under subsection (2), the Minister must have regard to the
effect of the determination on students undertaking the course or courses.
(4) A determination of the Minister under subsection (2)
must not be made later than 6 months before the day that students are able next
to commence the specified course, or courses, with the provider.
Subdivision 104‑B—FEE‑HELP balances
104‑15
A person’s FEE‑HELP balance
(1) A person’s FEE‑HELP balance at
a particular time is:
(a) if the *FEE‑HELP limit in relation to
the person at the time exceeds the sum of all of the amounts of *FEE‑HELP
assistance and *VET
FEE‑HELP assistance that have previously been payable to the person,
being that sum as reduced by any amounts previously re‑credited under
this Subdivision or Subdivision 7‑B of Schedule 1A—that excess;
and
(b) otherwise—zero.
Note: If an amount is to be re‑credited to a
FEE‑HELP balance, the balance that is to be re‑credited is worked
out immediately before that re‑crediting. The balance is worked out after
the re‑crediting by taking account of the amount re‑credited. If a
person’s FEE‑HELP limit has been reduced, the balance might not increase,
or might not increase by the same amount as the amount re‑credited.
(2) To avoid doubt, the sum referred to in
paragraph (1)(a) includes amounts of *FEE‑HELP assistance and *VET FEE‑HELP
assistance that have been repaid.
104‑20
The FEE‑HELP limit
The FEE‑HELP limit
is:
(a) $80,000; or
(b) in relation to a person who is
enrolled in a *course
of study in medicine, a *course of study in dentistry or a *course of study in veterinary
science, while the person is enrolled in that course—$100,000.
Note: The FEE‑HELP limit is indexed under
Part 5‑6.
104‑25
Main case of re‑crediting a person’s FEE‑HELP balance
(1A) If section 104‑42 applies to re‑credit
a person’s *FEE‑HELP
balance with an amount equal to the amounts of *FEE‑HELP assistance that the person
has received for a unit of study, then this section does not apply in relation
to that unit.
(1) 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:
(a) the person has been enrolled in
the unit with the provider; and
(aa) access to the unit was not
provided by *Open
Universities Australia; and
(b) 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
(c) the provider is satisfied that special
circumstances apply to the person (see section 104‑30); and
(d) the person applies in writing to
the provider for re‑crediting of the FEE‑HELP balance; and
(e) either:
(i) the application is
made before the end of the application period under section 104‑35;
or
(ii) 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.
(2) *Open Universities Australia 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 has received for a unit of study if:
(a) access to the unit was provided by
Open Universities Australia; and
(b) 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
(c) Open Universities Australia is
satisfied that special circumstances apply to the person (see section 104‑30);
and
(d) the person applies in writing to Open
Universities Australia for re‑crediting of the FEE‑HELP balance;
and
(e) either:
(i) the application is
made before the end of the application period under section 104‑35;
or
(ii) Open Universities Australia
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.
Note: A FEE‑HELP debt relating to a unit of
study will be remitted if the FEE‑HELP balance in relation to the unit is
re‑credited: see section 137‑10.
(3) If the provider is unable to act for one
or more of the purposes of subsection (1) or (2), or section 104‑30,
104‑35 or 104‑40, the *Secretary may act as if one or more of the references in
those provisions to the provider were a reference to the Secretary.
104‑27
Re‑crediting a person’s FEE‑HELP balance—no tax file number
(1) 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:
(a) the person has been enrolled in
the unit with the provider; and
(b) subsection 193‑10(1) applies
to the person in relation to the unit.
(2) *Open Universities Australia 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 has received for a unit of study if subsection 193‑10(2)
applies to the person in relation to the unit.
Note: A FEE‑HELP debt relating to a unit of
study will be remitted if the FEE‑HELP balance in relation to the unit is
re‑credited: see section 137‑10.
(3) The *Secretary may re‑credit the
person’s *FEE‑HELP
balance under subsection (1) or (2) if the provider or *Open Universities Australia
is unable to do so.
104‑30
Special circumstances
(1) For the purposes of paragraph 104‑25(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:
(a) are
beyond the person’s control; and
(b) do not
make their full impact on the person until on or after the *census date for
the unit of study in question; and
(c) make it impracticable for the
person to complete the requirements for the unit in the period during which the
person undertook, or was to undertake the unit.
(2) 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.
Note: The matters referred to in paragraphs 79‑5(1)(a),
(b) and (c) (which relate to re‑crediting of Student Learning
Entitlement) are identical to the matters referred to in paragraphs (1)(a),
(b) and (c) of this section.
(3) For the purposes of paragraph 104‑25(2)(c),
special circumstances apply to the person if and only if *Open Universities Australia
is satisfied that circumstances apply to the person that:
(a) are beyond the person’s control;
and
(b) do not make their full impact on
the person until on or after the *census date for the unit of study in question; and
(c) make it impracticable for the
person to complete the requirements for the unit in the period during which the
person undertook, or was to undertake, the unit.
104‑35
Application period
(1) If:
(a) the person applying under 104‑25(1)(d)
for the re‑crediting of the person’s *FEE‑HELP balance in relation to a
unit of study has withdrawn his or her enrolment in the unit; and
(b) the higher education provider
gives notice to the person that the withdrawal has taken effect;
the application period for the application is the period
of 12 months after the day specified in the notice as the day the withdrawal
takes effect.
(1A) If:
(a) the person applying under
paragraph 104‑25(2)(d) for the re‑crediting of the person’s *FEE‑HELP
balance in relation to a unit of study has withdrawn from the unit; and
(b) *Open Universities Australia gives notice
to the person that the withdrawal has taken effect;
the application period for the application is the period
of 12 months after the day specified in the notice as the day the withdrawal
takes effect.
(2) If subsections (1) and (1A) do not
apply, the application period for the application is the period of 12 months
after the period during which the person undertook, or was to undertake, the
unit.
104‑40
Dealing with applications
(1) If:
(a) the application is made under
paragraph 104‑25(1)(d) before the end of the relevant application period;
or
(b) 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;
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.
(1A) If:
(a) the application is made under
paragraph 104‑25(2)(d) before the end of the relevant application period;
or
(b) *Open Universities Australia 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;
Open Universities Australia must, as soon as practicable,
consider the matter to which the application relates and notify the applicant
of the decision of the application.
(2) The notice must include a statement of
the reasons for the decision.
Note: Refusals of applications are reviewable under
Part 5‑7.
104‑42
Re‑crediting a person’s FEE‑HELP balance if provider ceases to
provide course of which unit forms part
(1) 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:
(a) the person has been enrolled in
the unit with the provider; and
(b) the person has not completed the
requirements for the unit during the period during which the person undertook,
or was to undertake, the unit because the provider ceased to provide the unit
as a result of ceasing to provide the course of which the unit formed part; and
(c) the *tuition assurance requirements applied to
the provider at the time the provider ceased to provide the unit; and
(d) the person chose the option
designated under the tuition assurance requirements as student
contribution/tuition fee repayment in relation to the unit.
Note: A FEE‑HELP debt relating to a unit of
study will be remitted if the FEE‑HELP balance in relation to the unit is
re‑credited: see subsection 137‑10(4).
(2) The *Secretary may re‑credit the
person’s *FEE‑HELP
balance under subsection (1) if the provider is unable to do so.
Subdivision 104‑C—Bridging courses for overseas‑trained professionals
104‑45
Meaning of bridging course for overseas‑trained professionals
Courses consisting of subjects or units
(1) One or more subjects or units in which a
person is enrolled with a higher education provider, or to which access is
provided by *Open
Universities Australia, are together a bridging course for overseas‑trained
professionals if:
(a) the person holds an *assessment
statement issued by an *assessing body for a *listed professional occupation; and
(b) 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
(c) the person undertakes, or proposes
to undertake, those additional studies by:
(i) enrolling, or
proposing to enrol, on a *non‑award basis, in those subjects or units with the
provider; or
(ii) accessing, or
proposing to access, those subjects or units through Open Universities Australia;
and
(d) the total student load imposed on
the person in relation to those subjects or units does not exceed the student
load that, in the opinion of the provider or Open Universities Australia,
represents the load imposed on a full‑time student for one year; and
(e) those subjects or units relate to
the assessment statement.
Courses consisting of occupation‑related courses
of instruction
(2) One or more occupation‑related
courses of instruction in which a person is enrolled with a higher education
provider, or to which access is provided by *Open Universities Australia, are together
a bridging course for overseas‑trained professionals if:
(a) the person holds an *assessment
statement issued by an *assessing body for a *listed professional occupation; and
(b) 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
(c) the person prepares, or proposes
to prepare, for those examinations by:
(i) enrolling, or
proposing to enrol, on a *non‑award basis, in those occupation‑related
courses of instruction with the provider; or
(ii) accessing, or
proposing to access, those occupation‑related courses of instruction
through Open Universities Australia; and
(d) the total student load imposed on
the person in relation to those courses does not exceed the student load that,
in the opinion of the provider or Open Universities Australia, represents the
load imposed on a full‑time student for one year; and
(e) those courses relate to the
assessment statement.
Courses consisting of tuition and training programs
(3) A tuition and training program in which a
person is enrolled with a higher education provider, or to which access is provided
by *Open
Universities Australia, is a bridging course for overseas‑trained
professionals if:
(a) the person holds an *assessment
statement issued by an *assessing body for a *listed professional occupation; and
(b) 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
(c) the person undertakes, or proposes
to undertake, such a program by:
(i) enrolling, or
proposing to enrol, on a *non‑award basis, in a tuition and training program
with the provider; or
(ii) accessing, or
proposing to access, a tuition and training program through Open Universities
Australia; and
(d) the total student load imposed on
the person in relation to that program does not exceed the student load that,
in the opinion of the provider or Open Universities Australia, represents the
load imposed on a full‑time student for one year; and
(e) that program relates to the
assessment statement.
104‑50
Assessment statements
(1) An *assessing body for a *listed
professional occupation may give to a person who:
(a) holds a qualification that:
(i) was awarded in a
foreign country; and
(ii) relates to that
occupation; and
(b) proposes to seek entry to that
occupation:
(i) in Australia; or
(ii) 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 (2),
the person would meet the *requirements for entry to that occupation. The statement is
an assessment statement.
(2) The statement may refer to any or all of
the following:
(a) successfully undertaking
additional studies of a kind specified in the statement;
(b) being successful in one or more
examinations specified in the statement;
(c) successfully undertaking a tuition
and training program of a kind specified in the statement.
Note: A statement could specify one of the things
mentioned in paragraph (a), (b) or (c) or any combination of the things
mentioned in those paragraphs.
(3) This section does not affect the power of
an *assessing
body to charge fees for an *assessment statement under subsection (1).
104‑55
Meaning of assessing body
(1) 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.
(2) This section does not prevent 2 or more
persons or bodies from being assessing bodies for the same *listed
professional occupation.
(3) 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) a particular State; or
(b) the Australian Capital Territory;
or
(c) the Northern Territory.
Such an assessing body is an assessing body of a
State or Territory.
104‑60
Meaning of listed professional occupations
(1) A listed professional occupation
is an *occupation
specified in the FEE‑HELP Guidelines as a listed professional occupation.
(2) To avoid doubt, an *occupation may be
specified even if it is not one of the traditional professions.
104‑65
Occupation includes part of an occupation
(1) An occupation includes a
part of an occupation specified in the FEE‑HELP Guidelines as an
occupation in its own right.
(2) The following are examples of ways in
which a part of an occupation can be specified:
(a) so much of an occupation as has a
bachelor degree (or equivalent) entry requirement;
(b) so much of an occupation as
consists of a particular specialisation.
104‑70
Requirements for entry to an occupation
(1) The requirements for entry,
to a *listed
professional occupation, are the educational requirements:
(a) for entry to that occupation in Australia;
or
(b) if the requirements are referred
to in an *assessment
statement given by an *assessing body of a State or Territory for that
occupation—for entry to that occupation in that State or Territory.
(2) A requirement for entry to a *listed
professional occupation may:
(a) be imposed by or under a law; or
(b) be imposed by or under the rules
of a body; or
(c) consist of eligibility for
membership of a body; or
(d) arise as a generally accepted
employment or industry practice.
(3) However, neither of the following is a
requirement for entry to a *listed professional occupation:
(a) English language training relating
to general aspects of written communication or verbal communication, or both;
or
(b) being successful in:
(i) the Occupational
English Test administered by Language Australia; or
(ii) any other English
language test, where that test does not form an integral part of an occupation‑related
study unit, an occupation‑related course of instruction or an occupation‑related
tuition and training program.
Division 107—How are amounts of FEE‑HELP assistance worked out?
107‑1
The amount of FEE‑HELP assistance for a unit of study
The amount of *FEE‑HELP assistance to which
a student is entitled for a unit of study is the difference between:
(a) the student’s *tuition fee for
the unit; and
(b) the sum of any *up‑front
payments made in relation to the unit.
Note: A lesser amount may be payable because of
section 107‑10.
107‑5
Up‑front payments
(1) An up‑front payment,
in relation to a unit of study for which a student is liable to pay a *tuition fee, is a
payment of all or part of the student’s tuition fee for the unit, other than a
payment of *FEE‑HELP
assistance under this Part.
(2) The payment must be made on or before the
*census date
for the unit.
107‑10
Amounts of FEE‑HELP assistance and VET FEE‑HELP assistance must not
exceed the FEE‑HELP balance
Amount of FEE‑HELP assistance for one unit
(1) 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:
(a) there is no other:
(i) unit of study, with
the same census date, for which the student is entitled to FEE‑HELP
assistance; or
(ii) *VET unit of study,
with the same census date, for which the student is entitled to *VET FEE‑HELP
assistance; and
(b) 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.
Amount of FEE‑HELP assistance for more than one
unit
(2) If the sum of:
(a) the amount of *FEE‑HELP
assistance to which a student would be entitled under section 107‑1
for a unit of study; and
(b) any other amounts of:
(i) 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; and
(ii) *VET FEE‑HELP
assistance to which the student would be entitled under clause 52 of
Schedule 1A 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 (1) of this section, the total
amount of FEE‑HELP assistance and VET FEE‑HELP assistance to which
the student is entitled for all of those units is an amount equal to that FEE‑HELP
balance.
Example: Kath has a FEE‑HELP balance of $2,000, and
is enrolled in 4 units with the same census date. Kath’s tuition fee for each
unit is $600. The total amount of FEE‑HELP assistance to which Kath is
entitled for the units is $2,000, even though the total amount of her tuition
fees for the units is $2,400.
(3) If the student has enrolled in the units
with more than one higher education provider or *VET provider, and access to none of the
units was provided by *Open Universities Australia, the student must notify each
provider of the proportion of the total amount of *FEE‑HELP assistance or *VET FEE‑HELP
assistance that is to be payable in relation to the units in which the student
has enrolled with that provider.
(4) If access to some, but not all, of the
units of study was provided by *Open Universities Australia, the student must:
(a) notify Open Universities Australia
of the proportion of the total amount of *FEE‑HELP assistance that is to be
payable in relation to units access to which was provided by Open Universities Australia;
and
(b) notify each higher education
provider or *VET
provider at which the student is enrolled in a unit, access to which was not
provided by Open Universities Australia, of the proportion of the total amount
of FEE‑HELP assistance or *VET FEE‑HELP assistance that is to be payable in
relation to that unit.
Division 110—How are amounts of FEE‑HELP assistance paid?
Note: Part 5‑1 deals generally with
payments by the Commonwealth under this Act.
110‑1
Payments
(1) If a student is entitled to an amount of *FEE‑HELP
assistance for a unit of study with a higher education provider, and access to
the unit was not provided by *Open Universities Australia, the Commonwealth must:
(a) as a benefit to the student, lend
to the student the amount of FEE‑HELP assistance; and
(b) pay the amount lent to the
provider in discharge of the student’s liability to pay his or her *tuition fee for the
unit.
(2) If a student is entitled to an amount of *FEE‑HELP
assistance for a unit of study and access to the unit was provided by *Open Universities Australia,
the Commonwealth must:
(a) as a benefit to the student, lend
to the student the amount of FEE‑HELP assistance; and
(b) pay the amount lent to Open
Universities Australia in discharge of the student’s liability to pay his or
her *tuition
fee for the unit.
110‑5
Effect of FEE‑HELP balance being re‑credited
(1) If, under subsection 104‑25(1), 104‑27(1)
or section 104‑42, a person’s *FEE‑HELP balance is re‑credited
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.
Note: The provider must repay the amount under
subsection (1) even if the person’s FEE‑HELP balance is not
increased by an amount equal to the amount re‑credited.
(1A) Subsection (1) does not apply to the
provider if:
(a) the person’s *FEE‑HELP
balance was re‑credited under subsection 104‑25(1) (main case of re‑crediting
a person’s FEE‑HELP balance); and
(b) the person enrolled in the unit in
circumstances that make it a replacement unit within the meaning of the *tuition assurance
requirements.
(1B) The Higher Education Provider Guidelines
may, in setting out the tuition assurance requirements, specify, in relation to
the re‑crediting of a person’s *FEE‑HELP balance in circumstances to which subsection (1A)
applies:
(a) the amount (if any) that is to be
paid to the Commonwealth; and
(b) the person (if any) who is to pay
the amounts.
(2) If, under subsection 104‑25(2) or
104‑27(2), *Open
Universities Australia re‑credits a person’s *FEE‑HELP balance with an amount
relating to *FEE‑HELP
assistance for a unit of study, Open Universities Australia 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
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.
The purpose of OS‑HELP
assistance is to help students based in Australia to do part of their course of
study overseas.
Note: Amounts of assistance under this Part may form
part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.
115‑5
The OS‑HELP Guidelines
*OS‑HELP assistance is also dealt with in the
OS‑HELP Guidelines. The provisions of this Part indicate when a
particular matter is or may be dealt with in these Guidelines.
Note: The OS‑HELP Guidelines are made by the
Minister under section 238‑10.
Division 118—Who is entitled to OS‑HELP assistance?
118‑1
Entitlement to OS‑HELP assistance
(1) A student is entitled to *OS‑HELP
assistance in relation to a period of 6 months if:
(a) the student meets the citizenship
or residency requirements under section 118‑5; and
(b) the student has not received OS‑HELP
assistance on more than one other occasion; and
(c) the student is enrolled in an *undergraduate
course of study with a higher education provider (the home provider);
and
(d) the student meets the prior study
requirements under section 118‑7; and
(e) the student meets the overseas
study requirements under section 118‑10; and
(f) 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 0.5 EFTSL in order to complete the course requirements
for that course of study; and
(g) the student *meets the tax file
number requirements (see section 187‑1); and
(h) the student has completed, signed
and given to an *appropriate
officer of the home provider a *request for Commonwealth assistance in relation to that
course of study; and
(ha) the student has applied to the
home provider for receipt of OS‑HELP assistance in relation to the
period; and
(i) the home provider has selected
the student for receipt of OS‑HELP assistance in relation to the period
(see section 118‑15).
(2) However, the student is not entitled to *OS‑HELP
assistance in relation to that period if:
(a) another higher education provider
has granted OS‑HELP assistance to the student in relation to:
(i) that period; or
(ii) a period that overlaps
with that period; or
(b) the student applies to the home
provider for the assistance after the student has completed the study in
relation to the period.
(3) To avoid doubt, the student may be
outside Australia when the student applies to the home provider for receipt of *OS‑HELP
assistance.
118‑5
Citizenship or residency requirements
The citizenship or residency
requirements for *OS‑HELP
assistance are that the student in question is:
(a) an Australian citizen; or
(b) a *permanent humanitarian visa holder.
118‑7
Prior study requirements
The prior study requirements for *OS‑HELP
assistance are that:
(a) the student in question has
completed units of study in Australia that count towards the course
requirements for the *course
of study; and
(b) the units of study have a total *EFTSL value of at
least one *EFTSL;
and
(c) the student was a *Commonwealth
supported student in relation to the units.
118‑10
Overseas study requirements
The overseas study requirements for *OS‑HELP
assistance are that:
(a) the student in question:
(i) is enrolled in full‑time
study with an overseas higher education institution or is enrolled with the
home provider in full‑time study at an overseas campus or enrolled with
another higher education provider in full‑time study at an overseas
campus; and
(ii) will be outside Australia
while undertaking that study; and
(b) the study commences on or after 1 January 2005; and
(c) the study outside Australia will
count towards the course requirements of the *course of study in which the student is
enrolled with the home provider.
118‑15
Selection of students for receipt of OS‑HELP assistance
(1) The OS‑HELP Guidelines may set out
principles and procedures that higher education providers must follow in deciding
whether to select students for receipt of *OS‑HELP assistance.
(3) Any decision by a higher education
provider whether to select a student for receipt of *OS‑HELP assistance must be
made in accordance with the OS‑HELP Guidelines.
(4) Without limiting the matters that may be
included in the OS‑HELP Guidelines made for the purposes of subsection (3),
those guidelines may deal with:
(a) the number of its students whom
higher education providers may select for receipt of *OS‑HELP assistance; or
(b) how that number is to be
determined.
Division 121—How are amounts of OS‑HELP assistance worked out?
121‑1
The amount of OS‑HELP assistance for a period
(1) 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.
(2) The amount must not exceed:
(a) the amount specified in the
application; or
(b) the *maximum OS‑HELP amount for a period
of 6 months.
(3) The amount must not be less than the
higher education provider’s *minimum OS‑HELP amount, if the provider has a minimum
OS‑HELP amount.
121‑5
Maximum OS‑HELP amount
The maximum OS‑HELP amount,
for a period of 6 months, is $5,000.
Note: The maximum OS‑HELP amount is indexed
under Part 5‑6.
121‑10
Minimum OS‑HELP amounts
(1) A higher education provider may
determine, in writing, its *minimum OS‑HELP amount.
(2) The determination has effect until:
(a) it is replaced by a later
determination; or
(b) it is revoked.
Division 124—How are amounts of OS‑HELP assistance paid?
Note: Part 5‑1 deals generally with
payments by the Commonwealth under this Act.
124‑1
Amounts of OS‑HELP assistance are lent to students
(1) 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 to the student the amount of OS‑HELP assistance.
(2) 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 to the student the amount lent.
(3) 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
129‑1
What this Chapter is about
Loans that the Commonwealth makes to
students under Chapter 3 are repayable under this Chapter. Loans that the
Commonwealth makes to students under Schedule 1A are also repayable under
this Chapter.
Each loan is incorporated into the
person’s accumulated HELP debt (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
134‑1
What this Part is about
A person incurs a HELP debt if he or
she receives, as HECS‑HELP assistance, FEE‑HELP assistance or OS‑HELP
assistance, a loan from the Commonwealth under Chapter 3.
A person also incurs a HELP debt if he
or she receives, as VET FEE‑HELP assistance, a loan from the Commonwealth
under Schedule 1A.
HELP debts are incorporated into the
person’s accumulated HELP debt. This accumulated debt forms the basis of
working out the amounts that the person is obliged to repay (see Part 4‑2).
Division 137—How do HELP debts arise?
137‑1
HELP debts
The following are HELP debts:
(a) *HECS‑HELP debts;
(b) *FEE‑HELP debts;
(c) *OS‑HELP debts;
(d) *VET FEE‑HELP debts.
137‑5
HECS‑HELP debts
Incurring HECS‑HELP debts
(1) A person incurs a debt to the
Commonwealth if, under section 96‑1 or 96‑5, the Commonwealth:
(a) makes a loan to the person; and
(b) uses the amount lent to make a
payment in discharge of the person’s liability to pay his or her *student
contribution amount for a unit of study.
The debt is a HECS‑HELP debt.
(2) The amount of the *HECS‑HELP debt is the amount
of the loan.
When HECS‑HELP debts are incurred
(3) A *HECS‑HELP debt is taken to have
been incurred by a person immediately after the *census date for the unit, whether or not
the Commonwealth has made a payment in respect of the person’s *student
contribution amount for the unit.
Remission of HECS‑HELP debts
(4) 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.
(5) A person’s *HECS‑HELP debt, in relation to a
unit of study that wholly consists of *work experience in industry, is taken to be
remitted if section 36‑22, 36‑22A or 36‑23 applies to
the person (even if subsection 36‑22(2A) applies to the provider in
relation to the person).
137‑10
FEE‑HELP debts
Incurring FEE‑HELP debts
(1) A person incurs a debt to the
Commonwealth if, under section 110‑1, the Commonwealth:
(a) makes a loan to the person; and
(b) uses the amount lent to make a
payment in discharge of the person’s liability to pay his or her *tuition fee for a
unit of study.
The debt is a FEE‑HELP debt.
(2) The amount of the *FEE‑HELP debt is:
(a) if the loan relates to *FEE‑HELP
assistance for a unit of study that forms part of an *undergraduate course of study—an
amount equal to 120% of the loan; or
(b) if paragraph (a) does not
apply—the amount of the loan.
When FEE‑HELP debts are incurred
(3) A *FEE‑HELP debt is taken to have been
incurred by a person immediately after the *census date for the unit, whether or not
the Commonwealth has made a payment in respect of the person’s *tuition fee for
the unit.
Remission of FEE‑HELP debts
(4) 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, 104‑27 or 104‑42 in relation to
the unit.
Note: The debt is taken to be remitted even if the
person’s FEE‑HELP balance is not increased by an amount equal to the
amount re‑credited.
137‑15
OS‑HELP debts
Incurring OS‑HELP debts
(1) A person incurs a debt to the
Commonwealth if, under section 124‑1, the Commonwealth makes a loan
to the person. The debt is an OS‑HELP debt.
(2) The amount of the *OS‑HELP debt is an amount
equal to 120% of the amount of the loan.
When OS‑HELP debts are incurred
(3) 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.
137‑18
VET FEE‑HELP debts
Incurring VET FEE‑HELP debts
(1) A person incurs a debt to the
Commonwealth if, under clause 55 of Schedule 1A, the Commonwealth:
(a) makes a loan to the person; and
(b) uses the amount lent to make a
payment in discharge of the person’s liability to pay his or her *VET tuition fee
for a *VET
unit of study.
The debt is a VET FEE‑HELP debt.
(2) The amount of the *VET FEE‑HELP debt is the
amount equal to 120% of the loan.
When VET FEE‑HELP debts are incurred
(3) A *VET FEE‑HELP debt is taken to have
been incurred by a person immediately after the *census date for the unit, whether or not
the Commonwealth has made a payment in respect of the person’s *VET tuition fee
for the unit.
Remission of VET FEE‑HELP debts
(4) A person’s *VET FEE‑HELP debt in relation to a *VET unit of study
is taken to be remitted if the person’s *FEE‑HELP balance is re‑credited
under clause 46, 47 or 51 of Schedule 1A in relation to the unit.
Note: The debt is taken to be remitted even if the
person’s FEE‑HELP balance is not increased by an amount equal to the
amount re‑credited.
137‑20
HELP debt discharged by death
Upon the death of a person who owes a *HELP debt to the
Commonwealth, the debt is taken to have been paid.
Note: HELP debts are not provable in bankruptcy: see
subsection 82(3AB) of the Bankruptcy Act 1966.
Division 140—How are accumulated HELP debts worked out?
Subdivision 140‑A—Outline of this Division
140‑1
Outline of this Division
(1) There are 2 stages to working out a
person’s *accumulated
HELP debt for a financial year.
Stage 1—Former accumulated HELP debt
(2) The *former accumulated HELP debt is worked
out by adjusting the preceding financial year’s *accumulated HELP debt to take account of:
(a) changes in the Consumer Price
Index; and
(b) the *HELP debts that he or she incurs during
the last 6 months of the preceding financial year; and
(c) *voluntary repayments of the debt; and
(d) *compulsory repayment amounts in respect
of the debt.
(See Subdivision 140‑B.)
Stage 2—Accumulated HELP debt
(3) The person’s *accumulated HELP debt is worked out from:
(a) his or her *former accumulated HELP debt; and
(b) the *HELP debts that he or she incurs during
the first 6 months of the financial year; and
(c) *voluntary repayments of those debts.
(See Subdivision 140‑C.)
Note: Incurring that financial year’s accumulated
HELP debt discharges the previous accumulated HELP debt and HELP debts under
this Part: see section 140‑35.
Subdivision 140‑B—Former
accumulated HELP debts
140‑5
Working out a former accumulated HELP debt
(1) A person’s former accumulated HELP
debt, in relation to the person’s *accumulated HELP debt for a financial
year, is worked out by multiplying:
(a) the amount worked out using the
following method statement; by
(b) the *HELP debt indexation factor for 1 June
in that financial year.
Method statement
Step 1. Take the person’s
*accumulated
HELP debt for the immediately preceding financial year. (This amount is taken
to be zero if the person has no accumulated HELP debt for that financial year.)
Step 2. Take the HELP
debts (if any) that the person incurred during the last 6 months of the
immediately preceding financial year. Group them according to whether the debts
are in relation to:
(a) units
undertaken with a higher education provider that formed part of one particular *course of study
with that provider; or
(b) units
undertaken with a higher education provider that formed part of one particular
course of study with another higher education provider; or
(c) units that
formed part of one particular *bridging course for overseas‑trained professionals;
or
(d) units access
to which was provided by *Open Universities Australia; or
(e) *OS‑HELP
assistance, the entitlement to which relates to the person’s enrolment in an *undergraduate
course of study with one particular higher education provider (see paragraph
118‑1(1)(c)); or
(f) units
undertaken with a *VET
provider that formed part of one particular *VET course of study with that provider;
or
(g) units
undertaken with a VET provider that formed part of one particular VET course of
study with another VET provider.
Note: There
will be more than one group of debts under paragraph (a) if the person
incurred debts in relation to more than one course of study with a provider.
Similarly, there could be more than one group of debts under
paragraph (b), (c), (e), (f) or (g).
Step 2A. Work out the total
for each group of debts. If the total for a particular group is an amount
consisting of a number of whole dollars and a number of cents, the total for
that group is taken to be the number of whole dollars. If the total for a group
is an amount of less than one dollar, the total for the group is taken to be
zero.
Step 2B. If there is more
than one group of debts for the person, add together the totals for all of the
groups.
Step 3. Subtract the sum
of the amounts by which the person’s debts referred to above are reduced
because of any *voluntary
repayments that have been made during the period:
(a) starting on
1 June in the immediately preceding financial year; and
(b) ending
immediately before the next 1 June.
Step 4. Subtract
the sum of all of the person’s *compulsory repayment amounts that:
(a) were
assessed during that period (excluding any assessed as a result of a *return given
before that period); or
(b) were
assessed after the end of that period as a result of a return given before the
end of that period.
Step 5. Subtract the sum
of the amounts by which any *compulsory repayment amount of the person is increased
(whether as a result of an increase in the person’s *taxable income of an *income year or otherwise)
by an amendment of an assessment made during that period.
Step 6. Add the sum of
the amounts by which any *compulsory repayment amount of the person is reduced
(whether as a result of a reduction in the person’s *taxable income of an *income year or
otherwise) by an amendment of an assessment made during that period.
Example: Lorraine is studying part‑time for a Degree
of Bachelor of Communications. On 1 June 2007 Lorraine had an accumulated
HELP debt of $15,000. She incurred a HELP debt of $1,500 on 31 March 2007. She made a voluntary repayment of $550 (which includes a voluntary repayment
bonus of $50) on 1 May 2008. Lorraine lodged her 2006‑07 income tax
return and a compulsory repayment amount of $3,000 was assessed and notified on
her income tax notice of assessment on 3 September 2007.
To work out Lorraine’s former accumulated
HELP debt before indexation on 1 June 2008:
Step 1: Take the previous accumulated HELP debt
of $15,000 on 1 June 2007.
Step 2: Add the HELP debt of $1,500 incurred on
31 March 2007.
Step 3: Subtract the $550 voluntary repayment
made on 1 May 2008.
Step 4: Subtract the $3,000 compulsory
repayment assessed on 3 September 2007.
Steps 5 and 6: Do not apply because since 1 June 2007 Lorraine had no amendments to any assessment.
Lorraine’s former accumulated HELP debt
before indexation on 1 June 2008 is:
If, for
example, the indexation factor for 1 June 2008 were 1.050, then the former
accumulated HELP debt would be:
(2) For the purposes of this section, 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.
140‑10
HELP debt indexation factor
(1) The HELP debt indexation factor
for 1 June in a financial year is the number (rounded to 3 decimal places)
worked out as follows:
Method statement
Step 1. Add:
(a) the *index number for
the *quarter
ending on 31 March in that financial year; and
(b) the index
numbers for the 3 quarters that immediately preceded that quarter.
Step 2. Add:
(a) the *index number for
the *quarter
ending on 31 March in the immediately preceding financial year; and
(b) the index
numbers for the 3 quarters that immediately preceded that quarter.
Step 3. The HELP
debt indexation factor for 1 June in the financial year is the
amount under step 1 divided by the amount under step 2.
(2) For the purposes of rounding a *HELP debt
indexation factor, the third decimal place is rounded up if, apart from the
rounding:
(a) the factor would have 4 or more
decimal places; and
(b) the fourth decimal place would be
a number greater than 4.
140‑15
Index numbers
(1) 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.
(2) Subject to subsection (3), if, at
any time before or after the commencement of this Act:
(a) the *Australian Statistician has published or
publishes an *index
number in respect of a *quarter; and
(b) that index number is in
substitution for an index number previously published by the Australian
Statistician in respect of that quarter;
disregard the publication of the later index for the
purposes of this section.
(3) 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, have regard only to *index numbers
published in terms of the new reference base.
140‑20
Publishing HELP debt indexation factors
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 HELP debts
140‑25
Working out an accumulated HELP debt
(1) A person’s accumulated HELP debt,
for a financial year, is worked out as follows:
where:
former accumulated HELP debt is the person’s *former accumulated
HELP debt in relation to that *accumulated HELP debt.
HELP debt repayments is the sum of all of the
*voluntary
repayments (if any) paid, on or after 1 July in the financial year and
before 1 June in that year, in reduction of the *HELP debts incurred in that year.
HELP debts incurred means the amount worked
out using the method statement in subsection (1A).
Example: Paula is studying part‑time for a Degree of
Bachelor of Science. On 1 June 2009, her former accumulated HELP debt was
worked out using Subdivision 140‑B to be $20,000. She incurred a
HELP debt of $1,500 on 31 August 2008. No repayments have been made in the
12 months from 1 June 2008.
Paula’s accumulated HELP debt on 1 June 2009 is worked out by taking her former accumulated HELP debt of $20,000 and
adding the $1,500 HELP debt incurred on 31 August 2008. That is:
(1A) For the purposes of the definition of HELP
debts incurred in subsection (1), use the following method
statement:
Step 1. Take the HELP
debts (if any) that the person incurred during the first 6 months of the
financial year. Group them according to whether the debts are in relation to:
(a) units
undertaken with a higher education provider that formed part of one particular *course of study
with that provider; or
(b) units
undertaken with a higher education provider that formed part of one particular
course of study with another higher education provider; or
(c) units that
formed part of one particular *bridging course for overseas‑trained professionals;
or
(d) units access
to which was provided by *Open Universities Australia; or
(e) *OS‑HELP
assistance, the entitlement to which relates to the person’s enrolment in an *undergraduate
course of study with one particular higher education provider (see paragraph
118‑1(1)(c)); or
(f) units undertaken
with a *VET
provider that formed part of one particular *VET course of study with that provider;
or
(g) units
undertaken with a VET provider that formed part of one particular VET course of
study with another VET provider.
Note: There
will be more than one group of debts under paragraph (a) if the person
incurred debts in relation to more than one course of study with a provider.
Similarly, there could be more than one group of debts under
paragraph (b), (c), (e), (f) or (g).
Step 2. Work out the total
for each group of debts. If the total for a particular group is an amount
consisting of a number of whole dollars and a number of cents, the total for
that group is taken to be the number of whole dollars. If the total for a group
is an amount of less than one dollar, the total for the group is taken to be
zero.
Step 3. If there is more
than one group of debts for the person, add together the totals for all of the
groups.
(2) The person incurs the *accumulated HELP
debt on 1 June in the financial year.
(3) The first financial year for which a
person can have an *accumulated
HELP debt is the financial year starting on 1 July 2005.
140‑30
Rounding of amounts
(1) If, apart from this section, a person’s *accumulated HELP
debt would be an amount consisting of a number of whole dollars and a number of
cents, disregard the number of cents.
(2) If, apart from this section, a person’s *accumulated HELP
debt would be an amount of less than one dollar, the person’s accumulated HELP
debt is taken to be zero.
140‑35
Accumulated HELP debt discharges earlier debts
(1) The *accumulated HELP debt that a person
incurs on 1 June in a financial year discharges, or discharges the unpaid
part of:
(a) any *HELP debt that the person incurred during
the calendar year immediately preceding that day; and
(b) any accumulated HELP debt that the
person incurred on the immediately preceding 1 June.
(2) Nothing in subsection (1) affects
the application of Division 137, Subdivision 140‑B or section 140‑25.
140‑40
Accumulated HELP debt discharged by death
(1) Upon the death of a person who has an *accumulated HELP
debt, the accumulated HELP debt is taken to be discharged.
(2) To avoid doubt, this section does not
affect any *compulsory
repayment amounts required to be paid in respect of the *accumulated HELP debt, whether or
not those amounts were assessed before the person’s death.
Note: Accumulated HELP debts are not provable in
bankruptcy: see subsection 82(3AB) of the Bankruptcy Act 1966.
Part 4‑2—Discharge of indebtedness
Division 148—Introduction
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 or 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?
151‑1
Voluntary repayments in respect of debts
(1) A person may at any time make a payment
in respect of a debt that the person owes to the Commonwealth under this
Chapter.
(2) The payment must be made to the *Commissioner.
151‑5
Voluntary repayment bonus relating to HELP debts
(1) The effect that a payment under section 151‑1
has on a *HELP
debt or an *accumulated
HELP debt that a person (the debtor) owes to the Commonwealth
under this Chapter is the effect specified in subsection (2) or (3) of
this section if the amount of the payment is:
(a) $500 or more; or
(b) sufficient to be taken under subsection (2)
to pay off the total debt.
Total debt paid off
(2) 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:
Example: The total of Andrew’s HELP debts and accumulated
HELP debt is $2,500. To pay off his debt to the Commonwealth he only needs to
repay $2,272 ($2,500 divided by 1.1 is $2,272, rounding down to the nearest
dollar).
Part of debt paid off
(3) 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:
Example: The total of Helen’s HELP debts and accumulated
HELP debt is $4,500. She makes a voluntary repayment of $1,500. With a 10%
bonus, the value of her repayment is $1,650. The total amount that she owes to
the Commonwealth is reduced to $2,850.
(4) If an amount worked out using the formula
in subsection (2) or (3) is an amount made up of dollars and cents, round
the amount down to the nearest dollar.
151‑10
Application of voluntary repayments
(1) Any money a person pays under this
Division to meet the person’s debts to the Commonwealth under this Chapter is
to be applied in payment of those debts as the person directs at the time of
the payment.
(2) 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:
(a) first, in discharge or reduction
of any *accumulated
HELP debt of the person;
(b) secondly, in discharge or
reduction of:
(i) any *HELP debt of the
person; or
(ii) if there is more than
one such debt, those debts in the order in which they were incurred.
151‑15
Refunding of payments
If:
(a) a person pays an amount to the
Commonwealth under this Division; and
(b) the amount exceeds the sum of:
(i) the amount required to
discharge the total debt that the person owed to the Commonwealth under this
Chapter; and
(ii) the total amount of
the person’s primary tax debts (within the meaning of Part IIB of the Taxation
Administration Act 1953);
the Commonwealth must refund to the person an amount equal
to that excess.
Note: Interest is payable if the Commonwealth is
late in paying refunds: see Part IIIA of the Taxation (Interest on
Overpayments and Early Payments) Act 1983.
Division 154—How is indebtedness compulsorily discharged?
Subdivision 154‑A—Liability to repay amounts
154‑1
Liability to repay amounts
(1) If:
(a) a person’s *repayment income for an *income year
exceeds the *minimum
repayment income for the income year; and
(b) 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 HELP debt;
the person is liable to pay to the Commonwealth, in
accordance with this Division, the amount worked out under section 154‑20
in reduction of the person’s *repayable debt.
(2) A person is not liable under this section
to pay an amount for an *income year if, under section 8 of the Medicare
Levy Act 1986:
(a) no *Medicare levy is payable by the person on
the person’s *taxable
income for the income year; or
(b) the amount of the Medicare levy
payable by the person on the person’s taxable income for the income year is
reduced.
154‑5
Repayment income
(1) A person’s repayment income
for an *income
year is an amount equal to the sum of:
(a) the person’s *taxable income for
the income year; and
(b) if a person has a *rental property
loss for the income year—the amount of that rental property loss; and
(c) if the person:
(i) is an employee (within
the meaning of the Fringe Benefits Tax Assessment Act 1986); and
(ii) 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
(d) if the person has *exempt foreign
income for the income year—the amount of that exempt foreign income.
(2) 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.
(3) For the purposes of subsection (2),
disregard any rental property income that the person derives as a member of a
partnership.
(4) 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.
(5) For the purposes of subsection (4),
disregard any capital losses and outgoings.
154‑10
Minimum repayment income
The minimum repayment income
for an *income
year is:
(a) for the 2005‑06 income
year—$36,184; or
(b) for a later income year—that
amount as indexed under section 154‑25.
154‑15
Repayable debt for an income year
(1) A person’s repayable debt
for an *income
year is:
(a) the person’s *accumulated HELP
debt referred to in paragraph 154‑1(1)(b) in relation to that income
year; or
(b) if one or more amounts:
(i) have been paid in
reduction of that debt; or
(ii) have
been assessed under section 154‑35 to be payable in respect of that
debt;
the amount (if any) remaining
after deducting from that debt the amount, or sum of the amounts, so paid or
assessed to be payable.
(2) A reference in paragraph (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
154‑20
Amounts payable to the Commonwealth
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 following
table:
|
Applicable percentages
|
|
Item
|
If the person’s repayment income is:
|
The percentage
applicable is:
|
|
1
|
More than the *minimum repayment income, but less than:
(a) for the 2005‑06 *income year—$40,307; or
(b) for a later income year—that amount indexed under section 154‑25.
|
4%
|
|
2
|
More than the amount under item 1, but less than:
(a) for the 2005‑06 *income year—$44,428; or
(b) for a later income year—that amount indexed under section 154‑25.
|
4.5%
|
|
3
|
More than the amount under item 2, but less than:
(a) for the 2005‑06 *income year—$46,763; or
(b) for a later income year—that amount indexed under section 154‑25.
|
5%
|
|
4
|
More than the amount under item 3, but less than:
(a) for the 2005‑06 *income year—$50,267; or
(b) for a later income year—that amount indexed under section 154‑25.
|
5.5%
|
|
5
|
More than the amount under item 4, but less than:
(a) for the 2005‑06 *income year—$54,440; or
(b) for a later income year—that amount indexed under section 154‑25.
|
6%
|
|
6
|
More than the amount under item 5, but less than:
(a) for the 2005‑06 *income year—$57,305; or
(b) for a later income year—that amount indexed under section 154‑25.
|
6.5%
|
|
7
|
More than the amount under item 6, but less than:
(a) for the 2005‑06 *income year—$63,063; or
(b) for a later income year—that amount indexed under section 154‑25.
|
7%
|
|
8
|
More than the amount under item 7, but less than:
(a) for the 2005‑06 *income year—$67,200; or
(b) for a later income year—that amount indexed under section 154‑25.
|
7.5%
|
|
9
|
More than the amount
under item 8.
|
8%
|
154‑25
Indexation
(1) The following amounts for the 2006‑07
*income year,
or a later income year:
(a) the *minimum repayment income;
(b) 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:
(2) AWE,
for an *income
year, is the number of dollars in the sum of:
(a) 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
(b) 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.
(3) 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.
(4) If an amount worked out under this
section is an amount made up of dollars and cents, round the amount down to the
nearest dollar.
154‑30
Publishing indexed amounts
The Minister must cause to be published
in the Gazette, before the start of the 2006‑07 *income year or a
later income year:
(a) the *minimum repayment income; and
(b) the amounts referred to in paragraph (b)
of the second column of items 1 to 8 of the table in section 154‑20;
for that income year.
Subdivision 154‑C—Assessments
154‑35
Commissioner may make assessments
The *Commissioner may, from any information in
the Commissioner’s possession, whether from a *return or otherwise, make an assessment
of:
(a) the person’s *accumulated HELP
debt on 1 June immediately before the making of the assessment; and
(b) the amount required to be paid in
respect of that debt under section 154‑1.
154‑40
Notification of notices of assessment of tax
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;
notice of the assessment under that section may be served
by specifying the amounts concerned in the notice referred to in paragraph (a).
154‑45
Commissioner may defer making assessments
(1) 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.
(2) The application must specify:
(a) the *income year for which the deferral is
being sought; and
(b) the reasons for seeking the
deferral.
(3) The *income year specified in the application
must be:
(a) the income year in which the
person makes the application; or
(b) the immediately preceding income
year; or
(c) the immediately succeeding income
year.
(4) The *Commissioner may, on application by a
person under this section, defer making an assessment in respect of the person
under section 154‑35 if the Commissioner is of the opinion that:
(a) if the assessment were made,
payment of the assessed amount would cause serious hardship to the person; or
(b) there are other special reasons
that make it fair and reasonable to defer making the assessment.
(5) The *Commissioner may defer making the
assessment for any period that he or she thinks appropriate.
(6) The *Commissioner must, as soon as practicable
after an application is made under this section:
(a) consider the matter to which the
application relates; and
(b) notify the applicant of the
Commissioner’s decision on the application.
Note: Deferrals of making assessments, or refusals
of applications, are reviewable under Part 5‑7.
154‑50
Commissioner may amend assessments
(1) 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:
(a) the amount payable under the
assessment is reduced; or
(b) no amount is payable under the
assessment.
(2) The application:
(a) must be made no later than 2 years
after the end of the *income
year to which the assessment relates; or
(b) must specify the reasons
justifying a later application.
(3) The *Commissioner may, on application by a
person under this section, amend an assessment made in respect of the person
under section 154‑35 so that:
(a) the amount payable under the
assessment is reduced; or
(b) no amount is payable under the
assessment;
if the Commissioner is of the opinion that:
(c) payment of the assessed amount has
caused or would cause serious hardship to the person; or
(d) there are other special reasons
that make it fair and reasonable to make the amendment.
(4) The *Commissioner must, as soon as practicable
after an application is made under this section:
(a) consider the matter to which the
application relates; and
(b) notify the applicant of the
Commissioner’s decision on the application.
Note: Amendments of assessments, or refusals of
applications, are reviewable under Part 5‑7.
154‑55
Higher education providers etc. to provide information to Commissioner
(1) A higher education provider must give to
the *Commissioner,
if asked by the Commissioner to do so, any information:
(a) that is in its possession relating
to students who have applied for:
(i) *HECS‑HELP
assistance or *FEE‑HELP
assistance for a unit of study; or
(ii) *OS‑HELP
assistance in relation to a period of 6 months; and
(b) that the Commissioner reasonably
requires for the purposes of this Chapter.
(2) *Open Universities Australia must give to the *Commissioner, if
asked by the Commissioner to do so, any information:
(a) that is in its possession relating
to students who have applied for *FEE‑HELP assistance for a unit of study; and
(b) that the Commissioner reasonably
requires for the purposes of this Chapter.
Subdivision 154‑D—Application of tax legislation
154‑60
Returns, assessments, collection and recovery
Subject to this Part:
(a) Part IV, and Division 1
of Part VI, of the Income Tax Assessment Act 1936; and
(b) 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.
Note: Part 4‑15 in Schedule 1 to the
Taxation Administration Act 1953 deals with collection and recovery of
amounts on and after 1 July 2000, replacing some provisions in Division 1
of Part VI of the Income Tax Assessment Act 1936.
154‑65
Charges and civil penalties for failing to meet obligations
(1) Part 4‑25 in Schedule 1
to the Taxation Administration Act 1953 has effect as if:
(a) 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
(b) this Chapter, and Part 5‑5,
were *income
tax laws.
(2) Subsection (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 this subsection.
154‑70
Pay as you go (PAYG) withholding
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 *compulsory
repayment amount of a person as if the compulsory repayment amount were *income tax.
154‑80
Pay as you go (PAYG) instalments
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 *compulsory repayment amount of a person
as if the compulsory repayment amount were *income tax.
Chapter 5—Administration
Division 159—Introduction
159‑1
What this Chapter is about
This Chapter deals with the following
administrative matters:
• payments made by the
Commonwealth under this Act (see Part 5‑1);
• administrative requirements
that are imposed on higher education providers (see Part 5‑2);
• electronic communication
between higher education providers and students (see Part 5‑3);
• protection of personal
information gained in the administration of Chapters 3 and 4 (see Part 5‑4);
• tax file numbers of
students (see Part 5‑5);
• indexation of certain
amounts (see Part 5‑6);
• reconsideration and
administrative review of certain decisions (see Part 5‑7).
159‑5
The Administration Guidelines
Administrative matters are also dealt
with in the Administration Guidelines. The provisions of this Chapter may
indicate when a particular matter is or may be dealt with in these Guidelines.
Note: The Administration Guidelines are made by the
Minister under section 238‑10.
Part 5‑1—Payments by the Commonwealth
Division 164—Payments by the Commonwealth
164‑1
What this Part is about
This Part contains general provisions
relating to how the Commonwealth makes payments under this Act.
164‑5
Time and manner of payments
(1) 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.
(2) Payments of amounts payable by the
Commonwealth to a higher education provider or other body under this Act are to
be made at such times as the *Secretary determines.
164‑10
Advances
(1) The *Secretary may determine that an advance
is to be made to a higher education provider or other body on account of an
amount that is expected to become payable under a provision of this Act to the
provider or other body.
(1A) If the advance exceeds the amount that
becomes payable, an amount equal to the excess may be:
(a) deducted from any amount that is
payable, or to be paid, to the provider or body under this Act; or
(b) recovered by the Commonwealth from
the provider or body as a debt due to the Commonwealth.
(1B) If the provider or other body uses the
advance for a purpose other than that for which it was given, an amount equal
to the advance may be:
(a) deducted from any amount that is
payable, or to be paid, to the provider or body under this Act; or
(b) recovered by the Commonwealth from
the provider or body as a debt due to the Commonwealth.
(2) The conditions that would be applicable
to a payment of the amount on account of which the advance is made are applicable
to the advance.
(3) This section does not affect the
Minister’s power to determine under section 33‑40 that an advance is
payable to a higher education provider.
164‑15
Overpayments of Commonwealth grants
An overpayment of an amount made to a
higher education provider or other body under Part 2‑2, 2‑3 or
2‑4 may, in whole or part, be:
(a) deducted from any amount that is
payable, or to be paid, to that provider or body under Part 2‑2, 2‑3
or 2‑4; or
(b) recovered by the Commonwealth from
that provider or body as a debt due to the Commonwealth.
164‑17
Overpayments of Commonwealth scholarships to students
An overpayment of an amount paid, or
purportedly paid, to a person by way of a *Commonwealth scholarship under
section 46‑13 may, in whole or part, be:
(a) deducted from any amount that is
payable, or to be paid, to that person under that section; or
(b) recovered by the Commonwealth from
that person as a debt due to the Commonwealth.
164‑18
Repayment of Commonwealth scholarships paid to students—breach of condition
(1) This section applies if:
(a) an amount is paid to a person by
way of a *Commonwealth
scholarship under section 46‑13; and
(b) the person breaches a condition of
the Commonwealth scholarship.
(2) The amount may, in whole or part, be:
(a) deducted from any amount that is
payable, or to be paid, to that person under that section; or
(b) recovered by the Commonwealth from
that person as a debt due to the Commonwealth.
164‑20
Rounding of amounts
If an amount payable by the Commonwealth
under this Act is an amount made up of dollars and cents, round the amount down
to the nearest dollar.
Part 5‑2—Administrative requirements on higher education providers
Division 169—Administrative requirements on higher education providers
169‑1
What this Part is about
This Part imposes a number of
administrative requirements on higher education providers.
Note: It is a quality and accountability requirement
that a higher education provider comply with this Act: see section 19‑65.
169‑5
Notices
Who gets a notice?
(1) A higher education provider must give
such notices as are required by the Administration Guidelines to a person:
(a) who is enrolled with the provider
for a unit of study; and
(b) who:
(i) is seeking
Commonwealth assistance under this Act for the unit; or
(ii) is a *Commonwealth
supported student for the unit.
Contents of notice
(2) A notice must contain the information set
out in the Administration Guidelines as information that must be provided in
such a notice.
Date by which notice to be given
(3) A notice must be given within the period
set out in the Administration Guidelines.
Purpose and effect of notice
(4) A notice under this section is given for
the purpose only of providing information to a person. Any liability or
entitlement of a person under this Act (including the person’s *Student Learning
Entitlement) is not affected by:
(a) the failure of a higher education
provider to give a notice under this section; or
(b) the failure of a higher education
provider to give such a notice by the date required under the Administration
Guidelines; or
(c) the notice containing an incorrect
statement.
169‑10
Correction of notices
Higher education provider to correct notice
(1) 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.
Person may request correction of notice
(2) A person who receives a notice from a
higher education provider under section 169‑5 may give to the
provider a written request for the notice to be corrected in respect of a
material particular if the person considers that the notice was not, or has
ceased to be, correct in that particular.
(3) 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.
(4) The request must:
(a) specify the particular in the
notice that the person considers is incorrect; and
(b) specify the reasons the person has
for considering that the particular is incorrect.
(5) The making of the request does not affect
any liability or entitlement of the person under this Act (including the
person’s *Student
Learning Entitlement).
Higher education provider to process request
(6) If a higher education provider receives a
request under this section the provider must, as soon as practicable:
(a) determine the matter to which the
request relates; and
(b) notify the person in writing of
the provider’s determination; and
(c) if the provider determines that a
material particular in the notice was not, or has ceased to be, correct—give a
further notice under subsection (1).
169‑15
Charging student contribution amounts and tuition fees
(1) A higher education provider:
(a) must require any student who:
(i) is a *Commonwealth
supported student in relation to a unit of study; and
(ii) is enrolling in the
unit with the provider; and
(iii) is not an *exempt student for
the unit;
to pay to the provider the
student’s *student
contribution amount for the unit; and
(b) must not require the student to
pay any of his or her *tuition fee or any other *fee for the unit.
(1A) Despite subsection (1), a higher
education provider must not require a student who is enrolling in a unit in
circumstances that make it a replacement unit within the meaning of the *tuition assurance
requirements to pay to the provider the student’s *student contribution amount for the unit.
(2) A higher education provider:
(a) must require any *domestic student
who:
(i) is not a *Commonwealth
supported student in relation to a unit of study; and
(ii) is enrolling in the
unit with the provider; and
(iii) is not an *exempt student for
the unit;
to pay to the provider the
student’s *tuition
fee for the unit; and
(b) must not require any domestic
student to pay any other *fee, or any of his or her *student contribution amount, for the
unit.
(2A) Despite subsection (2), a higher
education provider must not require a domestic student who is enrolling in a
unit in circumstances that make it a replacement unit within the meaning of the
*tuition
assurance requirements to pay to the provider the student’s *tuition fee for
the unit.
(3) However (unless subsection (4)
applies), a higher education provider must repay to a person any payment of his
or her *student
contribution amount or *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.
Note: Other provisions about student contribution
amounts and tuition fees are set out in Subdivision 19‑F and Parts 2‑2
and 3‑2.
(4) Subsection (3) does not apply if:
(a) the student is no longer enrolled
in the unit at the end of the census date because the provider has ceased to
provide the unit as a result of ceasing to provide the course of which the unit
formed part; and
(b) the *tuition assurance requirements applied to
the provider at the time the provider ceased to provide the unit; and
(c) the student chose the option
designated under those requirements as course assurance in relation to the
unit.
169‑20
Exempt students
(1) The Minister may determine in writing
that all students, or students of a specified kind, are exempt from payment of
their *student
contribution amounts and *tuition fees for:
(a) any units of study undertaken as
part of a specified *course
of study; or
(b) any units of study undertaken as
part of a course of study of a specified kind.
A student, or a student of such a kind, (as the case
requires) is an exempt student for those units.
(2) The Administration Guidelines may provide
that:
(a) in all circumstances; or
(b) in the circumstances specified in
those guidelines;
all students are exempt from payment of their *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, (as the case
requires) an exempt student for such units.
(3) A student is an exempt student for
a unit of study undertaken with a higher education provider as part of a *course of study
with that provider if:
(a) the provider has awarded the
student an exemption scholarship for the course; and
(b) the provider awarded the
scholarship in accordance with any requirements specified in the Administration
Guidelines.
(3A) A student is an exempt student for
a unit of study undertaken with one higher education provider as part of a *course of study
with another (the home provider) if:
(a) the home provider has awarded the
student an exemption scholarship for the course; and
(b) the home provider awarded the
scholarship in accordance with any requirements specified in the Administration
Guidelines; and
(c) the student must undertake the
unit, because it is required to complete the course.
(3B) A student is
an exempt student for a unit of study undertaken with one higher
education provider (the host provider) as part of a *course of study
undertaken with another if:
(a) the host provider has awarded the
student an exemption for the unit; and
(b) the host provider awarded the
scholarship in accordance with any requirements specified in the Administration
Guidelines.
(4) Without limiting the matters that may be
specified in the Administration Guidelines for the purposes of paragraph (3)(b),
those matters may include one or both of the following:
(a) the maximum number of exemption
scholarships that a particular higher education provider may award in respect
of a year;
(b) which students are eligible to
receive exemption scholarships.
169‑25
Determining census dates and EFTSL values
(1) A higher education provider must, for
each unit of study it provides or proposes to provide during a period
ascertained in accordance with the Administration Guidelines, determine, for that
period:
(a) a particular date to be the *census date for the
unit; and
(b) the *EFTSL value for the unit.
Note: 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.
(2) A date determined under paragraph (1)(a)
must not occur less than 20% of the way through the period during which the
unit is undertaken.
(3) The provider must publish:
(a) the *census date for the unit by the date
ascertained in accordance with, and in the manner specified in, the
Administration Guidelines; and
(b) the *EFTSL value for the unit by the date
ascertained in accordance with, and in the manner specified in, the
Administration Guidelines.
Variations
(4) The provider must not vary the *census date for
the unit, or the *EFTSL
value for the unit, after publication under subsection (3), unless the
provider:
(a) does so:
(i) before the date
ascertained in accordance with the Administration Guidelines; and
(ii) in circumstances
specified in the Administration Guidelines; or
(b) does so with the written approval
of the Minister.
(5) If paragraph (4)(a) applies, the
provider must publish the variation by the date ascertained in accordance with,
and in the manner specified in, the Administration Guidelines.
(6) If paragraph (4)(b) applies, the
provider must publish the variation by the date, and in the manner, specified
by the Minister in the approval.
169‑30
Communications with the Commonwealth concerning students etc.
In communications under, or for the
purposes of, this Act between the Commonwealth and a higher education provider
concerning a person who:
(a) is enrolled, or seeking to enrol,
in a unit of study with the provider; and
(b) has indicated that the person is
seeking Commonwealth assistance under this Act for the unit, or is a *Commonwealth
supported student for the unit;
the provider must use any identifier for that person that
the *Secretary
has indicated must be used in such communications.
169‑35
6 week cut off for corrections affecting entitlement to Commonwealth assistance
If:
(a) more than 6 weeks after the *census date for a
unit of study undertaken with a higher education provider, a person gives the
provider information in writing (the correct information)
that establishes that information contained in or accompanying the person’s
*request for
Commonwealth assistance was incorrect; and
(b) the correct information
establishes that the person was entitled to a particular kind of Commonwealth
assistance;
this Act applies as if the person had never been entitled
to that particular Commonwealth assistance.
Part 5‑3—Electronic communications
Division 174—Electronic communications
174‑1
What this Part is about
Certain documents that this Act
requires or permits to be given between students and higher education providers
may be transmitted electronically.
174‑5
Guidelines may deal with electronic communications
(1) The Administration Guidelines may make
provision for or in relation to requiring or permitting information or
documents to be given by students to higher education providers, or by higher
education providers to students, in accordance with particular information
technology requirements:
(a) on a particular kind of data
storage device; or
(b) by means of a particular kind of
electronic communication.
(2) The Administration Guidelines may make
provision for or in relation to requiring, in relation to an electronic
communication from a student to a higher education provider:
(a) that the communication contain an
electronic signature (however described); or
(b) that the communication contain a
unique identification in an electronic form; or
(c) that a particular method be used
to identify the originator of the communication and to indicate the
originator’s approval of the information communicated.
(3) The reference in subsection (1) to
giving information includes a reference to anything that is giving
information for the purposes of section 9 of the Electronic
Transactions Act 1999.
(4) In this
section:
data storage device has the same meaning as
in the Electronic Transactions Act 1999.
electronic communication has the same meaning
as in the Electronic Transactions Act 1999.
information has the same meaning as in the Electronic
Transactions Act 1999.
information technology requirements has the
same meaning as in the Electronic Transactions Act 1999.
Part 5‑4—Protection of personal information
Division 179—Protection of personal information
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.
179‑5
Meaning of personal information
Personal information is:
(a) information or an opinion
(including information or an opinion forming part of a database), whether true
or not, and whether recorded in a material form or not, about an individual
whose identity is apparent, or can reasonably be ascertained, from the
information or opinion; and
(b) obtained or created by an *officer for the
purposes of Chapters 3 and 4.
179‑10
Use of personal information
An *officer commits an offence if the
officer:
(a) either:
(i) discloses information;
or
(ii) makes a copy or other
record of information; and
(b) the information is *personal
information; and
(c) the information was acquired by
the officer in the course of the officer’s *official employment; and
(d) the
disclosure did not occur, or the copy or record was not made, in the course of
that official employment.
Penalty: Imprisonment for 2 years.
179‑15
Meanings of officer etc. and official employment
Meaning of officer
(1) A person is an officer if:
(a) the person is or was a *Commonwealth
officer (see subsection (2)); or
(b) the person is or was an *officer of a
higher education provider (see subsection (3)); or
(c) the person is or was an *officer of Open
Universities Australia (see subsection (3A)).
(2) A Commonwealth officer is a
person who holds office under, or is employed by, the Commonwealth, and
includes the following:
(a) a person appointed or engaged
under the Public Service Act 1999;
(b) a person permanently or
temporarily employed:
(i) in the Public Service
of a Territory (other than the Northern Territory); or
(ii) in, or in connection
with, the Defence Force; or
(iii) in the Service of any
authority or body constituted by or under a law of the Commonwealth or of a
Territory (other than the Northern Territory);
(c) the Commissioner of the Australian
Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP
employee or a special member of the Australian Federal Police (all within the
meaning of the Australian Federal Police Act 1979);
(d) a person who, although not holding
office under, or employed by:
(i) the Commonwealth; or
(ii) a Territory (other
than the Northern Territory); or
(iii) any authority or body
constituted by or under a law of the Commonwealth or of a Territory (other than
the Northern Territory);
performs services for or on
behalf of the Commonwealth, a Territory (other than the Northern Territory), or
such an authority or body;
(e) a person who is an employee of the
Australian Postal Corporation;
(f) a person who performs services
for or on behalf of the Australian Postal Corporation;
(g) an employee of a person who
performs services for or on behalf of the Australian Postal Corporation.
(3) A person is an officer of a higher
education provider if the person is:
(a) an officer or employee of the
provider; or
(b) a person who, although not an
officer or employee of the provider, performs services for or on behalf of the
provider.
(3A) A person is an officer of Open
Universities Australia if the person is:
(a) an officer or employee of *Open Universities Australia;
or
(b) a person who, although not an
officer or employee of Open Universities Australia, performs services for or on
behalf of Open Universities Australia.
Meaning of official employment
(4) Official employment of an *officer is:
(a) for a *Commonwealth officer—the performance of
duties or functions, or the exercise of powers, under, or for the
purposes of, this Act; or
(b) for an *officer of a higher education
provider—service as such an officer; or
(c) for an *officer of Open Universities Australia—service
as such an officer.
179‑20
When information is disclosed in the course of official employment
Without limiting the matters that are
disclosures that occur in the course of an *officer’s *official employment for the purposes of
paragraph 179‑10(d), the following disclosures are taken to be
disclosures that occur in the course of an officer’s official employment:
(a) disclosure by a *Commonwealth
officer of *personal
information to another Commonwealth officer to assist that other officer in the
other officer’s official employment;
(b) disclosure by an officer of
personal information to the Administrative Appeals Tribunal in connection with
a *reviewable
decision;
(c) disclosure by a Commonwealth
officer of personal information to an *officer of a higher education provider to assist
the provider’s officer in performing duties or functions, or in exercising
powers, under, or for the purposes of, this Act;
(ca) disclosure by a Commonwealth
officer of personal information to an *officer of Open Universities Australia to assist *Open Universities Australia
in performing duties or functions, or in exercising powers, under, or for the
purposes of, this Act;
(d) disclosure by an officer of a
higher education provider of personal information to a Commonwealth officer to
assist the Commonwealth officer in the Commonwealth officer’s official
employment;
(e) disclosure by an officer of Open
Universities Australia of personal information to a Commonwealth officer to
assist the Commonwealth officer in the Commonwealth officer’s official
employment;
(f) disclosure by an officer of Open
Universities Australia of personal information to an officer of a higher
education provider to assist the provider’s officer in performing duties or
functions or in exercising powers, under, or for the purposes of, this Act;
(g) disclosure by an officer of a
higher education provider of personal information to an officer of Open
Universities Australia to assist the officer of Open Universities Australia in
performing duties or functions or in exercising powers, under, or for the
purposes of, this Act.
179‑25
Commissioner may disclose information
(1) Despite anything in an Act of which the *Commissioner has
the general administration, the Commissioner, or a person authorised by the
Commissioner, may communicate *personal information to an *officer for use by that officer:
(a) in the case of a *Commonwealth
officer—in the course of the officer’s *official employment; or
(b) in the case of an *officer of a
higher education provider—to assist the officer in performing duties or
functions, or in exercising powers, under, or for the purposes of, this Act; or
(c) in the case of an *officer of Open
Universities Australia—to assist the officer in performing duties or functions,
or in exercising powers, under, or for the purposes of, this Act.
(2) Despite subsection 13.3(3) of the Criminal
Code, in a prosecution for an offence against an Act of which the *Commissioner has
the general administration, the defendant does not bear an evidential burden in
relation to whether this section applies to a communication of *personal
information.
179‑30
Oath or affirmation to protect information
(1) An *officer must, if and when required by the
*Secretary or
the *Commissioner
to do so, make an oath or affirmation to protect information in accordance with
this Part.
(2) The *Secretary may determine, in writing:
(a) the form of the oath or
affirmation that the Secretary will require; and
(b) the manner in which the oath or
affirmation must be made.
(3) The *Commissioner may determine, in writing:
(a) the form of the oath or
affirmation that the Commissioner will require; and
(b) the manner in which the oath or
affirmation must be made.
179‑35
Unauthorised access to, or modification of, personal information
(1) A person commits an offence if:
(a) the person causes any unauthorised
access to, or modification of, *personal information that is:
(i) held in a computer;
and
(ii) to which access is
restricted by an access control system associated with a function of the
computer; and
(b) the person intends to cause the
access or modification; and
(c) the person knows that the access
or modification is unauthorised; and
(d) one or more of the following
apply:
(i) the personal
information is held in a computer of a higher education provider;
(ii) the personal
information is held on behalf of a provider;
(iii) the personal
information is held in a computer of *Open Universities Australia;
(iv) the personal
information is held on behalf of Open Universities Australia.
Penalty: 2 years imprisonment.
(2) Absolute liability applies to paragraph (1)(d).
Part 5‑5—Tax file numbers
Division 184—Introduction
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, or where appropriate Open Universities Australia, of
matters relating to tax file numbers.
Higher education providers, and where
appropriate Open Universities Australia, have obligations relating to notifying
students about tax file number requirements.
Higher education providers have
obligations relating to cancelling the enrolment of students who do not have
tax file numbers.
Note: Part VA of the Income Tax Assessment
Act 1936 provides for issuing, cancelling or altering tax file numbers.
Division 187—What are the tax file number requirements for assistance
under Chapter 3?
187‑1
Meeting the tax file number requirements
(1) A student who is enrolled, or proposes to
enrol, with a higher education provider in a unit of study access to which was
not provided by *Open
Universities Australia, meets the tax file number requirements
for assistance under Chapter 3 if:
(a) the student notifies his or her *tax file number to
an *appropriate
officer of the provider, and the provider is satisfied (in accordance with subsection (4))
that this number is a valid tax file number; or
(b) the student gives to the officer a
certificate from the *Commissioner
stating that the student has applied to the Commissioner asking the
Commissioner to issue a tax file number to the student.
(1AA) Compliance by a person with subsection (1)
in relation to a *course
of study is to be ignored in determining whether there has been compliance by
the person with subsection (1) in relation to any other course of study.
(1A) A student who accesses, or proposes to
access, a unit of study through *Open Universities Australia, meets the tax file
number requirements for assistance under Chapter 3 if:
(a) the student notifies his or her *tax file number to
an *appropriate
officer of Open Universities Australia, and Open Universities Australia is
satisfied (in accordance with subsection (4)) that this number is a valid
tax file number; or
(b) the student gives to the officer a
certificate from the *Commissioner
stating that the student has applied to the Commissioner asking the
Commissioner to issue a tax file number to the student.
(2) If the student is seeking *HECS‑HELP
assistance or *FEE‑HELP
assistance for a unit of study, he or she does not meet the tax file number
requirements for the assistance unless he or she complies with subsection (1)
or (1A) (as the case requires) on or before the *census date for the unit.
(3) A notification under paragraph (1)(a)
may be included in a *request
for Commonwealth assistance that the student has given to the provider in
relation to:
(a) the unit of study for which the
assistance is sought; or
(b) the *course of study of which the unit forms a
part; or
(c) any other unit of study forming
part of that course.
(3A) A notification under paragraph (1A)(a)
may be included in a *request
for Commonwealth assistance that the student has given to *Open Universities Australia
in relation to the unit of study for which the assistance is sought.
(4) The *Commissioner may issue guidelines about
the circumstances in which:
(a) a higher education provider is to
be, or is not to be, satisfied that a number is a valid *tax file number for the purposes of
paragraph (1)(a); and
(b) *Open Universities Australia is to be, or
is not to be, satisfied that a number is a valid tax file number for the
purposes of paragraph (1A)(a).
(5) A certificate under paragraph (1)(b)
must be in a form approved by the *Commissioner.
(6) A certificate under paragraph (1A)(b)
must be in a form approved by the *Commissioner.
(7) A guideline issued under subsection (4)
is a legislative instrument for the purposes of the Legislative Instruments
Act 2003.
187‑2
Who is an appropriate officer?
(1) An appropriate officer of a
higher education provider, means a person, or a person included in a class of
persons, whom:
(a) the chief executive officer of the
provider; or
(b) a delegate of the chief executive
officer of the provider;
has appointed to be an appropriate officer of the provider
for the purposes of this Act.
(2) An appropriate officer of *Open Universities Australia,
means a person, or a person included in a class of persons, whom:
(a) the chief executive officer of Open
Universities Australia; or
(b) a delegate of the chief executive
officer of Open Universities Australia;
has appointed to be an appropriate officer of Open
Universities Australia for the purposes of this Act.
187‑5
Student to notify tax file number when issued
(1) If a student *meets the tax file number requirements
for the assistance under paragraph 187‑1(1)(b):
(a) the student must notify his or her
*tax file
number to an *appropriate
officer of the higher education provider within 21 days from the day on which
the *Commissioner
issues the tax file number to the student; and
(b) the provider must be satisfied (in
accordance with subsection 187‑1(4)) that this number is a valid *tax file number.
(2) If a student *meets the tax file number requirements
for assistance under paragraph 187‑1(1A)(b):
(a) the student must notify his or her
*tax file
number to an *appropriate
officer of *Open
Universities Australia within 21 days from the day on which the *Commissioner
issues the tax file number to the student; and
(b) Open Universities Australia must
be satisfied (in accordance with subsection 187‑1(4)) that this number is
a valid *tax
file number.
Division 190—In what circumstances can higher education providers and Open Universities Australia be notified of tax
file number matters?
190‑1
When tax file numbers are issued etc.
(1) The *Commissioner may give to 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:
(a) issues the tax file number to the
student; or
(b) refuses to issue a tax file number
to the student on the ground that the student already has a tax file number.
(2) The *Commissioner may give to *Open Universities Australia
written notice of the *tax file number of a student to whom Open Universities Australia
provides access to a unit of study if the Commissioner:
(a) issues the tax file number to the
student; or
(b) refuses to issue a tax file number
to the student on the ground that the student already has a tax file number.
190‑5
When tax file numbers are altered
(1) The *Commissioner may give to 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.
(2) That new number is taken to be the number
that the student notified to the provider.
(3) The *Commissioner may give to *Open Universities
Australia written notice of the *tax file number of a student to whom Open Universities
Australia provides access to a unit of study if the Commissioner issues a new
tax file number to the student in place of a tax file number that has been
withdrawn.
(4) That new number is taken to be the number
that the student notified to *Open Universities Australia.
190‑10
When tax file numbers are incorrectly notified—students with tax file numbers
(1) If the *Commissioner is satisfied:
(a) that the *tax file number that a student has
notified to a higher education provider:
(i) has been cancelled or
withdrawn since the notification was given; or
(ii) is otherwise wrong;
and
(b) that the student has a tax file
number;
the Commissioner may give to the provider written notice
of the incorrect notification and of the student’s tax file number.
(2) That number is taken to be the number
that the student notified to the provider.
(3) If the *Commissioner is satisfied:
(a) that the *tax file number that a student has
notified to *Open
Universities Australia:
(i) has been cancelled or
withdrawn since the notification was given; or
(ii) is otherwise wrong;
and
(b) that the student has a tax file
number;
the Commissioner may give to Open Universities Australia
written notice of the incorrect notification and of the student’s tax file
number.
(4) That number is taken to be the number
that the student notified to *Open Universities Australia.
190‑15
When tax file numbers are incorrectly notified—students without tax file
numbers
(1) If:
(a) the *Commissioner is satisfied that the *tax file number
that a student notified to a higher education provider:
(i) has been cancelled
since the notification was given; or
(ii) is for any other
reason not the student’s tax file number; and
(b) the Commissioner is not satisfied
that the student has a tax file number;
the Commissioner may give to the provider a written notice
informing the provider accordingly.
(1A) If:
(a) the *Commissioner is satisfied that the *tax file number
that a student notified to *Open Universities Australia:
(i) has been cancelled
since the notification was given; or
(ii) is for any other
reason not the student’s tax file number; and
(b) the Commissioner is not satisfied
that the student has a tax file number;
the Commissioner may give Open Universities Australia a
written notice informing Open Universities Australia accordingly.
(2) The *Commissioner must give a copy of any
notice under subsection (1) or (1A) to the student concerned, together
with a written statement of the reasons for the decision to give the notice.
Note: Decisions to give notice under subsection (1)
or (1A) are reviewable under section 202F of the Income Tax Assessment
Act 1936.
190‑20
When applications are refused or tax file numbers are cancelled
(1) If the *Commissioner:
(a) refuses a student’s application
for the issue of a *tax
file number; or
(b) cancels a tax file number issued
to a student;
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.
(1A) If the *Commissioner:
(a) refuses a student’s application
for the issue of a *tax
file number; or
(b) cancels a tax file number issued
to a student;
the Commissioner may, if access to a unit of study is
provided to the student by *Open Universities Australia, give to Open Universities
Australia written notice informing Open Universities Australia accordingly.
(2) The *Commissioner must give a copy of any
notice under subsection (1) or (1A) to the student concerned, together
with a written statement of the reasons for the decision to give the notice.
Note: Decisions to give notice under subsection (1)
or (1A) are reviewable under section 202F of the Income Tax Assessment
Act 1936.
Division 193—Other provisions relating to tax file numbers
193‑1
Giving information about tax file number requirements
Requests for HECS‑HELP assistance or FEE‑HELP
assistance—requirements on higher education providers
(1) A higher education provider must notify a
person in writing how to *meet the tax file number requirements if:
(a) the person is enrolled in a unit
of study with the provider; and
(b) the person has, on or before the *census date for
the unit, completed, signed and given to the *appropriate officer of the provider a *request for
Commonwealth assistance in relation to the unit or, where the *course of study of
which the unit forms a part is undertaken with the provider, in relation to the
course of study;
(c) in that request, the person
requests *HECS‑HELP
assistance or *FEE‑HELP
assistance for the unit or the course; and
(d) the request does not include a
number that purports to be the person’s *tax file number.
(2) The provider must notify the person under
subsection (1):
(a) on or before the *census date for
the unit; or
(b) within 7 days after the person
gives the provider the *request for Commonwealth assistance;
whichever is earlier.
Requests for FEE‑HELP assistance—requirements on Open
Universities Australia
(2A) *Open Universities Australia must notify a person in writing
how to *meet
the tax file number requirements if:
(a) Open Universities Australia
provides access to a unit of study to the person; and
(b) the person has, on or before the *census date for
the unit, completed, signed and given to an *appropriate officer of Open Universities Australia
a *request
for Commonwealth assistance in relation to the unit; and
(c) in that request, the person
requests *FEE‑HELP
assistance for the unit; and
(d) the request does not include a
number that purports to be the person’s *tax file number.
(2B) *Open Universities Australia must notify the person under subsection (2A):
(a) on or before the *census date for
the unit; or
(b) within 7 days after the person
gives Open Universities Australia the *request for Commonwealth assistance;
whichever is earlier.
(2C) A request for Commonwealth assistance,
in relation to a person to whom *Open Universities Australia provides access to a unit of
study, means a document:
(a) in which the person requests the
Commonwealth to provide assistance under this Act in relation to the unit; and
(b) that is in the form approved by
the Minister.
Requests for OS‑HELP assistance
(3) A higher education provider must notify a
person in writing how to *meet the tax file number requirements if:
(a) the person is enrolled in a *course of study
with the provider; and
(b) the person has, before receiving *OS‑HELP
assistance, completed, signed and given to an *appropriate officer of the provider a *request for
Commonwealth assistance; and
(c) in that request, the person
requests OS‑HELP assistance in relation to a period of 6 months; and
(d) the request does not include a
number that purports to be the person’s *tax file number.
(4) The provider must notify the person under
subsection (3) within 7 days after the person gives the provider the *request for
Commonwealth assistance.
Cases where there is no obligation to notify
(5) This section does not apply to the person
if:
(a) 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
(b) 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 person’s *student contribution amount for the unit.
Note: In the circumstances set out in paragraph (5)(b),
the HECS‑HELP assistance would not involve any loan by the Commonwealth
to the person.
193‑5
No entitlement to HECS‑HELP assistance for students without tax file
numbers
(1) A higher education provider must cancel a
person’s enrolment in a unit of study with the provider if:
(a) the provider receives notice under
section 190‑15 or 190‑20 to the effect that the person does
not have, or no longer has, a *tax file number; and
(b) 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 (3)) is a
valid tax file number; and
(c) the person is entitled to *HECS‑HELP
assistance for the unit (ignoring paragraph 90‑1(f)); and
(d) the person has not paid, as one or
more *up‑front
payments in relation to the unit, 80% of his or her *student contribution amount for the
unit.
Note 1: If the unit does not wholly consist of work
experience in industry, the person’s SLE in relation to the unit is re‑credited:
see section 79‑25.
Note 2: If the unit wholly consists of work experience
in industry, the provider has certain payment obligations: see section 36‑23.
(2) The provider must not accept a further
enrolment of the person in that unit as a *Commonwealth supported student.
(3) A higher education provider must, in
deciding whether it is satisfied that a number is a valid *tax file number
for the purposes of paragraph (1)(b), comply with the guidelines issued by
the *Commissioner
under subsection 187‑1(4).
(4) 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 (1)
or (3) of the need to obtain a valid *tax file number.
(5) A guideline issued under subsection (4)
is a legislative instrument for the purposes of the Legislative Instruments
Act 2003.
193‑10
No entitlement to FEE‑HELP assistance for students without tax file
numbers
(1) This subsection applies to a person in
relation to a unit of study if:
(a) the person is enrolled with a
higher education provider in the unit; and
(b) access to the unit was not
provided by *Open
Universities Australia; and
(c) the provider receives notice under
section 190‑15 or 190‑20 to the effect that the person does
not have, or no longer has, a *tax file number; and
(d) 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 (3)) is a
valid tax file number; and
(e) the person is entitled to *FEE‑HELP
assistance for the unit (ignoring paragraph 104‑1(1)(h)).
Note: The person’s FEE‑HELP balance in relation
to the unit is re‑credited: see subsection 104‑27(1).
(2) This subsection applies to a person in
relation to a unit of study if:
(a) the person is enrolled in the
unit; and
(b) access to the unit was provided by
*Open
Universities Australia; and
(c) Open Universities Australia
receives notice under section 190‑15 or 190‑20 to the effect
that the person does not have, or no longer has, a *tax file number; and
(d) at the end of 28 days after Open
Universities Australia receives that notice, Open Universities Australia has
not been notified of a number that it is satisfied (in accordance with subsection (3))
is a valid tax file number; and
(e) the person is entitled to *FEE‑HELP
assistance for the unit (ignoring paragraph 104‑1(1)(h)).
Note: The person’s FEE‑HELP balance in
relation to the unit is re‑credited: see subsection 104‑27(2).
(3) A higher education provider or *Open Universities
Australia must, in deciding whether it is satisfied that a number is a valid *tax file number
for the purposes of paragraph (1)(d) or (2)(d), as the case may be, comply
with the guidelines issued by the *Commissioner under subsection 187‑1(4).
(4) A higher education provider or *Open Universities
Australia must comply with any requirements, set out in guidelines issued by
the *Commissioner,
relating to procedures for informing persons of the need to obtain a valid *tax file number,
where the persons may be affected by subsection (1) or (2), as the case
may be, applying to them.
(5) A guideline issued under subsection (4)
is a legislative instrument for the purposes of the Legislative Instruments
Act 2003.
Part 5‑6—Indexation
Division 198—Indexation
198‑1
What this Part is about
Several amounts
referred to in provisions of this Act are indexed. This Part sets out how those
amounts are indexed.
Note 1: Different methods of indexation are used for
the indexing of accumulated HELP debts under sections 140‑10 and 140‑15,
and for the indexing of HELP repayment thresholds under section 154‑25.
Note 2: Guidelines may provide for amounts to be
indexed using the method of indexation set out in this Part.
198‑5
The amounts that are to be indexed
This table sets out the amounts that are
to be indexed.
|
Amounts that are to be indexed
|
|
Item
|
Amounts:
|
See:
|
First year of
indexation
|
|
1
|
*Commonwealth contribution amounts
|
Section
33‑10
|
2005
|
|
1A
|
Reduction amount
|
Section
33‑37
|
2007
|
|
2
|
*Maximum student contribution amounts for places
|
Section
93‑10
|
2005
|
|
3
|
The *FEE‑HELP limit
|
Section
104‑20
|
2006
|
|
4
|
The *maximum OS‑HELP amount
|
Section
121‑5
|
2006
|
198‑10
Indexing amounts
(1) 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 each subsequent 1 January,
by multiplying it by the *indexation factor for the relevant year.
(2) However an amount is not indexed if its *indexation factor
is 1 or less.
(3) If an amount worked out under subsection (1)
is an amount made up of dollars and cents, round the amount down to the nearest
dollar.
198‑15
Meaning of indexation factor
(1) The indexation factor for
the relevant year is:
(2) Work out the *indexation factor to 3 decimal places
(rounding up if the fourth decimal place is 5 or more).
Example: If the factor is 1.102795, it is rounded up to
1.103.
198‑20
Meaning of index number
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.
198‑25
Review of indexation
(1) The Minister will initiate and undertake
a review of the cost adjustment factor indexation mechanism for the
Commonwealth funding of universities from 2007/08.
(2) The review must be completed by February
2005 and the Government must respond to the review by April 2005 and give
effect to its response when introducing the annual Higher Education Support
Amendment Bill in the 2005 May sittings of the Parliament.
(3) Without limiting the scope of the review,
the reviewers must, among other things, consider the following:
(a) the alternative indices to use for
wage costs—for example, the relative merits of average weekly earnings, the
Commonwealth’s education wage cost index, baskets of domestic professional wage
rates and purchasing power parity adjusted indices for academic labour;
(b) the alternative indices for non‑wage
costs, noting the high reliance of universities on advanced equipment,
information technology, research infrastructure and international book and
periodical stocks;
(c) the application of any agreed
index or indices to the actual Commonwealth‑funded staffing and financial
profile of each university rather than the application of an assumed uniform
profile.
Part 5‑7—Review of decisions
Division 203—Introduction
203‑1
What this Part is about
Some decisions made under this Act are
subject to reconsideration and then review by the Administrative Appeals
Tribunal.
Division 206—Which decisions are subject to review?
206‑1
Reviewable decisions etc.
The table sets out:
(a) the reviewable decisions
under this Act; and
(b) the decision maker,
for the purposes of this Division, in respect of each of those decisions.
|
Reviewable decisions
|
|
Item
|
Decision
|
Provision under which
decision is made
|
Decision maker
|
|
1A
|
A decision that section 36‑22 does not apply to
a person
|
section 36‑22
|
(a) the higher education provider with whom the student is
enrolled in the unit; or
(b) if the *Secretary made the decision that the section does not
apply—the Secretary
|
|
1
|
Refusal to re‑credit some or all of a person’s *student learning
entitlement for a unit of study
|
section 79‑1
|
(a) the higher education provider with whom the student is
enrolled in the unit; or
(b) if the *Secretary made the decision to refuse the re‑crediting—the
Secretary
|
|
2
|
Refusal to re‑credit a person’s *FEE‑HELP
balance
|
subsection 104‑25(1)
|
(a) the higher education provider with whom the student is
enrolled in the unit; or
(b) if the *Secretary made the decision to refuse the re‑crediting—the
Secretary
|
|
2A
|
Refusal to re‑credit a person’s *FEE‑HELP
balance
|
subsection 104‑25(2)
|
(a) *Open Universities Australia; or
(b) if the *Secretary made the decision to refuse the re‑crediting—the
Secretary
|
|
3
|
Deferral of making an assessment or refusal to defer the
making of an assessment
|
section 154‑45
|
the *Commissioner
|
|
4
|
Amending the assessment or refusal to amend an assessment
|
section 154‑50
|
the *Commissioner
|
|
5
|
A decision under Division 225 (other than
section 225‑25), in relation to an external Territory
|
Division 225 (other than section 225‑25)
|
the Minister
|
|
|
|
|
|
Note 1: The decisions referred to in items 1A, 1
and 2 of the table are made by a higher education provider on the Secretary’s
behalf.
Note 2: The decisions referred to in item 2A of
the table are made by Open Universities Australia on the Secretary’s behalf.
206‑5
Deadlines for making reviewable decisions
If:
(a) this Act provides for a person to
apply to a *decision
maker to make a *reviewable
decision; and
(b) a period is specified under this
Act for giving notice of the decision to the applicant; and
(c) the decision maker has not
notified the applicant of the decision maker’s decision within that period;
the decision maker is taken, for the purposes of this Act,
to have made a decision to reject the application.
206‑10
Decision maker must give reasons for reviewable decisions
(1) If this Act requires the *decision maker to
notify a person of the making of a *reviewable decision, the notice must include reasons for
the decision.
(2) Subsection (1) does not affect an obligation,
imposed upon the *decision
maker by any other law, to give reasons for a decision.
Division 209—How are decisions reconsidered?
209‑1
Reviewer of decisions
(1) The reviewer of a *reviewable
decision is:
(a) if the *decision maker was a higher
education provider acting on behalf of the *Secretary—the Secretary; or
(b) if the *decision maker was *Open Universities Australia
acting on behalf of the *Secretary—the Secretary; or
(c) in any other case—the decision
maker, but see subsection (2).
(2) If:
(a) a *reviewable decision was made by a
delegate of a *decision
maker; and
(b) 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:
(c) was not involved in making the
decision; and
(d) occupies a position that is senior
to that occupied by any person involved in making the decision.
Note 1: The Secretary may delegate to a review officer
of a higher education provider the power to reconsider reviewable decisions
made under section 36‑22 or Chapter 3: see subsection 238‑1(2).
Note 2: The Secretary may also delegate to a review
officer of Open Universities Australia the power to reconsider reviewable
decisions made under Chapter 3: see subsection 238‑1(2A).
209‑5
Reviewer may reconsider reviewable decisions
(1) The *reviewer of a *reviewable decision may reconsider
the decision if the reviewer is satisfied that there is sufficient reason to do
so.
(2) The *reviewer may reconsider the decision even
if:
(a) an application for reconsideration
of the decision has been made under section 209‑10; or
(b) 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.
(3) After reconsidering the decision, the *decision maker
must:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and
substitute a new decision.
(4) The *reviewer’s decision (the decision
on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the
decision on review; or
(b) if a day is not specified—on the
day on which the decision on review was made.
(5) The *reviewer must give written notice of the
decision on review to the person to whom that decision relates.
(6) The notice:
(a) must be given within a reasonable
period after the decision is made; and
(b) must contain a statement of the
reasons for the *reviewer’s
decision on review.
Note: Section 27A of the Administrative
Appeals Tribunal Act 1975 requires the person to be notified of the
person’s review rights.
209‑10
Reconsideration of reviewable decisions on request
(1) A person whose interests are affected by
a *reviewable
decision may request the *reviewer to reconsider the decision.
(2) 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.
(3) The notice must set out the reasons for
making the request.
(4) After receiving the request, the *reviewer must
reconsider the decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and
substitute a new decision.
(5) The *reviewer’s decision (the decision
on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the
decision on review; or
(b) if a day is not specified—on the
day on which the decision on review was made.
(5A) The *reviewer must give the person written
notice of the decision on review.
(5B) The notice:
(a) must be given within a reasonable
period after the decision on review is made; and
(b) must contain a statement of the
reasons for the decision on review.
(6) The *reviewer is taken, for the purposes of
this Part, 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.
Note: Section 27A of the Administrative
Appeals Tribunal Act 1975 requires the person to be notified of the
person’s review rights.
Division 212—Which decisions are subject to AAT review?
212‑1
AAT review of reviewable decisions
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
217‑1
What this Chapter is about
This Chapter primarily provides for
approval of universities, self‑accrediting entities and non self‑accrediting
entities to operate in external Territories, and for accreditation of courses
of study in those Territories.
217‑5
The Higher Education in External Territories Guidelines
Matters relating to the provision of
higher education in the external Territories are also dealt with in the Higher
Education in External Territories Guidelines.
Note: The Higher Education in External Territories
Guidelines are made by the Minister under section 238‑10.
Part 6‑1—Approval and accreditation
Division 222—Introduction
222‑1
What this Part is about
Certain persons (other than natural
persons) may apply for approval to operate in an external Territory as a
university, as a self‑accrediting entity, or as a non self‑accrediting
entity.
All courses of study offered in an
external Territory that an approved person is not authorised to accredit must
be accredited by the Minister.
Persons (including natural persons)
who do not have approval or accreditation under this Part may commit an offence
if they operate as a university or other provider, offer higher education
awards or describe themselves as universities, in an external Territory.
Division 225—How does a person obtain approval and accreditation?
225‑1
Application for approval and accreditation
(1) A person (other than a natural person)
who wishes to *operate
in an external Territory as a university or other provider of *courses of study
leading to *higher
education awards, may apply in writing to the Minister:
(a) for any of the following:
(i) approval to operate as
a university in relation to that Territory;
(ii) approval to operate as
a self‑accrediting entity in relation to that Territory;
(iii) approval to operate as
a non self‑accrediting entity in relation to that Territory; and
(b) for accreditation, in relation to
that Territory, of courses of study leading to higher education awards that the
person proposes to offer in that Territory and is not authorised by a *government accreditation
authority to accredit.
Note: Division 228 contains offences for
persons who operate as a university or other provider, offer higher education
awards or describe themselves as universities, in an external Territory,
without approval or accreditation under this Part.
(2) An application under this section:
(a) must be in the form approved by
the Minister; and
(b) must be accompanied by the
information (if any) specified in the Higher Education in External Territories
Guidelines.
(2A) The Minister may request an applicant to
give the Minister specified additional information to enable the Minister to
decide the application.
(3) The Higher Education in External
Territories Guidelines may provide for matters relating to applications under
this section, including matters relating to either or both of the following:
(a) requests by the Minister for
further information;
(b) processes and deadlines that
applicants must comply with.
225‑3
Approving a person to operate as a university in relation to an external
Territory
(1) The Minister may approve a person to
operate as a university in relation to an external Territory if:
(a) the person applies for approval,
under section 225‑1, to operate as a university; and
(b) the Minister is satisfied, following
an assessment made having regard to the *National Protocols and any matters set
out in the Higher Education in External Territories Guidelines, that it is
appropriate to approve the person to operate as a university in relation to the
external Territory; and
(c) the person’s principal purpose is
either or both of the following:
(i) to provide education;
(ii) to conduct research.
Note: Refusal to approve a person to operate as a
university is reviewable under Part 5‑7.
(2) If the Minister approves a person to
operate as a university in relation to an external Territory under
subsection (1), he or she may, having regard to the *National Protocols
and any matters set out in the Higher Education in External Territories
Guidelines, approve the person’s use of:
(a) the word “university”; or
(b) the words “university college”; or
(c) any like word or words;
for the purpose of:
(d) identifying the person in the
person’s *operation
in the external Territory; or
(e) identifying the person’s operation
in the external Territory.
225‑5
Approving a person to operate as a self‑accrediting entity in relation to
an external Territory
(1) The Minister may approve a person to
operate as a self‑accrediting entity in relation to an external Territory
if:
(a) the person applies for approval,
under section 225‑1, to operate as a self‑accrediting entity
in relation to that Territory; and
(b) the Minister is satisfied,
following an assessment made having regard to the *National Protocols and any matters set
out in the Higher Education in External Territories Guidelines, that it is
appropriate that the person be authorised to accredit *courses of study leading to *higher education
awards in relation to that Territory; and
(c) the person’s principal purpose is
either or both of the following:
(i) to provide education;
(ii) to conduct research.
Note: Refusal to approve a person to operate as a
self‑accrediting entity is reviewable under Part 5‑7.
(2) The Minister must, having regard to the *National Protocols
and any matters set out in the Higher Education in External Territories
Guidelines, specify in the approval:
(a) whether the person’s authority to
accredit *courses
of study leading to *higher
education awards in relation to that Territory is limited in any way; and
(b) the nature of any such limitation.
Note 1: An authority may be limited, for example, by
reference to a field of study or level of qualification.
Note 2: A decision to limit an authority is reviewable
under Part 5‑7.
Minister may accredit courses that person is not
authorised to self‑accredit
(3) If the Minister proposes to:
(a) approve under subsection (1)
a person to operate as a self‑accrediting entity in relation to an
external Territory; and
(b) limit under subsection (2)
the person’s authority to accredit *courses of study leading to *higher education awards in relation to
that Territory;
the Minister may, when approving that person, accredit any
course of study, in relation to that Territory, that the person proposes to
offer in that Territory but would not be authorised to accredit because of that
limitation.
(4) The Minister may only accredit a *course of study
under subsection (3) in relation to an external Territory if the Minister
is satisfied, following an assessment made having regard to the *National Protocols
and any matters set out in the Higher Education in External Territories
Guidelines, that the course, and the way of delivering it, are appropriate to
the award.
Note: A decision not to accredit a course of study
under subsection (3) is reviewable under Part 5‑7.
225‑7
Approving a person to operate as a non self‑accrediting entity in
relation to an external Territory
The Minister may approve a person to
operate as a non self‑accrediting entity in relation to an external
Territory if:
(a) the person applies under
section 225‑1 for:
(i) approval to operate as
a non self‑accrediting entity in relation to that Territory; or
(ii) approval to operate as
a self‑accrediting entity in relation to that Territory; and
(b) the Minister is satisfied,
following an assessment made having regard to the *National Protocols and the Higher
Education in External Territories Guidelines, that:
(i) if
subparagraph (a)(ii) applies—it would not be appropriate to authorise the
person to accredit any *courses of study leading to *higher education awards in relation to
that Territory; and
(ii) in any case—it is
appropriate that the person be authorised to offer courses of study leading to
higher education awards in relation to that Territory; and
(c) the person’s principal purpose is
either or both of the following:
(i) to provide education;
(ii) to conduct research.
Note: Refusal to approve a person to operate as a
non self‑accrediting entity, or a decision to approve a person to operate
as a non self‑accrediting entity on application for approval to operate
as a self‑accrediting entity, is reviewable under Part 5‑7.
225‑10
Accrediting a course of study
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 and any matters set
out in the Higher Education in External Territories Guidelines, that the
course, and the way of delivering it, are appropriate to the award.
Note: Refusal to accredit a course of study is
reviewable under Part 5‑7.
225‑15
Duration of approval and accreditation
An approval or accreditation under this
Part:
(a) remains in force for the period
that the Minister determines; and
(b) is subject to any conditions that
the Minister imposes.
Note: A decision determining a period during which
an approval or accreditation remains in force, or imposing conditions on an
approval or accreditation, is reviewable under Part 5‑7.
225‑20
Amending or revoking an approval, authorisation or accreditation in relation to
an external Territory
Amending or revoking an approval to operate as a
university
(1) The Minister may amend or revoke an
approval of a person under section 225‑3 to operate as a university
in relation to an external Territory at any time if the Minister is satisfied
that:
(a) the person has breached a
condition to which the person’s approval is subject; or
(b) following a reassessment of the
person’s approval made having regard to the *National Protocols and any matters set
out in the Higher Education in External Territories Guidelines, the person’s
circumstances have so changed that it is no longer appropriate that the person
be approved to operate as a university in relation to that Territory; or
(c) the person’s circumstances have
changed so that it no longer satisfies paragraph 225‑3(1)(c).
Note: Amendment or revocation of an approval is
reviewable under Part 5‑7.
Amending or revoking an approval to use a word or words
(2) The Minister may amend or revoke an
approval for a person under section 225‑3 to use a word or words in
relation to an external Territory at any time if the Minister is satisfied
that:
(a) the person has breached a
condition to which the person’s approval was subject; or
(b) following a reassessment of the
person’s approval made having regard to the *National Protocols and any matters set
out in the Higher Education in External Territories Guidelines, it is not
appropriate for the person to use the word or words in relation to that
Territory; or
(c) the person’s approval under
section 225‑3 to operate as a university in relation to that
Territory has been amended or revoked.
Note: Amendment or revocation of an approval is
reviewable under Part 5‑7.
Amending or revoking an approval to operate as a self‑accrediting
entity
(3) The Minister may amend or revoke an
approval of a person under section 225‑5 to operate as a self‑accrediting
entity in relation to an external Territory at any time if the Minister is
satisfied that:
(a) the person has breached a
condition to which the person’s approval is subject; or
(b) following a reassessment of the
person’s approval made having regard to the *National Protocols and any matters set
out in the Higher Education in External Territories Guidelines, the person’s
circumstances have so changed that:
(i) it is no longer
appropriate that the person be authorised to accredit any courses of study in
relation to that Territory; or
(ii) it is no longer
appropriate that the person be authorised to accredit one or more of the
courses that it is currently authorised to accredit in relation to that
Territory; or
(c) the person’s circumstances have
changed so that it no longer satisfies paragraph 225‑5(1)(c).
Note: Amendment or revocation of an approval is
reviewable under Part 5‑7.
Amending or revoking an approval to operate as a non
self‑accrediting entity
(4) The Minister may amend or revoke an
approval of a person under section 225‑7 to operate as a non self‑accrediting
entity in relation to an external Territory at any time if the Minister is
satisfied that:
(a) the person has breached a
condition to which the person’s approval is subject; or
(b) following a reassessment of the
person’s approval made having regard to the *National Protocols and any matters set
out in the Higher Education in External Territories Guidelines, the person’s
circumstances have so changed that it is no longer appropriate that the person
be approved to operate as a non self‑accrediting entity in relation to
that Territory; or
(c) the person’s circumstances have
changed so that it no longer satisfies paragraph 225‑7(c).
Note: Amendment or revocation of an approval is
reviewable under Part 5‑7.
Amending or revoking an accreditation of a course of
study
(5) The Minister may amend or revoke an
accreditation of a *course
of study under section 225‑5 or 225‑10 in relation to an
external Territory at any time if the Minister is satisfied that:
(a) the person *offering the course has breached a
condition to which the accreditation is subject; or
(b) following a reassessment of the
accreditation made having regard to the *National Protocols and any matters set
out in the Higher Education in External Territories Guidelines, the content of,
or manner of providing, the course has so changed that it is no longer
appropriate to the award; or
(c) the person’s approval under
section 225‑5 or 225‑7 has been amended or revoked.
Note: Amendment or revocation of an accreditation is
reviewable under Part 5‑7.
Amending or revoking an approval or accreditation
because false or misleading information provided in application
(6) The Minister may amend or revoke an
approval or accreditation under this Part at any time if the Minister is
satisfied that information given by a person in relation to an application
under section 225‑1 for that approval or accreditation was false or
misleading.
Note: Amendment or revocation of an accreditation is
reviewable under Part 5‑7.
225‑25
Fees
(1) The Higher Education in External
Territories Guidelines may:
(a) set out fees to be paid in respect
of applications made under section 225‑1; and
(b) for that purpose, take into
account such costs as are directly or indirectly incurred by, or in assisting,
the Minister to make a decision on such an application; and
(c) set out the manner and times of
payment of such fees.
(2) A person making an application under
section 225‑1 must pay such fees as are provided for in the Higher
Education in External Territories Guidelines at such times as the Guidelines
provide.
Division 228—Limitations upon operations of certain persons in the
external Territories
228‑1
Persons without approval not to operate as universities or other provider in
external Territories
(1) A person commits an offence if:
(a) the person *operates, or purports to operate:
(i) as a university, or a
part of a university, providing *courses of study leading to *higher education awards; or
(ii) as another provider of
courses of study leading to higher education awards; and
(b) the operation or purported
operation is in an external Territory; and
(c) the person is not:
(i) an *Australian
university; or
(ii) a *self‑accrediting
entity; or
(iii) approved to operate in
that Territory by the Minister under section 225‑3 or 225‑7.
Penalty: 40 penalty units.
(2) A person who contravenes
subsection (1) commits a separate offence in respect of each day
(including a day of a conviction for the offence or any later day) during which
the contravention continues.
228‑5
Persons without accreditation not to offer higher education awards or courses
in external Territories
(1) A person
commits an offence if:
(a) the person *offers, or purports to offer, the
whole or a part of a *course
of study leading to a *higher education award; and
(b) the offer, or purported offer, is
in an external Territory; and
(c) the person is not an *Australian
university or approved under section 225‑3 to operate in relation to
that Territory as a university; and
(d) if the person is a *self‑accrediting
entity—the person is not authorised by a *government accreditation authority to
accredit the course; and
(e) the course is not accredited by
the Minister under section 225‑5 or 225‑10 in relation to that
Territory.
Penalty: 40 penalty units.
(2) A person commits an offence if:
(a) the person *offers, or purports to offer, a *higher education
award; and
(b) the offer, or purported offer, is
in an external Territory; and
(c) the person is not an *Australian
university; and
(d) the offer, or purported offer, of
the award is not dependent on the successful completion of a *course of study
leading to a higher education award.
Penalty: 40 penalty units.
(3) A person who contravenes
subsection (1) or (2) commits a separate offence in respect of each day
(including a day of a conviction for the offence or any later day) during which
the contravention continues.
228‑10
Persons without accreditation not to describe themselves as universities in
external Territories
(1) A person commits an offence if:
(a) the person uses the word
“university”, “university college” or any like words (whether or not in combination
with other words):
(i) to identify the person
in the person’s operation or purported operation in an external Territory; or
(ii) to identify the
person’s operation or purported operation in an external Territory; and
(b) the person, or the person’s
operation or purported operation, as so identified, is not an *Australian
university; and
(c) the Minister has not approved the
use of that word or those words under subsection 225‑3(2) or
section 233‑1 in relation to that Territory.
Penalty: 40 penalty units.
(2) A person who contravenes
subsection (1) commits a separate offence in respect of each day
(including a day of a conviction for the offence or any later day) during which
the contravention continues.
228‑15
Meanings of operating and offering
(1A) A reference to a person operating,
or purporting to operate, in an external Territory:
(a) as a university, or part of a
university, providing *courses of study leading to *higher education awards; or
(b) as another provider of courses of
study leading to higher education awards;
includes a reference to a person:
(c) offering, providing, or conducting
a business of offering or providing:
(i) the whole or a part of
such courses of study in relation to that Territory; or
(ii) such awards in relation
to that Territory; or
(d) using premises for the purposes of
operating as such a provider in relation to that Territory.
(1) A reference to a person operating,
or purporting to operate, in an external Territory:
(a) as a university, or part of a university,
providing *courses
of study leading to *higher
education awards; or
(b) 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 any of the following means:
(ca) a postal or other like service;
(c) a computer adapted for
communicating by way of the Internet or another communications network;
(d) a television receiver adapted to
allow the viewer to transmit information by way of a cable television network
or other communications network;
(e) a telephone;
(f) any other electronic device.
(2) 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 any of the means referred to in subsection (1).
Part 6‑2—Use of company names and business names
Division 233—Use of company names and business names
233‑1
Law in force in external Territory not to allow company or business names using
the word “university” etc.
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:
(a) registration, or purported
registration of; or
(b) 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
238‑1
Delegations by Secretary
(1) The *Secretary may, in writing, delegate to an
APS employee in the Department all or any of the powers of the Secretary under
this Act, the regulations or any Guidelines made under section 238‑10.
(2) 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:
(a) under section 36‑22; or
(b) relating to Chapter 3.
(2A) The *Secretary may, in writing, delegate to a *review officer of *Open Universities
Australia the Secretary’s powers under Division 209 to reconsider *reviewable
decisions made by Open Universities Australia relating to Chapter 3.
(2B) A review officer of *Open Universities Australia
is a person, or a person included in a class of persons, whom:
(a) the chief executive officer of Open
Universities Australia; or
(b) a delegate of the chief executive
officer of Open Universities Australia;
has appointed to be a review officer of Open Universities Australia
for the purposes of reviewing decisions made by it relating to assistance under
Chapter 3.
(3) In exercising powers under the
delegation, the delegate must comply with any directions of the *Secretary.
238‑5
Delegations by Minister
(1) The Minister may, by writing, delegate
to:
(a) the *Secretary; or
(b) an APS employee in the Department;
all or any of the Minister’s powers under this Act.
(2) In exercising powers under the
delegation, the delegate must comply with any directions of the Minister.
238‑7
Review of impact of Act
Before 31 December 2006, the Minister must cause a review to be commenced of the impact on the higher education
sector of the higher education reforms enacted through this Act.
238‑10
Guidelines
(1) The Minister may, by legislative
instrument, make Guidelines, specified in the second column of the table,
providing for matters:
(a) required or permitted by the
corresponding Chapter, Part or section specified in the third column of the
table to be provided; or
(b) necessary or convenient to be
provided in order to carry out or give effect to that Chapter, Part or section.
|
Guidelines
|
|
Item
|
Guidelines
|
Chapter/Part/section
|
|
1
|
Administration Guidelines
|
Chapter 5
|
|
2
|
Commonwealth Grant Scheme Guidelines
|
Part 2‑2; section 93‑10
|
|
3
|
Commonwealth Scholarships Guidelines
|
Part 2‑4
|
|
4
|
FEE‑HELP Guidelines
|
Part 3‑3
|
|
5
|
HECS‑HELP Guidelines
|
Part 3‑2
|
|
6
|
Higher Education Provider Guidelines
|
Part 2‑1
|
|
6A
|
Higher Education in External Territories Guidelines
|
Chapter 6
|
|
7
|
OS‑HELP Guidelines
|
Part 3‑4
|
|
8
|
Other Grants Guidelines
|
Part 2‑3
|
|
9
|
Reduction and Repayment Guidelines
|
Part 2‑5
|
|
10
|
Student Learning Entitlement Guidelines
|
Part 3‑1
|
|
11
|
Tuition Fee Guidelines
|
Part 2‑2
|
(1A) The Minister may, by legislative
instrument, make Guidelines, called Guidelines for Overseas Higher Education
Providers, specifying additional requirements or conditions applicable to *Table C providers.
Indexation
(3) Guidelines may provide for the indexation
of any or all amounts in the Guidelines, using the method of indexation set out
in Part 5‑6.
238‑12
Appropriation
Amounts payable by the Commonwealth
under this Act are payable out of the Consolidated Revenue Fund, which is
appropriated accordingly.
238‑15
Regulations
The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
Schedule 1A—VET FEE‑HELP Assistance Scheme
Note: See section 6‑1.
1 What
this Schedule is about
This Schedule provides for loans,
called VET FEE‑HELP assistance, to be made available to students enrolled
in certain accredited vocational education and training (VET) courses.
Part 1—VET providers
Division 1—Introduction
2 What
this Part is about
A body has to be approved as a VET
provider before its students can receive VET FEE‑HELP. This Part sets out
VET provider application and approval processes.
VET providers are subject to the VET
quality and accountability requirements.
A body’s approval as a VET provider
may be revoked in circumstances such as breach of a VET quality and
accountability requirement.
3 The
VET Provider Guidelines
*VET providers and the *VET quality and accountability
requirements are also dealt with in the *VET Provider Guidelines. The provisions
of this Part indicate when a particular matter is or may be dealt with in these
Guidelines.
Note: The VET Provider Guidelines are made by the
Minister under clause 99.
Division 3—What is a VET provider?
Subdivision 3‑A—General
4
Meaning of VET provider
A VET provider is a body
corporate that is approved under this Division.
5 When
a body becomes or ceases to be a VET provider
(1) A body corporate becomes a *VET provider if
approved by the Minister under clause 6.
(2) A *VET provider ceases to be a provider if
the provider’s approval is revoked or suspended under Division 5.
Subdivision 3‑B—How are bodies approved as VET providers?
6
Approval by the Minister
The Minister, in writing, may approve a
body corporate as a *VET
provider if:
(a) the body:
(i) is established under
the law of the Commonwealth, a State or a Territory; and
(ii) carries on business in
Australia; and
(iii) has its central
management and control in Australia; and
(b) the body’s principal purpose is to
provide education; and
(c) the body is a registered training
organisation as listed on *NTIS; and
(d) the body either fulfilled the *VET tuition
assurance requirements on the date of making an application under clause 9
or is exempted from those requirements under clause 8; and
(e) the body applies for approval as
provided for in clause 9; and
(f) the Minister is satisfied that
the body is willing and able to meet the *VET quality and accountability
requirements; and
(g) the body complies with any
requirements set out in the *VET Provider Guidelines relating to *VET credit
transfer arrangements.
7 The
VET tuition assurance requirements
The VET tuition assurance
requirements are that the body corporate complies with the requirements
for VET tuition assurance set out in the *VET Provider Guidelines.
8 VET
tuition assurance requirements exemption for approvals
(1) The Minister may, in writing, exempt a
body corporate from the *VET tuition assurance requirements for the purposes of
approving the body under clause 6.
Note: This clause only deals with exemptions from
the VET tuition assurance requirements when approving bodies as VET providers.
The VET Provider Guidelines will deal with exemptions from the VET tuition
assurance requirements after approval has happened.
(2) An exemption is subject to such
conditions as are specified in the exemption.
Note: A body will not be exempt if a condition of
the exemption is not complied with.
(3) An exemption given under this clause is
not a legislative instrument.
9
Application
(1) A body corporate may apply in writing to
the Minister for approval as a *VET provider.
(2) The application:
(a) must be in the form approved by
the Minister; and
(b) must be accompanied by such
information as the Minister requests.
10
Minister may seek further information
(1) For the purposes of determining an
application, the Minister may, by notice in writing, require an applicant to
provide such further information as the Minister directs within the period
specified in the notice.
(2) If an applicant does not comply with a
requirement under subclause (1), the application is taken to have been
withdrawn.
(3) A notice under this clause must include a
statement about the effect of subclause (2).
11
Minister to decide application
(1) The Minister must:
(a) decide an application for approval
as a *VET
provider; and
(b) cause the applicant to be notified
in writing whether or not the applicant is approved as a VET provider.
(2) For the purposes of paragraph 6(f), the
Minister may be satisfied that a body corporate is willing and able to meet the
*VET quality
and accountability requirements if the body gives the Minister such written
undertakings as the Minister requires.
(3) The Minister’s decision must be made:
(a) within 90 days after receiving the
application; or
(b) if further information is
requested under clause 10—within 60 days after the end of the period
within which the information was required to be provided under that clause;
whichever is the later.
(4) If the Minister decides that an applicant
is approved as a *VET
provider, the notice must also contain such information as is specified in the
VET Provider Guidelines as information that must be provided to an applicant
upon approval as a VET provider.
12
Approvals are legislative instruments
(1) A notice of approval under paragraph
11(1)(b) is a legislative instrument.
(2) A decision
of the Minister to approve a body corporate as a *VET provider takes effect at the later of
the following times:
(a) on the day immediately after the
last day on which a resolution referred to in subsection 42(1) of the Legislative
Instruments Act 2003 disallowing the notice could be passed;
(b) the day (if any) specified in the
notice under paragraph 11(1)(b) as the day on which the approval takes effect.
Division 4—What are the VET quality and accountability requirements?
Subdivision 4‑A—General
13 The
VET quality and accountability requirements
(1) The VET quality and accountability
requirements are:
(a) the *VET financial viability requirements (see
Subdivision 4‑B); and
(b) the *VET quality requirements (see
Subdivision 4‑C); and
(c) the *VET fairness requirements (see
Subdivision 4‑D); and
(d) the *VET compliance requirements (see
Subdivision 4‑E); and
(e) the *VET fee requirements (see
Subdivision 4‑F); and
(f) any other requirements for VET
quality and accountability set out in the *VET Provider Guidelines.
(2) This Division does not of its own force
require a *VET
provider to do any act or thing.
Subdivision 4‑B—The VET financial viability requirements
14
Basic requirement
A *VET provider:
(a) must be financially viable; and
(b) must be likely to remain
financially viable.
15
Financial information must be provided
(1) A *VET provider must give to the Minister a
financial statement for each *annual financial reporting period for the provider in which
a student of the provider receives assistance under this Schedule.
(2) The
statement:
(a) must be in the form approved by
the Minister; and
(b) must be provided together with a
report on the statement by an independent *qualified auditor; and
(c) must be provided within 6 months
after the end of the *annual
financial reporting period for which the statement was given.
(3) An annual financial reporting
period, for a *VET provider, is the period of 12 months:
(a) to which the provider’s accounts
relate; and
(b) that is notified in writing to the
Minister as the provider’s annual financial reporting period.
16
Minister to have regard to financial information
In determining whether a *VET provider is
financially viable, and likely to remain so, the Minister must have regard to
any financial statement provided by the provider under clause 15.
Subdivision 4‑C—The VET quality requirements
17
Provider must maintain quality
(1) A *VET provider must operate, and continue
to operate, at an appropriate level of quality for a VET provider.
(2) The Minister must not determine that a *VET provider meets
an appropriate level of quality for a VET provider unless the Minister is
satisfied that the provider meets the requirements set out in the *Australian Quality
Training Framework.
Subdivision 4‑D—The VET fairness requirements
18
Equal benefits and opportunity requirements
A *VET provider must comply with the
requirements relating to equal benefits and opportunity for students that are
set out in the *VET
Provider Guidelines.
19
Student grievance and review requirements
A *VET provider must comply with the
requirements relating to student grievance and review procedures that are set
out in the *VET
Provider Guidelines.
20
Tuition assurance requirements
(1) A *VET provider must comply with the *VET tuition
assurance requirements.
(2) The Minister may, by declaration in
writing, exempt a specified *VET provider from the requirement in subclause (1).
(3) An exemption:
(a) is subject to such conditions as
are specified in the exemption; and
(b) may be expressed to be in force
for a period specified in the exemption.
Note: A body will not be exempt if a condition of
the exemption is not complied with.
(4) An exemption given under this clause is
not a legislative instrument.
21 VET
providers to appoint review officers
(1) A *VET provider must appoint a *review officer to
undertake reviews of decisions made by the provider relating to assistance
under Part 2.
Note: The Secretary may delegate to a review officer
of a VET provider the power to reconsider decisions of the provider under
Subdivision 16‑C: see subclause 98(2).
(2) A review officer of a *VET provider is a
person, or a person included in a class of persons, whom:
(a) the chief executive officer of the
provider; or
(b) a
delegate of the chief executive officer of the provider;
has appointed to be a review officer of the provider for
the purposes of reviewing decisions made by the provider relating to assistance
under Part 2.
22 Review
officers not to review own decisions
A *VET provider must ensure that a *review officer of
the provider:
(a) does not review a decision that
the review officer was involved in making; and
(b) in reviewing a decision of the
provider, occupies a position that is senior to that occupied by any person
involved in making the original decision.
23
Procedures relating to personal information
(1) A *VET provider must comply with the
information privacy principles set out in section 14 of the Privacy Act
1988 in respect of *VET personal information obtained for the purposes of
Part 2 of this Schedule or Chapter 4.
(2) A *VET provider must have a procedure under
which a student enrolled with the provider may apply to the provider for, and
receive, a copy of *VET
personal information that the provider holds in relation to that student.
(3) The provider must comply with:
(a) the requirements of the *VET Provider
Guidelines relating to *personal information in relation to students; and
(b) the procedure referred to in
subclause (2).
Subdivision 4‑E—The VET compliance requirements
24 VET
provider to provide statement of general information
(1) A *VET provider must give to the Minister
such statistical and other information that the Minister by notice in writing
requires from the provider in respect of:
(a) the provision of vocational
education and training by the provider; and
(b) compliance by the provider with
the requirements of this Schedule.
(2) The
information must be provided:
(a) in a form approved by the
Minister; and
(b) in accordance with such other
requirements as the Minister makes.
(3) A notice under this section must not
require the giving of information that a *VET provider is required to give to the
Minister under clause 28.
25
Notice of events that affect provider’s ability to comply with VET quality and
accountability requirements
A *VET provider must, by writing, inform the
Minister of any event affecting:
(a) the provider; or
(b) a *related body
corporate of the provider;
that may significantly affect the provider’s capacity to
meet the *VET
quality and accountability requirements.
26
Compliance assurance—provider
(1) The Minister may require a *VET provider to be
audited as to compliance with any one or more of the following requirements:
(a) the *VET financial viability requirements;
(b) the *VET fairness requirements;
(c) the *VET compliance requirements;
(d) the *VET fee requirements;
(e) other requirements for VET quality
and accountability set out in the *VET Provider Guidelines.
(2) The audit must be conducted:
(a) by a body determined in writing by
the Minister; and
(b) at such time or times, and in such
manner, as the Minister requires.
(3) The provider must:
(a) fully co‑operate with the
auditing body in the course of its audit; and
(b) pay to the auditing body any
charges payable for such an audit.
(4) A determination made under
paragraph (2)(a) is not a legislative instrument.
Subdivision 4‑F—The VET fee requirements
27
Determining tuition fees for all students
(1) This section applies to a *VET unit of study
that a *VET
provider provides or proposes to provide during a period ascertained in
accordance with the *VET
Provider Guidelines.
(2) The provider must determine, for the
unit, the *VET
tuition fees that are to apply to students who may enrol in the unit during the
period.
(3) In determining *VET tuition fees under
subclause (2), the provider may have regard to any matters the provider
considers appropriate, other than matters specified in the *VET Provider
Guidelines as matters to which a provider must not have regard.
(4) The provider must not vary a *VET tuition fee
unless the provider:
(a) does so:
(i) before the date
ascertained in accordance with the *VET Provider Guidelines; and
(ii) in circumstances
specified in the VET Provider Guidelines; or
(b) does so with the written approval
of the Minister.
27A
Requirements in the VET Provider Guidelines
A *VET provider must comply with any
requirements set out in the *VET Provider Guidelines relating to:
(a) fees for *VET units of study; or
(b) fees for *VET courses of study; or
(c) matters or things for which fees
may be charged.
28
Schedules of VET tuition fees
General rule
(1) A *VET provider must give the Minister a
schedule of the *VET
tuition fees determined under clause 27 for all the VET units of study it
provides or proposes to provide, other than under *VET restricted access arrangements,
during a period ascertained in accordance with the *VET Provider Guidelines. It must give the
schedule:
(a) in a form approved by the
Minister; and
(b) in accordance with the
requirements that the Minister determines in writing.
(2) The provider must:
(a) ensure that the schedule provides
sufficient information to enable a person to work out the person’s *VET tuition fee
for each *VET
unit of study the provider provides or is to provide; and
(b) publish the schedule for a
particular period by the date ascertained in accordance with the *VET Provider
Guidelines; and
(c) ensure that the schedule is
available to all students enrolled, and persons seeking to enrol, with the
provider on request and without charge.
Restricted access arrangements
(2A) A *VET provider must give the Minister a schedule of
the *VET
tuition fees determined under clause 27 for each *VET unit of study it provides or
proposes to provide under a *VET restricted access arrangement during a period
ascertained in accordance with the *VET Provider Guidelines. It must give the schedule:
(a) in a form approved by the
Minister; and
(b) in accordance with the
requirements that the Minister determines in writing.
(2B) The provider must:
(a) ensure that the schedule provides
sufficient information to enable a person to work out the person’s *VET tuition fee
for the *VET
unit of study the provider provides or is to provide under the *VET restricted
access arrangement; and
(b) ensure that the schedule is
available, on request and without charge, to all students enrolled, or eligible
to be enrolled, under the VET restricted access arrangement.
Replacement schedules
(3) If:
(a) the provider has given the
Minister a schedule (the previous schedule) under:
(i) subclause (1) or
(2A); or
(ii) this subclause; and
(b) the provider varies a *VET tuition fee in
the previous schedule;
the provider must:
(c) by written notice given to the
Minister:
(i) withdraw the previous
schedule; and
(ii) inform the Minister of
the variation; and
(d) give the Minister a replacement
schedule incorporating the variation.
Note: The provider must comply with subclause 27(4)
when varying a tuition fee.
(4) Subclauses (1) to (2B) apply to the
replacement schedule in a corresponding way to the way in which they apply to
the previous schedule.
Division 5—When does a body cease to be a VET provider?
Subdivision 5‑A—General
29
Cessation of approval as a provider
A body ceases to be approved as a *VET provider:
(a) if the approval is revoked under
Subdivision 5‑B or 5‑D; or
(b) while the approval is suspended
under clause 36.
Subdivision 5‑B—Revocation for cause
30
Revocation of approval if application for approval as a provider is false or
misleading
The Minister may revoke a body’s
approval as a *VET
provider if the Minister:
(a) is satisfied that the body’s
application under clause 9 for approval as a VET provider contained
material that was false or misleading; and
(b) complies with the requirements of
clause 34.
31
Revocation of approval if providing education ceases to be the body’s principal
purpose
The Minister may revoke a body’s
approval as a *VET
provider if:
(a) the body’s principal purpose is no
longer to provide education; and
(b) the Minister complies with the
requirements of clause 34.
32
Revocation of approval as a provider if body ceases to be a registered training
organisation
The Minister may revoke a body’s
approval as a *VET
provider if:
(a) the body was listed as a
registered training organisation on *NTIS at the last time the body became a VET provider; and
(b) since that time, the body has
ceased to be listed as a registered training organisation on NTIS; and
(c) the Minister complies with the
requirements of clause 34.
33
Revocation of approval as a provider for a breach of the VET quality and
accountability requirements
(1) The Minister may revoke a body’s approval
as a *VET
provider if the Minister:
(a) is satisfied that the body has
breached a *VET
quality and accountability requirement; and
(b) is satisfied that it is
appropriate to take that action (see subclause (2)); and
(c) complies with the requirements of clause 34.
(2) Without limiting the matters that the
Minister may consider in deciding whether it is appropriate under this clause
to revoke a body’s approval as a *VET provider, the Minister may consider any or all of the
following matters:
(a) whether the breach in question is
of a minor or major nature;
(b) whether the breach has occurred
before and, if so, how often;
(c) the impact that the breach may
have on the body’s students;
(d) the impact of the breach on the *accredited VET
courses provided by the body;
(e) the impact of the breach on Australia’s
reputation as a provider of high quality education;
(f) any other matter set out in the *VET Provider
Guidelines.
Subdivision 5‑C—Process for decisions on revocation under Subdivision 5‑B
34
Process for revoking approval as a provider for loss of status or a breach
(1) Before revoking a body’s approval as a *VET provider under
Subdivision 5‑B, the Minister must give the body notice in writing:
(a) stating that the Minister is
considering revoking the body’s approval; and
(b) stating the reasons why the
Minister is considering revoking the body’s approval; and
(c) inviting the body to make written
submissions to the Minister within 28 days concerning why the approval should
not be revoked.
(2) In deciding whether or not to revoke a
body’s approval under Subdivision 5‑B, the Minister must consider
any submissions received from the body within the 28 day period.
(3) The Minister must notify the body in
writing of his or her decision whether to revoke the body’s approval under
Subdivision 5‑B. The notice:
(a) must be in writing; and
(b) must be given within the period of
28 days following the period in which submissions may have been given to the
Minister under subclause (1); and
(c) if the Minister decides to revoke
the body’s approval—must specify the day that the revocation takes effect.
(4) If no notice is given within the period
provided for in subclause (3), the Minister is taken to have decided not
to revoke the approval.
(5) If the Minister decides to revoke the
body’s approval:
(a) the revocation takes effect on the
day specified in the notice under subclause (3); and
(b) a copy of the notice must be
published in the Gazette.
35
Determination retaining approval as a provider in respect of existing students
(1) The Minister may determine, in writing,
that a revocation of a body’s approval as a *VET provider under Subdivision 5‑B
is of no effect for the purposes of assistance payable to the body’s students
under Part 2 to the extent that the assistance relates to students of the
body who have not completed the *VET courses of study in which they were enrolled with the
body on the day specified for the purposes of paragraph 34(5)(a).
(2) The determination may be included in the
notice of revocation under subclause 34(3).
(3) The body is taken, for the purposes of
this Schedule, to continue to be a *VET provider, but only to the extent referred to in
subclause (1).
(4) Subclause (3) does not prevent the
Minister subsequently revoking the body’s approval as a *VET provider under this Division.
36
Suspension of approval as a provider
(1) The Minister may, by legislative
instrument, determine that, with effect from a specified day, a body’s approval
as a *VET
provider is suspended pending the making of a decision under Subdivision 5‑B
as to whether to revoke the body’s approval as a provider.
(2) A copy of the determination must be given
to the body concerned.
(3) If the Minister makes a determination
under subclause (1) in respect of a body, the Minister must give to the
body a notice under clause 34 within 48 hours after giving a copy of the
determination to the body.
(4) A determination under this clause:
(a) takes effect accordingly on the
day specified in the determination; and
(b) ceases to have effect if the
Minister decides not to revoke the body’s approval as a *VET provider.
37
Determination retaining approval as a provider in respect of existing students
following suspension of approval
(1) The Minister may determine, in writing,
that a suspension of a body’s approval as a *VET provider under clause 36 is of
no effect for the purposes of assistance payable to the body’s students under
Part 2 to the extent that the assistance relates to students of the body
who have not completed the *VET courses of study in which they were enrolled with the
body on the day specified for the purposes of paragraph 36(4)(a).
(2) A copy of the determination must be given
to the body concerned.
(3) The body is taken, for the purposes of
this Schedule, to continue to be a *VET provider, but only to the extent referred to in
subclause (1).
(4) Subclause (3) does not prevent the
Minister subsequently revoking the body’s approval as a *VET provider under this Division.
(5) A determination made under
subclause (1) is not a legislative instrument.
38
Revocations are legislative instruments
(1) A notice of revocation under subclause
34(3) is a legislative instrument.
(2) A decision of the Minister to revoke the
approval of a *VET
provider takes effect at the later of the following times:
(a) on the day immediately after the
last day on which a resolution referred to in subsection 42(1) of the Legislative
Instruments Act 2003 disallowing the notice could be passed;
(b) the day specified in the notice of
revocation under subclause 34(3) as the day on which the revocation takes
effect.
Subdivision 5‑D—Revocation of approval on application
39
Revocation of approval as a provider on application
(1) The Minister may revoke the approval of a
body as a *VET
provider if the body requests the Minister in writing to revoke the approval.
(2) The request must be given to the Minister
at least 30 days before the day on which the revocation is requested to
have effect.
(3) The Minister must cause the body to be notified
of the revocation. The notice must:
(a) be in writing; and
(b) be given to the body at least 14
days before the day on which the revocation is to take effect.
(4) A notice of revocation under
subclause (3) is a legislative instrument.
(5) The revocation has effect on the day
requested unless another day is specified in the notice under
subclause (3).
Part 2—VET FEE‑HELP assistance
Division 6—Introduction
40
What this Part is about
A student may be entitled to VET FEE‑HELP
assistance for VET units of study if certain requirements are met.
The amount of assistance to which the
student may be entitled is based on his or her VET tuition fees for the units,
but there is a limit on the total amount of assistance that the student can
receive. The assistance is paid to a VET provider to discharge the student’s
liability to pay his or her VET tuition fees.
Note: Amounts of assistance under this Part may form
part of a person’s HELP debts that the Commonwealth recovers under
Chapter 4.
41 The
VET FEE‑HELP Guidelines
*VET FEE‑HELP assistance is also dealt with
in the *VET
FEE‑HELP Guidelines. The provisions of this Part indicate when a
particular matter is or may be dealt with in these Guidelines.
Note: The VET FEE‑HELP Guidelines are made by
the Minister under clause 99.
42 The
VET Tuition Fee Guidelines
*VET
tuition fees are also dealt with in the *VET Tuition Fee Guidelines.
Note: The VET Tuition Fee Guidelines are made by the
Minister under clause 99.
Division 7—Who is entitled to VET FEE‑HELP assistance?
Subdivision 7‑A—Basic rules
43
Entitlement to VET FEE‑HELP assistance
A student is entitled to *VET FEE‑HELP
assistance for a *VET
unit of study if:
(a) the student meets the citizenship
or residency requirements under clause 44; and
(b) the student’s *FEE‑HELP
balance is greater than zero; and
(c) the *census date for the unit is on or after 1 January 2008; and
(d) the unit meets the course
requirements under clause 45; and
(e) the unit is, or is to be,
undertaken as part of a *VET course of study; and
(f) the student:
(i) enrolled in the unit
on or before the census date for the unit; and
(ii) at the end of the
census date, remained so enrolled; and
(g) the student *meets the tax file
number requirements (see clause 80); and
(h) the student has, on or before the
census date, completed, signed and given to an *appropriate officer of the *VET provider a *request for
Commonwealth assistance in relation to the unit or, where the VET course of
study of which the unit forms a part is, or is to be, undertaken with the
provider, in relation to the VET course of study; and
(i) the student meets any other
requirements set out in the *VET FEE‑HELP Guidelines.
44
Citizenship or residency requirements
(1) The citizenship or residency requirements
for *VET FEE‑HELP
assistance for a *VET
unit of study are that the student in question is:
(a) an Australian citizen; or
(b) a *permanent humanitarian visa holder who
will be resident in Australia for the duration of the unit.
(2) In determining, for the purpose of
paragraph (1)(b), whether the student will be resident in Australia for
the duration of the unit, disregard any period of residence outside Australia
that:
(a) cannot reasonably be regarded as
indicating an intention to reside outside Australia for the duration of the
unit; or
(b) is required for the purpose of
completing a requirement of that unit.
45
Course requirements
(1) The course requirements for *VET FEE‑HELP
assistance for a *VET
unit of study are that the unit:
(a) is being undertaken as part of a *VET course of
study that meets any requirements set out in the *VET FEE‑HELP Guidelines relating to
*VET credit
transfer arrangements; and
(b) is not being undertaken as part of
a VET course of study that:
(i) is subject to a determination
under subclause (2); or
(ii) is with a *VET provider that
is subject to a determination under subclause (2).
(2) The Minister may, by legislative
instrument, determine that:
(a) a specified course provided by a
specified *VET
provider is a course in relation to which *VET FEE‑HELP assistance is
unavailable; or
(b) all courses provided by a
specified VET provider are courses in relation to which VET FEE‑HELP
assistance is unavailable.
(3) In deciding whether to make a
determination under subclause (2), the Minister must have regard to the
effect of the determination on students undertaking the course or courses.
(4) A determination of the Minister under
subclause (2) must not be made later than 6 months before the day that
students are able next to commence the specified course, or courses, with the
provider.
Subdivision 7‑B—FEE‑HELP balances
46
Main case of re‑crediting a person’s FEE‑HELP balance
(1) If clause 51 applies to re‑credit
a person’s *FEE‑HELP
balance with an amount equal to the amounts of *VET FEE‑HELP assistance that the
person has received for a *VET unit of study, then this clause does not apply in
relation to that unit.
Note: For FEE‑HELP balance, see
section 104‑15, and for FEE‑HELP limit, see
section 104‑20.
(2) A *VET provider must, on the *Secretary’s
behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts
of *VET FEE‑HELP
assistance that the person received for a *VET unit of study if:
(a) the person has been enrolled in
the unit with the provider; and
(b) 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
(c) the provider is satisfied that
special circumstances apply to the person (see clause 48); and
(d) the person applies in writing to
the provider for re‑crediting of the FEE‑HELP balance; and
(e) either:
(i) the application is
made before the end of the application period under clause 49; or
(ii) 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.
Note: A VET FEE‑HELP debt relating to a VET
unit of study will be remitted if the FEE‑HELP balance in relation to the
unit is re‑credited: see section 137‑18.
(3) If the provider is unable to act for one
or more of the purposes of subclause (2), or clause 48, 49 or 50, the
*Secretary
may act as if one or more of the references in those provisions to the provider
were a reference to the Secretary.
47 Re‑crediting
a person’s FEE‑HELP balance—no tax file number
(1) A *VET provider must, on the *Secretary’s
behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts
of *VET FEE‑HELP
assistance that the person received for a *VET unit of study if:
(a) the person has been enrolled in
the unit with the provider; and
(b) subclause 89(1) applies to the
person in relation to the unit.
Note: A VET FEE‑HELP debt relating to a VET
unit of study will be remitted if the FEE‑HELP balance in relation to the
unit is re‑credited: see section 137‑18.
(2) The *Secretary may re‑credit the
person’s *FEE‑HELP
balance under subclause (1) if the provider is unable to do so.
48
Special circumstances
For the purposes of paragraph 46(2)(c),
special circumstances apply to the person if and only if the *VET provider
receiving the application is satisfied that circumstances apply to the person
that:
(a) are
beyond the person’s control; and
(b) do not
make their full impact on the person until on or after the *census date for
the *VET unit
of study in question; and
(c) make it impracticable for the
person to complete the requirements for the unit in the period during which the
person undertook, or was to undertake, the unit.
49
Application period
(1) If:
(a) the person applying under
paragraph 46(2)(d) for the re‑crediting of the person’s *FEE‑HELP
balance in relation to a *VET unit of study has withdrawn his or her enrolment in the
unit; and
(b) the *VET provider gives notice to the person
that the withdrawal has taken effect;
the application period for the application is the period
of 12 months after the day specified in the notice as the day the withdrawal
takes effect.
(2) If subclause (1) does not apply, the
application period for the application is the period of 12 months after the
period during which the person undertook, or was to undertake, the unit.
50
Dealing with applications
(1) If:
(a) the application is made under
paragraph 46(2)(d) before the end of the relevant application period; or
(b) the
*VET 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;
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.
(2) The notice must include a statement of
the reasons for the decision.
Note: Refusals of applications are reviewable under
Division 16.
51 Re‑crediting
a person’s FEE‑HELP balance if provider ceases to provide course of which
unit forms part
(1) A *VET provider must, on the *Secretary’s
behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts
of *VET FEE‑HELP
assistance that the person received for a *VET unit of study if:
(a) the person has been enrolled in
the unit with the provider; and
(b) the person has not completed the
requirements for the unit during the period during which the person undertook,
or was to undertake, the unit because the provider ceased to provide the unit
as a result of ceasing to provide the course of which the unit formed part; and
(c) the *VET tuition assurance requirements
applied to the provider at the time the provider ceased to provide the unit;
and
(d) the person chose the option
designated under the VET tuition assurance requirements as VET tuition fee
repayment in relation to the unit.
Note: A VET FEE‑HELP debt relating to a VET
unit of study will be remitted if the FEE‑HELP balance in relation to the
unit is re‑credited: see subsection 137‑18(4).
(2) The *Secretary may re‑credit the
person’s *FEE‑HELP
balance under subclause (1) if the provider is unable to do so.
Division 8—How are amounts of VET FEE‑HELP assistance worked out?
52 The
amount of VET FEE‑HELP assistance for a VET unit of study
The amount of *VET FEE‑HELP assistance to
which a student is entitled for a *VET unit of study is the difference between:
(a) the student’s *VET tuition fee
for the unit; and
(b) the sum of any *up‑front VET
payments made in relation to the unit.
Note: A lesser amount may be payable because of
clause 54.
53 Up‑front
payments
(1) An up‑front VET payment,
in relation to a *VET
unit of study for which a student is liable to pay a *VET tuition fee, is a payment of
all or part of the student’s VET tuition fee for the unit, other than a payment
of *VET FEE‑HELP
assistance under this Part.
(2) The payment must be made on or before the
*census date
for the unit.
54
Amounts of VET FEE‑HELP assistance and FEE‑HELP assistance must not
exceed the FEE‑HELP balance
Amount of VET FEE‑HELP assistance for one unit
(1) The amount of *VET FEE‑HELP assistance to
which a student is entitled for a *VET unit of study is an amount equal to the student’s *FEE‑HELP
balance on the *census
date for the unit if:
(a) there is no other:
(i) VET unit of study,
with the same census date, for which the student is entitled to VET FEE‑HELP
assistance; or
(ii) unit of study, with
the same census date, for which the student is entitled to *FEE‑HELP
assistance; and
(b) the amount of VET FEE‑HELP
assistance to which the student would be entitled under clause 52 for the
unit would exceed that FEE‑HELP balance.
Amount of VET FEE‑HELP assistance for more than
one unit
(2) If the sum of:
(a) the amount of *VET FEE‑HELP
assistance to which a student would be entitled under clause 52 for a *VET unit of study;
and
(b) any other amounts of:
(i) VET FEE‑HELP
assistance to which the student would be entitled under that clause for other
units that have the same *census date as that unit; and
(ii) *FEE‑HELP
assistance to which the student would be entitled under clause 52 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 subclause (1) of this clause, the total amount
of VET FEE‑HELP assistance and FEE‑HELP assistance to which the
student is entitled for all of those units is an amount equal to that FEE‑HELP
balance.
Example: Kath has a FEE‑HELP balance of $2,000, and
is enrolled in 4 units with the same census date. Kath’s VET tuition fee for
each unit is $600. The total amount of VET FEE‑HELP assistance to which
Kath is entitled for the units is $2,000, even though the total amount of her
VET tuition fees for the units is $2,400.
(3) If the student has enrolled in the units
with more than one *VET
provider or higher education provider, the student must notify each provider of
the proportion of the total amount of *VET FEE‑HELP assistance or *FEE‑HELP
assistance that is to be payable in relation to the units in which the student
has enrolled with that provider.
Division 9—How are amounts of VET FEE‑HELP assistance paid?
Note: Division 11 also deals with payments by
the Commonwealth under this Schedule.
55
Payments
If a student is entitled to an amount of
*VET FEE‑HELP
assistance for a *VET
unit of study with a *VET
provider, the Commonwealth must:
(a) as a benefit to the student, lend
to the student the amount of VET FEE‑HELP assistance; and
(b) pay the amount lent to the
provider in discharge of the student’s liability to pay his or her *VET tuition fee
for the unit.
Note: Amounts of assistance under this Part may form
part of a person’s HELP debts that the Commonwealth recovers under
Chapter 4.
56
Effect of FEE‑HELP balance being re‑credited
(1) If, under subclause 46(2) or 47(1), or
clause 51, a person’s *FEE‑HELP balance is re‑credited with an amount
relating to *VET
FEE‑HELP assistance for a *VET unit of study, the provider must pay to the
Commonwealth an amount equal to the amount of VET FEE‑HELP assistance to
which the person was entitled for the unit.
Note: The provider must repay the amount under
subclause (1) even if the person’s FEE‑HELP balance is not increased
by an amount equal to the amount re‑credited.
(2) Subclause (1) does not apply to the
provider if:
(a) the person’s *FEE‑HELP
balance was re‑credited under subclause 46(2) (main case of re‑crediting
a person’s FEE‑HELP balance); and
(b) the person enrolled in the unit in
circumstances that make it a replacement unit within the meaning of the *VET tuition
assurance requirements.
(3) The *VET Provider Guidelines may, in setting
out the *VET
tuition assurance requirements, specify, in relation to the re‑crediting
of a person’s *FEE‑HELP
balance in circumstances to which subclause (2) applies:
(a) the amount (if any) that is to be
paid to the Commonwealth; and
(b) the person (if any) who is to pay
the amounts.
Part 3—Administration
Division 10—Introduction
57
What this Part is about
This Part deals with the following
administrative matters:
• payments made by the
Commonwealth under this Schedule (see Division 11);
• administrative requirements
that are imposed on VET providers (see Division 12);
• electronic communication
between VET providers and students (see Division 13);
• protection of VET personal
information gained in the administration of Part 2 of this Schedule (see
Division 14) and Chapter 4;
• tax file numbers of
students (see Division 15);
• reconsideration and
administrative review of certain decisions (see Division 16).
58 The
VET Administration Guidelines
Administrative matters are also dealt
with in the *VET
Administration Guidelines. The provisions of this Part may indicate when a
particular matter is or may be dealt with in these Guidelines.
Note: The VET Administration Guidelines are made by
the Minister under clause 99.
Division 11—Payments by the Commonwealth
59
What this Division is about
This Division contains general
provisions relating to how the Commonwealth makes payments under this Schedule
to VET providers.
60
Time and manner of payments
(1) Amounts payable by the Commonwealth to a *VET provider under
this Schedule are to be paid in such a way, including payment in instalments,
as the Minister determines.
(2) Payments of amounts payable by the
Commonwealth to a *VET
provider under this Schedule are to be made at such times as the *Secretary determines.
61
Advances
(1) The *Secretary may determine that an advance
is to be made to a *VET
provider on account of an amount that is expected to become payable under a
provision of this Schedule to the provider.
(2) If the advance exceeds the amount that becomes
payable, an amount equal to the excess may be:
(a) deducted from any amount that is
payable, or to be paid, to the provider under this Schedule; or
(b) recovered by the Commonwealth from
the provider as a debt due to the Commonwealth.
(3) If the provider uses the advance for a
purpose other than that for which it was given, an amount equal to the advance
may be:
(a) deducted from any amount that is
payable, or to be paid, to the provider under this Schedule; or
(b) recovered by the Commonwealth from
the provider as a debt due to the Commonwealth.
(4) The conditions that would be applicable
to a payment of the amount on account of which the advance is made are
applicable to the advance.
62
Rounding of amounts
If an amount payable by the Commonwealth
under this Schedule is an amount made up of dollars and cents, round the amount
down to the nearest dollar.
Division 12—Administrative requirements on VET providers
63
What this Division is about
This Division imposes a number of
administrative requirements on VET providers.
64
Notices
Who gets a notice?
(1) A *VET provider must give such notices as
are required by the *VET
Administration Guidelines to a person:
(a) who is enrolled with the provider
for a *VET
unit of study; and
(b) who is seeking Commonwealth
assistance under this Schedule for the unit.
Contents of notice
(2) A notice must contain the information set
out in the *VET
Administration Guidelines as information that must be provided in such a
notice.
Date by which notice to be given
(3) A notice must be given within the period
set out in the *VET
Administration Guidelines.
Purpose and effect of notice
(4) A notice under this clause is given for
the purpose only of providing information to a person. Any liability or
entitlement of a person under this Schedule is not affected by:
(a) the failure of a *VET provider to
give a notice under this clause; or
(b) the failure of a VET provider to
give such a notice by the date required under the *VET Administration Guidelines; or
(c) the notice containing an incorrect
statement.
65
Correction of notices
VET provider to correct notice
(1) If, after giving a person a notice under
clause 64, a *VET
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.
Person may request correction of notice
(2) A person who receives a notice from a *VET provider under
clause 64 may give to the provider a written request for the notice to be
corrected in respect of a material particular if the person considers that the
notice was not, or has ceased to be, correct in that particular.
(3) 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.
(4) The request must:
(a) specify the particular in the
notice that the person considers is incorrect; and
(b) specify the reasons the person has
for considering that the particular is incorrect.
(5) The making of the request does not affect
any liability or entitlement of the person under this Schedule.
VET provider to process request
(6) If a *VET provider receives a request under
this clause the provider must, as soon as practicable:
(a) determine the matter to which the
request relates; and
(b) notify the person in writing of
the provider’s determination; and
(c) if the provider determines that a
material particular in the notice was not, or has ceased to be, correct—give a
further notice under subclause (1).
66
Charging VET tuition fees
A *VET provider must not require a *domestic student
who is enrolling in a unit in circumstances that make it a replacement unit
within the meaning of the *VET tuition assurance requirements to pay to the provider
the student’s *VET
tuition fee for the unit.
67
Determining census dates
(1) A *VET provider must, for each *VET unit of study
it provides or proposes to provide during a period ascertained in accordance
with the *VET
Administration Guidelines, determine for that period a particular date to be
the *census
date for the unit.
Note: If a VET provider provides the same unit over
different periods, the unit is taken to be a different VET unit of study in
respect of each period. Therefore the provider will have to determine a
separate census date in respect of each period.
(2) A date determined under
subclause (1) must not occur less than 20% of the way through the period
during which the unit is undertaken.
(3) The provider must publish the *census date for
the unit by the date ascertained in accordance with, and in the manner
specified in, the *VET
Administration Guidelines.
Variations
(4) The provider must not vary the *census date for
the unit after publication under subclause (3), unless the provider:
(a) does so:
(i) before the date
ascertained in accordance with the *VET Administration Guidelines; and
(ii) in circumstances
specified in the VET Administration Guidelines; or
(b) does so with the written approval
of the Minister.
(5) If paragraph (4)(a) applies, the
provider must publish the variation by the date ascertained in accordance with,
and in the manner specified in, the *VET Administration Guidelines.
(6) If paragraph (4)(b) applies, the
provider must publish the variation by the date, and in the manner, specified
by the Minister in the approval.
68
Communications with the Commonwealth concerning students etc.
In communications under, or for the
purposes of, this Schedule between the Commonwealth and a *VET provider
concerning a person who:
(a) is enrolled, or seeking to enrol,
in a *VET
unit of study with the provider; and
(b) has indicated that the person is
seeking Commonwealth assistance under this Schedule for the unit;
the provider must use any identifier for that person that
the *Secretary
has indicated must be used in such communications.
Division 13—Electronic communications
69
What this Division is about
Certain documents that this Schedule
requires or permits to be given between students and VET providers may be
transmitted electronically.
70
Guidelines may deal with electronic communications
(1) The *VET Administration Guidelines may make
provision for or in relation to requiring or permitting information or
documents to be given by students to *VET providers, or by VET providers to students, in
accordance with particular information technology requirements:
(a) on a particular kind of data
storage device; or
(b) by means of a particular kind of
electronic communication.
(2) The *VET Administration Guidelines may make
provision for or in relation to requiring, in relation to an electronic
communication from a student to a *VET provider:
(a) that the communication contain an
electronic signature (however described); or
(b) that the communication contain a
unique identification in an electronic form; or
(c) that a particular method be used
to identify the originator of the communication and to indicate the
originator’s approval of the information communicated.
(3) The reference in subclause (1) to
giving information includes a reference to anything that is giving
information for the purposes of section 9 of the Electronic
Transactions Act 1999.
(4) In this
clause:
data storage device has the same meaning as
in the Electronic Transactions Act 1999.
electronic communication has the same meaning
as in the Electronic Transactions Act 1999.
information has the same meaning as in the Electronic
Transactions Act 1999.
information technology requirements has the
same meaning as in the Electronic Transactions Act 1999.
Division 14—Protection of VET personal information
71
What this Division is about
A VET officer who discloses, copies or
records VET personal information otherwise than in the course of official
employment, or causes unauthorised access to or modification of VET personal
information, commits an offence.
72
Meaning of VET personal information
VET personal information
is:
(a) information or an opinion
(including information or an opinion forming part of a database), whether true
or not, and whether recorded in a material form or not, about an individual
whose identity is apparent, or can reasonably be ascertained, from the
information or opinion; and
(b) obtained or created by a *VET officer for
the purposes of Part 2 of this Schedule and Chapter 4.
73 Use
of VET personal information
A *VET officer commits an offence if:
(a) the officer either:
(i) discloses information;
or
(ii) makes a copy or other
record of information; and
(b) the information is *VET personal
information; and
(c) the information was acquired by
the officer in the course of the officer’s *official employment; and
(d) the
disclosure did not occur, or the copy or record was not made, in the course of
that official employment.
Penalty: Imprisonment for 2 years.
74
Meanings of VET officer etc. and official employment
Meaning of VET officer
(1) A person is a VET officer if:
(a) the person is or was a *Commonwealth
officer (see subsection 179‑15(2)); or
(b) the person is or was an *officer of a *VET provider (see
subclause (2)).
(2) A person is an officer of a VET
provider if the person is:
(a) an officer or employee of the
provider; or
(b) a person who, although not an
officer or employee of the provider, performs services for or on behalf of the
provider.
Meaning of official employment
(3) Official employment of a *VET officer is:
(a) for a *Commonwealth officer—the performance of
duties or functions, or the exercise of powers, under, or for the
purposes of, this Schedule; or
(b) for an *officer of a VET provider—service
as such an officer.
75
When information is disclosed in the course of official employment
Without limiting the matters that are
disclosures that occur in the course of a *VET officer’s *official employment for the
purposes of paragraph 73(d), the following disclosures are taken to be
disclosures that occur in the course of a VET officer’s official employment:
(a) disclosure by a *Commonwealth
officer of *VET
personal information to another Commonwealth officer to assist that other
officer in the other officer’s official employment;
(b) disclosure by a VET officer of VET
personal information to the Administrative Appeals Tribunal in connection with
a *reviewable
VET decision;
(c) disclosure by a Commonwealth
officer of VET personal information to an *officer of a VET provider to assist the
provider’s officer in performing duties or functions, or in exercising powers,
under, or for the purposes of, this Schedule;
(d) disclosure by an officer of a VET
provider of VET personal information to a Commonwealth officer to assist the
Commonwealth officer in the Commonwealth officer’s official employment.
76
Commissioner may disclose information
(1) Despite anything in an Act of which the *Commissioner has
the general administration, the Commissioner, or a person authorised by the
Commissioner, may communicate *VET personal information to a *VET officer for use by that officer:
(a) in the case of a *Commonwealth
officer—in the course of the officer’s *official employment; or
(b) in the case of an *officer of a *VET provider—to
assist the officer in performing duties or functions, or in exercising powers,
under, or for the purposes of, this Schedule.
(2) Despite subsection 13.3(3) of the Criminal
Code, in a prosecution for an offence against an Act of which the *Commissioner has
the general administration, the defendant does not bear an evidential burden in
relation to whether this clause applies to a communication of *VET personal
information.
77
Oath or affirmation to protect information
(1) A *VET officer must, if and when required by
the *Secretary
or the *Commissioner
to do so, make an oath or affirmation to protect information in accordance with
this Division.
(2) The *Secretary may determine, in writing:
(a) the form of the oath or
affirmation that the Secretary will require; and
(b) the manner in which the oath or
affirmation must be made.
(3) The *Commissioner may determine, in writing:
(a) the form of the oath or affirmation
that the Commissioner will require; and
(b) the manner in which the oath or
affirmation must be made.
78
Unauthorised access to, or modification of, VET personal information
(1) A person commits an offence if:
(a) the person causes any unauthorised
access to, or modification of, *VET personal information:
(i) that is held in a
computer; and
(ii) to which access is
restricted by an access control system associated with a function of the
computer; and
(b) the person intends to cause the
access or modification; and
(c) the person knows that the access
or modification is unauthorised; and
(d) either of the following apply:
(i) the VET personal
information is held in a computer of a *VET provider;
(ii) the VET personal
information is held on behalf of a provider.
Penalty: 2 years imprisonment.
(2) Absolute liability applies to
paragraph (1)(d).
Division 15—Tax file numbers
Subdivision 15‑A—Introduction
79
What this Division is about
Requirements relating to students’ tax
file numbers apply to assistance under Part 2 that gives rise to VET FEE‑HELP
debts.
The Commissioner may notify VET
providers of matters relating to tax file numbers.
VET providers have obligations
relating to notifying students about tax file number requirements.
VET providers have obligations
relating to cancelling the enrolment of students who do not have tax file
numbers.
Note: Part VA of the Income Tax Assessment
Act 1936 provides for issuing, cancelling or altering tax file numbers.
Subdivision 15‑B—What are the tax file number requirements for assistance
under Part 2?
80
Meeting the tax file number requirements
(1) A student who is enrolled, or proposes to
enrol, with a *VET
provider in a *VET
unit of study meets the tax file number requirements for
assistance under Part 2 if:
(a) the student notifies his or her *tax file number to
an *appropriate
officer of the provider, and the provider is satisfied (in accordance with
subclause (4)) that this number is a valid tax file number; or
(b) the student gives to the officer a
certificate from the *Commissioner
stating that the student has applied to the Commissioner asking the
Commissioner to issue a tax file number to the student.
(2) Compliance by a person with
subclause (1) in relation to a *VET course of study is to be ignored in determining whether
there has been compliance by the person with subclause (1) in relation to
any other VET course of study.
(2A) If the student is seeking *VET FEE‑HELP
assistance for a *VET
unit of study, he or she does not meet the tax file number requirements for the
assistance unless he or she complies with subclause (1) on or before the *census date for
the unit.
(3) A notification under
paragraph (1)(a) may be included in a *request for Commonwealth assistance that
the student has given to the provider in relation to:
(a) the *VET unit of study for which the
assistance is sought; or
(b) the *VET course of study of which the unit
forms a part; or
(c) any other VET unit of study
forming part of that course.
(4) The *Commissioner may issue guidelines about
the circumstances in which a *VET provider is to be, or is not to be, satisfied that a
number is a valid *tax
file number for the purposes of paragraph (1)(a).
(5) A certificate under paragraph (1)(b)
must be in a form approved by the *Commissioner.
(6) A guideline issued under
subclause (4) is a legislative instrument.
81 Who
is an appropriate officer?
An appropriate officer of
a *VET
provider, means a person, or a person included in a class of persons, whom:
(a) the chief executive officer of the
provider; or
(b) a delegate of the chief executive
officer of the provider;
has appointed to be an appropriate officer of the provider
for the purposes of this Schedule.
82
Student to notify tax file number when issued
If a student *meets the tax file number
requirements for the assistance under paragraph 80(1)(b):
(a) the student must notify his or her
*tax file
number to an *appropriate
officer of the *VET
provider within 21 days from the day on which the *Commissioner issues the tax file number
to the student; and
(b) the provider must be satisfied (in
accordance with subclause 80(4)) that this number is a valid tax file number.
Subdivision 15‑C—In what circumstances can VET providers be notified of tax
file number matters?
83
When tax file numbers are issued etc.
The *Commissioner may give to a *VET provider
written notice of the *tax file number of a student who is enrolled in a *VET course of
study with the provider if the Commissioner:
(a) issues the tax file number to the
student; or
(b) refuses to issue a tax file number
to the student on the ground that the student already has a tax file number.
84
When tax file numbers are altered
(1) The *Commissioner may give to a *VET provider
written notice of the *tax file number of a student who is enrolled in a *VET 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.
(2) That new number is taken to be the number
that the student notified to the provider.
85
When tax file numbers are incorrectly notified—students with tax file numbers
(1) If the *Commissioner is satisfied:
(a) that the *tax file number that a student has
notified to a *VET
provider:
(i) has been cancelled or
withdrawn since the notification was given; or
(ii) is otherwise wrong;
and
(b) that the student has a tax file
number;
the Commissioner may give to the provider written notice
of the incorrect notification and of the student’s tax file number.
(2) That number is taken to be the number
that the student notified to the provider.
86
When tax file numbers are incorrectly notified—students without tax file
numbers
(1) If:
(a) the *Commissioner is satisfied that the *tax file number
that a student notified to a *VET provider:
(i) has been cancelled
since the notification was given; or
(ii) is for any other
reason not the student’s tax file number; and
(b) the Commissioner is not satisfied
that the student has a tax file number;
the Commissioner may give to the provider a written notice
informing the provider accordingly.
(2) The *Commissioner must give a copy of any
notice under subclause (1) to the student concerned, together with a
written statement of the reasons for the decision to give the notice.
Note: Decisions to give notice under
subclause (1) are reviewable under section 202F of the Income Tax
Assessment Act 1936.
87
When applications are refused or tax file numbers are cancelled
(1) If the *Commissioner:
(a) refuses a student’s application
for the issue of a *tax
file number; or
(b) cancels a tax file number issued
to a student;
the Commissioner may give to a *VET provider with which the student
is enrolled in a *VET
course of study a written notice informing the provider accordingly.
(2) The *Commissioner must give a copy of any
notice under subclause (1) to the student concerned, together with a
written statement of the reasons for the decision to give the notice.
Note: Decisions to give notice under
subclause (1) are reviewable under section 202F of the Income Tax
Assessment Act 1936.
Subdivision 15‑D—Other provisions relating to tax file numbers
88
Giving information about tax file number requirements
Requests for VET FEE‑HELP assistance—requirements
on VET providers
(1) A *VET provider must notify a person in
writing how to *meet
the tax file number requirements if:
(a) the person is enrolled in a *VET unit of study
with the provider; and
(b) the person has, on or before the *census date for
the unit, completed, signed and given to the *appropriate officer of the provider a *request for
Commonwealth assistance in relation to the unit or, where the *VET course of
study of which the unit forms a part is undertaken with the provider, in
relation to the VET course of study; and
(c) in that request, the person
requests *VET
FEE‑HELP assistance for the unit or the course; and
(d) the request does not include a
number that purports to be the person’s *tax file number.
(2) The provider must notify the person under
subclause (1):
(a) on or before the *census date for
the unit; or
(b) within 7 days after the person
gives the provider the *request for Commonwealth assistance;
whichever is earlier.
(3) A request for Commonwealth
assistance, in relation to a person enrolling in a *VET unit of study
means a document:
(a) in which the person requests the
Commonwealth to provide assistance under this Act in relation to the unit or,
where the unit forms part of a *VET course of study undertaken with the provider, in
relation to the course of study; and
(b) that is in the form approved by
the Minister.
Cases where there is no obligation to notify
(4) This clause does not apply to the person
if the person, in the *request for Commonwealth assistance, requests *VET FEE‑HELP
assistance but the person is not entitled to the assistance.
89 No
entitlement to VET FEE‑HELP assistance for students without tax file
numbers
(1) This subclause applies to a person in
relation to a *VET
unit of study if:
(a) the person is enrolled with a *VET provider in the
unit; and
(b) the provider receives notice under
clause 86 or 87 to the effect that the person does not have, or no longer
has, a *tax
file number; and
(c) 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 subclause (3)) is a
valid tax file number; and
(d) the person is entitled to *VET FEE‑HELP
assistance for the unit (ignoring paragraph 43(1)(h)).
Note: The person’s FEE‑HELP balance in relation
to the unit is re‑credited: see subclause 47(1).
(2) A *VET provider must, in deciding whether it
is satisfied that a number is a valid *tax file number for the purposes of
paragraph (1)(d), comply with the guidelines issued by the *Commissioner under
subclause 80(4).
(3) A *VET provider must comply with any
requirements, set out in guidelines issued by the *Commissioner, relating to procedures for
informing persons of the need to obtain a valid *tax file number where the persons may be
affected by subclause (1) applying to them.
(4) A guideline issued under
subclause (3) is a legislative instrument.
Division 16—Review of decisions
Subdivision 16‑A—Introduction
90
What this Division is about
Some decisions made under this
Schedule are subject to reconsideration and then review by the Administrative
Appeals Tribunal.
Subdivision 16‑B—Which decisions are subject to review?
91
Reviewable VET decisions etc.
The following table sets out:
(a) the reviewable VET decisions
under this Schedule; and
(b) the decision maker,
for the purposes of this Division, in respect of each of those decisions.
|
Reviewable VET
decisions
|
|
Item
|
Decision
|
Provision under which
decision is made
|
Decision maker
|
|
1
|
Refusal to re‑credit a person’s *FEE‑HELP
balance
|
subclause 46(2)
|
(a) the *VET provider with whom the student is enrolled in the
unit; or
(b) if the *Secretary made the decision to refuse the re‑crediting—the
Secretary
|
Note: The decisions referred to in item 1 of
the table are made by a VET provider on the Secretary’s behalf.
92
Deadlines for making reviewable VET decisions
If:
(a) this Schedule provides for a
person to apply to a *decision
maker to make a *reviewable
VET decision; and
(b) a period is specified under this
Schedule for giving notice of the decision to the applicant; and
(c) the decision maker has not
notified the applicant of the decision maker’s decision within that period;
the decision maker is taken, for the purposes of this
Schedule, to have made a decision to reject the application.
93
Decision maker must give reasons for reviewable VET decisions
(1) If this Schedule requires the *decision maker to
notify a person of the making of a *reviewable VET decision, the notice must include reasons
for the decision.
(2) Subclause (1) does not affect an
obligation, imposed upon the *decision maker by any other law, to give reasons for a
decision.
Subdivision 16‑C—How are decisions reconsidered?
94
Reviewer of decisions
(1) The reviewer of a *reviewable VET
decision is:
(a) if the *decision maker was a *VET provider
acting on behalf of the *Secretary—the Secretary; or
(b) in any other case—the decision
maker, but see subclause (2).
(2) If:
(a) a *reviewable VET decision was made by a
delegate of a *decision
maker; and
(b) 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:
(c) was not involved in making the
decision; and
(d) occupies a position that is senior
to that occupied by any person involved in making the decision.
Note: The Secretary may delegate to a review officer
of a VET provider the power to reconsider reviewable VET decisions made under
Part 2: see subclause 98(2).
95
Reviewer may reconsider reviewable VET decisions
(1) The *reviewer of a *reviewable VET decision may
reconsider the decision if the reviewer is satisfied that there is sufficient
reason to do so.
(2) The *reviewer may reconsider the decision even
if:
(a) an application for reconsideration
of the decision has been made under clause 96; or
(b) the decision has been confirmed,
varied or set aside under clause 96 and an application has been made under
clause 97 for review of the decision.
(3) After reconsidering the decision, the *decision maker
must:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and
substitute a new decision.
(4) The *reviewer’s decision (the decision
on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the
decision on review; or
(b) if a day is not specified—on the
day on which the decision on review was made.
(5) The *reviewer must give written notice of the
decision on review to the person to whom that decision relates.
(6) The notice:
(a) must be given within a reasonable
period after the decision is made; and
(b) must contain a statement of the
reasons for the *reviewer’s
decision on review.
Note: Section 27A of the Administrative
Appeals Tribunal Act 1975 requires the person to be notified of the
person’s review rights.
96
Reconsideration of reviewable VET decisions on request
(1) A person whose interests are affected by
a *reviewable
VET decision may request the *reviewer to reconsider the decision.
(2) 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.
(3) The notice must set out the reasons for
making the request.
(4) After receiving the request, the *reviewer must
reconsider the decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and
substitute a new decision.
(5) The *reviewer’s decision (the decision
on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the
decision on review; or
(b) if a day is not specified—on the
day on which the decision on review was made.
(6) The *reviewer must give the person written
notice of the decision on review.
(7) The notice:
(a) must be given within a reasonable
period after the decision on review is made; and
(b) must contain a statement of the
reasons for the decision on review.
(8) The *reviewer is taken, for the purposes of
this Division, 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.
Note: Section 27A of the Administrative
Appeals Tribunal Act 1975 requires the person to be notified of the
person’s review rights.
Subdivision 16‑D—Which decisions are subject to AAT review?
97 AAT
review of reviewable VET decisions
An application may be made to the
Administrative Appeals Tribunal for the review of a *reviewable VET decision that has
been confirmed, varied or set aside under clause 95 or 96.
Part 4—Miscellaneous
98
Delegations by Secretary
(1) The *Secretary may, in writing, delegate to an
APS employee in the Department all or any of the powers of the Secretary under
clause 99.
Note: Section 238‑5 provides for the
Minister to delegate his or her powers under this Act.
(2) The *Secretary may, in writing, delegate to a *review officer of
a *VET
provider the Secretary’s powers under Subdivision 16‑C to reconsider
*reviewable
VET decisions made by the provider relating to Part 2.
(3) In exercising powers under the
delegation, the delegate must comply with any directions of the *Secretary.
99 VET
Guidelines
(1) The Minister may, by legislative
instrument, make Guidelines, specified in the second column of the table,
providing for matters:
(a) required or permitted by the
corresponding Part specified in the third column of the table to be provided;
or
(b) necessary or convenient to be
provided in order to carry out or give effect to that Part.
|
Guidelines
|
|
Item
|
Guidelines
|
Part
|
|
1
|
*VET
Provider Guidelines
|
Part 1
|
|
2
|
*VET
FEE‑HELP Guidelines
|
Part 2
|
|
3
|
*VET
Tuition Fee Guidelines
|
Part 2
|
|
4
|
*VET
Administration Guidelines
|
Part 3
|
Indexation
(2) Guidelines may provide for the indexation
of any or all amounts in the Guidelines, using the method of indexation set out
in Part 5‑6.