Explanatory Memorandum
(Circulated by the authority of the Minister for Education, the Honourable Dan Tehan MP)Notes on Clauses
Clause 1 - Short title
Clause 1 provides for the Act to be the Higher Education Support Amendment (Cost Recovery) Act 2019.
Clause 2 - Commencement
The table in this clause specifies that parts of the Bill commence at the following times:
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- sections 1 to 3 and any matters not otherwise covered by the commencement table commence on the day the Bill, once enacted, receives the Royal Assent;
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- Part 1 of Schedule 1 commences on the 1 January 2020;
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- Part 2 of Schedule 1 commences at the same time as the Charges Bill commences. However, the provisions do not commence if the Charges Bill does not commence.
Clause 3 - Schedule(s)
Clause 3 provides that any legislation that is specified in a schedule to the Bill is amended or repealed as set out in the applicable items in the schedule concerned and any other item in a schedule has effect according to its terms.
Schedule 1 Amendments
Summary
Schedule 1 to the Bill implements an application fee on prospective FEE-HELP providers submitting an application for approval as a higher education provider under HESA. This will assist to fund the FEE-HELP provider application process including the costs of administering and assessing the applications from prospective providers seeking approval as a higher education provider under HESA.
Schedule 1 to the Bill also amends Division 19 of HESA to provide for the administration of the annual charge on higher education providers imposed under the Higher Education Support (Charges) Bill 2019.
Detailed explanation
Part 1 - Higher education provider application fee
Higher Education Support Act 2003
Item 1 - At the end of subsection 16-40(2)
Item 2 - At the end of subsection 16-40
Subsection 16-40(2) of HESA requires the application for approval as a higher education provider under HESA to be in a form approved by the Minister, and accompanied by information as the Minister requests.
Item 1 adds a new paragraph (c), to require that the application for approval as a higher education provider under HESA be accompanied by the fee which will be prescribed by, or worked out in accordance with the method prescribed by, the Higher Education Provider Guidelines. Item 2 inserts a new subsection 16-40(3) that provides that the application fee must not be such as to amount to taxation.
The purpose of this amendment is implement the application fee on registered higher education providers that apply for approval as a higher education provider to offer FEE-HELP.
Part 2 - Higher education provider charge
Higher Education Support Act 2003
Item 3 - After section 19-65
This item enables the Department of Education to administer the higher education provider charge imposed by the Charges Bill.
Item 3 inserts a new section 19-66 under Subdivision 19-E of HESA, which outlines the compliance requirements for higher education providers.
Proposed subsection 19-66(1) will require higher education providers to pay the higher education provider charge, and any penalty for late payment of the higher education provider charge, when it is due and payable. A failure by a higher education provider to pay the charge (or late payment penalty) will constitute a breach by the provider of the quality and accountability requirements of HESA, for which the Minister can take action under Division 22 of the Act.
Proposed subsection 19-66(2) provides the Higher Education Provider Guidelines may provide for all or any of the following matters:
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- the issuing of notices setting out the amount of higher education provider charge payable by a provider;
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- when higher education provider charge is due and payable;
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- the issuing of notices extending the time for payment of higher education provider charge;
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- penalties for late payment of higher education provider charge;
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- to whom higher education provider charge and any penalties for late payment are payable;
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- the refund, remittal or waiver of higher education provider charge or late payment penalty;
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- the review of decisions made under the Higher Education Provider Guidelines in relation to the collection or recovery of higher education provider charge;
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- any other matters relating to the collection and recovery of higher education provider charge.
Including these matters in the Higher Education Provider Guidelines provides greater flexibility in addressing changes to matters under proposed subsection 19-66(2), instead of pursuing amendments through primary legislation. In addition, administrative issues related to the higher education provider charge and application fee (i.e. the setting of the rate of a penalty for late payment, and right of review of decisions made in relation to the collection and recovery of the annual charge and application fee) are best addressed outside the Bill. This facilitates a more timely and efficient response to administrative changes for the cost recovery charges.
In addition, there is existing subordinate legislation (VET Student Loans Rules 2016) for the collection and recovery of the approved VET Student Loans course provider charge that provides for late payment penalty. This sets a precedent, which was used to guide the development of the Bill.
Therefore, delegated legislation is the appropriate mechanism for setting out matters referred to in the proposed subsection 19-66(2).
Although the Bill does not require the Higher Education Provider Guidelines to include review rights, they will be included in the Guidelines.
The higher education provider charge will commence from the 2020 calendar year and will be collected from providers yearly 'in arrears' with providers invoiced 'in arrears' for the charge after providers' student enrolments data for the calendar year has been verified (often occurs around mid-May the following year). Higher education providers will have 30 days from the date of the issued invoice to pay the higher education provider charge, and penalties may apply for late payments. For the 2020 calendar year, providers will receive the invoice for the charge in 2021.
Item 4 - Subclause 1(1) of Schedule 1
This item inserts the definition for higher education provider charge in the Dictionary under subclause 1(1) of Schedule 1 in HESA.