Explanatory Memorandum
(Circulated by authority of the Minister for Education, Science and Training, the Honourable Dr Brendan Nelson MP)Schedule 2 - Tuition assurance requirements
Higher Education Support Act 2003
Section 16-30 deals with tuition assurance requirements, and provides that the tuition assurance requirements are as set out in the Higher Education Provider Guidelines or, if the Guidelines do not set out such arrangements, as set out in paragraph 16-30(b). The Higher Education Provider Guidelines will be amended to set out revised tuition assurance requirements. Item 1 repeals section 16-30 and substitutes a new section which states that the tuition assurance requirements are that the body corporate [that has applied for approval as a higher education provider] complies with the requirements for tuition assurance set out in the Higher Education Provider Guidelines.
Section 36-20 deals with the amounts a higher education provider must pay to a student whose Student Learning Entitlement (SLE) has been re-credited. Item 2 makes a technical amendment as a consequence of the amendment made by item 3.
Item 3 adds proposed subsections 36-20(2) and (3). Proposed subsection 36-20(2) provides that subsection 36-20(1) does not apply to a provider if a person's Student Learning Entitlement was re credited under section 79-1 (main case of re crediting a person's SLE), and the person enrolled in the unit in circumstances that make it a replacement unit within the meaning of the tuition assurance requirements.
Proposed subsection 36-20(3) provides that the Higher Education Provider Guidelines may, in setting out the tuition assurance requirements, specify the amount (if any) that is to be paid to the person; the amount (if any) that is to be paid to the Commonwealth; and the person (if any) who is to pay the amounts, in relation to the re-crediting of a person's Student Learning Entitlement in circumstances to which subsection 36-20(2) applies.
Item 4 - After subsection 36-22(2)
Section 36-22 deals with repayment of amounts for units consisting wholly of work experience in industry, where there are special circumstances which prevent the student from completing the unit. Item 4 inserts proposed subsections 36-22(2A) and (2B). Proposed subsection 36-22(2A) provides that subsection 36-22(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.
Proposed subsection 36-22(2B) provides that the Higher Education Provider Guidelines may, in setting out the tuition assurance requirements, specify the amount (if any) that is to be paid to the person; the amount (if any) that is to be paid to the Commonwealth; and the person (if any) who is to pay the amounts, in relation to circumstances in which subsection 36-22(2A) applies.
Item 5 - At the end of section 36-22
Item 5 adds proposed subsection 36-22(9) which provides that if the provider is unable to act for one or more of the purposes of subsection 36-22(1), or subsections 36-22(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.
Item 6 inserts proposed section 36-22A which deals with higher education providers being required to repay amounts for units wholly consisting of work experience in industry, in circumstances where the provider ceases to provide a course.
Proposed section 36-22A provides that a higher education provider must, on the Secretary's behalf, determine that this section applies to a person if the following requirements are met:
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- the person has been enrolled as a Commonwealth supported student with the provider in a unit of study, and
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- the unit would, if completed, form part of a course of study undertaken with the provider; and
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- the unit wholly consists of work experience in industry; and
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- 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
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- the tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and
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- the person chose the option designated under the tuition assurance requirements as student contribution/fee repayment in relation to the unit.
Item 7 - After subsection 76-1(4) (before the notes)
Section 76-1 sets out the circumstances in which a person's SLE is reduced. Item 7 adds proposed subsection 76-1(5) which makes it clear that a person's SLE is not reduced if the unit is a 'replacement unit' within the meaning of the tuition assurance requirements.
Makes a technical amendment as a consequence of the amendment made by item 9.
Item 9 - At the end of section 79-1
Section 79-1 deals with when a higher education provider must re-credit a person's SLE on the Secretary's behalf. Item 9 adds proposed subsection 79-1(2) which provides that if a provider is unable to act for any one of more of the purposes of subsection 79-1(1), sections 79-5, 79-10 or 79-15, the Secretary may act as if one of more of the references in those provisions to the provider were a references to the Secretary.
Items 10 and 11 - Subsection 79-5(1) and paragraph 79-10(1)(a)
Items 10 and 11 make technical amendments to section and paragraph references as a result of the amendment made by item 9.
Item 12 - Subdivision 79-B (heading)
Repeals the existing heading in subdivision 79-B and inserts a new heading which refers to re-crediting a person's SLE if provider ceases to provide a course of which the unit forms part, as a consequence of the amendment made by item 14.
Makes a technical amendment as a result of the amendment made by item 14.
Section 79-20 deals with re-crediting a person's SLE if a provider is unable to provide a unit of study. Item 14 amends paragraph 79-20(b) to replace the reference to a higher education provider ceasing to be able to provide a unit with a reference to a higher education provider ceasing to provide a unit as a result of ceasing to provide the course of which the unit formed a part. This amendment recognises that a higher education provider may be able to provide a unit but may nevertheless cease to provide it, and changes this wording to ensure that the provisions of section 79-20 apply where the provider ceases to provide the unit.
Item 15 - After paragraph 79-20(b)
Inserts new paragraph 79-20(ba) which has the effect of providing that a higher education provider must (on the Secretary's behalf) re-credit a person's SLE if, amongst other requirements, the unit does not wholly consist of work experience in industry.
Amends paragraph 79-20(c) to refer to a higher education provider ceasing to provide a unit of study rather than ceasing to be able to provide a unit, as a consequence of the amendment made by item 14.
Item 17 - After paragraph 79-20(c)
Inserts proposed paragraph 79-20(d) which adds a requirement to the list in section 79-20, namely that the person chose the option designated under the tuition assurance requirements as student contribution / tuition fee repayment in relation to the unit.
1tem 18 - At the end of section 79-20
Adds proposed subsection 79-20(2) which provides that the Secretary may re-credit a person's SLE under subsection 79-20(1) if the provider is unable to do so.
Makes a technical amendment as a result of the amendment made by item 20.
Item 20 - At the end of section 79-25
Adds proposed subsection 79-25(2) which provides that the Secretary may re-credit a person's SLE under subsection 79-25(1) if the provider is unable to do so.
Item 21 - At the end of section 104-25
Section 104-25 deals with re-crediting a person's FEE-HELP balance. Item 21 adds proposed subsection 104-25(3) which provides that if a higher education provider is unable to act for one or more of the purposes of subsections 104-25(1) or (2), or sections 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, giving the Secretary the ability to re-credit a person's FEE-HELP balance in certain circumstances.
Item 22 - At the end of section 104-27
Section 104-27 deals with re-crediting a person's FEE-HELP balance where the person has no tax file number. Item 22 adds proposed subsection 104-27(3) which provides that the Secretary may re-credit the person's FEE HELP balance under subsections 104-27(1) or (2) if the provider or Open Universities Australia is unable to do so.
Makes a technical amendment as a result of the amendment made by item 27.
Section 104-42 deals with re-crediting a person's FEE-HELP balance if a higher education provider is unable to provide a unit of study. Item 24 amends paragraph 104-42(b) to replace the reference to a higher education provider ceasing to be able to provide a unit, with a reference to a higher education provider ceasing to provide a unit as a result of ceasing to provide the course of which the unit formed a part. This amendment recognises that a higher education provider may be able to provide a unit but may nevertheless cease to provide it, and changes this wording to ensure that the provisions of section 104-42 apply where the provider ceases to provide the unit.
Amends paragraph 104-42(c) to refer to a higher education provider ceasing to provide a unit of study rather than ceasing to be able to provide a unit, as a consequence of the amendment made by item 24.
Item 26 - After paragraph 104-42(c)
Inserts proposed paragraph 104-42(d) which adds a requirement to those set out in section 10442, namely that the person chose the option designated under the tuition assurance requirements as student contribution / tuition fee repayment in relation to the unit.
Item 27 - At the end of section 104-42
Inserts proposes subsection 104-42(2) which provides that the Secretary may re-credit the person's FEE-HELP balance under subsection 104-42(1) if the higher education provider is unable to do so.
Item 28 - After subsection 110-5(1)
Section 110-5 deals with the effect of a FEE-HELP balance being re-credited. Subsection 110-5(1) requires a higher education provider to repay to the Commonwealth an amount equal to the amount of FEE-HELP assistance to which a person was entitled if that person's FEE-HELP balance is re-credited.
Item 28 inserts proposed subsections 110-5(1A) and 110-5(1B). Proposed subsection 110-5(1A) provides that subsection 110-5(1) does not apply to a provider if the person's FEE-HELP balance was re-credited under subsection 104-25(1) (main case of re-crediting a person's FEEHELP balance), and the person enrolled in the unit in circumstances that make it a replacement unit within the meaning of the tuition assurance requirements.
Proposed subsection 110-5(1B) provides that the Higher Education Provider Guidelines may, in setting out the tuition assurance requirements, specify the amount (if any) that is to be paid to the Commonwealth; and the person (if any) who is to pay the amounts, in relation to the re crediting of a person's FEE-HELP balance in circumstances to which subsection 110-5(1A) applies.
Makes a technical amendment to include a reference to section 36-22A in subsection 137-5(5) as a consequence of the amendment made by item 6.
Item 30 - At the end of subsection 137-5(5)
Section 137-5 deals with HECS-HELP debts, including how debts are incurred. Subsection 137-5(5) deals with remission of HECS-HELP debts in circumstances where a person's debt relates to a unit of study that consists wholly of work experience in industry. Such a debt is taken to be remitted if section 36-22 or 36-23 applies to the person. Item 30 makes an amendment to this subsection which has the effect of providing that this is the case even if subsection 36-22(2A) applies to the provider in relation to the person.
Items 31 and 32 - Subsections 169-15(1) and (2)
Section 169-15 deals with higher education providers charging student contribution amounts and tuition fees. Subsection 169-15(1) sets out requirements to charge Commonwealth supported students student contribution amounts, while subsection 169-15(2) sets out requirements for non-Commonwealth supported students, who must be charged a tuition fee.
Item 31 inserts proposed subsection 169-15(1A) which provides that despite subsection 169-15(1), a higher education provider must not require a student who is enrolling in a unit which is a replacement unit within the meaning of the tuition assurance requirements, to pay the provider a student contribution amount for the unit.
Items 32 inserts proposed subsection 169-15(2A) which provides that, despite subsection 169-15(2), a higher education provider must not require a domestic student, who is enrolling in a unit which is a replacement unit within the meaning of the tuition assurance requirements, to pay the provider a tuition fee for the unit.
Item 33 - Subsection 169-15(3)
Subsection 169-15(3) requires a higher education provider to repay a person any payment of his or her student contribution amount or tuition fee made before the census date if the student is no longer enrolled in the unit at the end of the census date. Item 33 makes a technical amendment as a consequence of the amendment made by item 34. This provides that subsection 169-15(3) does not apply where subsection 169-15(4) applies.
Item 34 - At the end of section 169-15
Item 34 adds proposed subsection 169-15(4) which provides that subsection 169-15(3) does not apply if 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 the tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit, and the student chose the course assurance option in relation to the unit.
Item 35 - Section 206-1 (table items 1A, 1, 2, and 2A)
Section 206-1 sets out which decisions under the Act are subject to review, and who is the decision maker in respect of those decisions.
Item 35 replaces table item 1A [a decision that section 36-22 does not apply to a person]; item 1 [refusal to re-credit SLE under section 79-1]; item 2 [refusal to re-credit a person's FEE-HELP balance under subsection 104-25(1) and item 2A [refusal to re-credit a person's FEE-HELP balance under subsection 104-25(2)] and inserts new table items to make it clear that the decision maker for each of these decisions is the higher education provider with whom the student is enrolled in the unit, or if the Secretary has made the relevant decision, the Secretary.
Item 36 - Transitional provisions relating to name change for Open Universities Australia
Subitem 36(1) provides that this item applies if, at the time this Act receives the Royal Assent, the Higher Education Legislation Amendment (2005 Measures No. 3) Act 2005 has not received the Royal Assent.
Subitem 36(2) provides that the references in subsection 104-27(3) and table item 2A of section 206-1 of the Higher Education Support Act 2003 , as inserted by this Schedule , to "Open Universities Australia" are taken to be references to "Open Learning Australia", during the period beginning on the day after this Act receives the Royal Assent; and ending on the day the Higher Education Legislation Amendment (2005 Measures No. 3) Act 2005 receives the Royal Assent.
Subitem 36(3) provides that after the end of the period referred to in subitem 36(2), the references are taken always to have been references to "Open Universities Australia".
A note at the end of the item explains that Schedules 6 and 7 to the Higher Education Legislation Amendment (2005 Measures No. 3) Act 2005 change the name "Open Learning Australia" to "Open Universities Australia" with effect from 23 November 2004.