House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Education, Science and Training, the Honourable Dr Brendan Nelson MP)

Outline and financial impact

Outline

The Bill will amend the Higher Education Support Act 2003 (the Act) to:

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Insert a category of Table C providers to enable high quality foreign universities to be listed as overseas higher education providers, approved under the National Protocols for Higher Education Approval Processes by an authorised accreditation authority as listed in the Australian Qualifications Framework Register to establish an Australian branch and for that branch to have access to certain types of Commonwealth assistance [section 16-22]. Carnegie Mellon University is included as the first Table C provider.

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Specify the quality and accountability requirements that the Australian branch of an overseas provider in receipt of Commonwealth assistance must meet [Division 5].

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Specify which parts of the Act apply and do not apply to Table C providers [Division 5 and Parts 2-2; 2-3; 2-4; 2-5 and 3-2].

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Clarify that Table C providers have approval as a higher education provider from the time they are included in Table C [section 13-1, subsection 16-5(1)].

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Distinguish between listed providers and Table C providers [subsection 16-5(2)].

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Clarify that a body is not a Table C provider if its approval as a higher education provider is revoked or suspended [subsection 16-22(2)].

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Clarify that a higher education provider must comply with the regulations and the requirements of the Guidelines made under section 238-10 that apply to the provider [subsection 19-65(1)].

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Include a provision allowing the Minister, by legislative instrument, to make Guidelines for Overseas Higher Education Providers that would specify additional requirements or conditions applicable to Table C providers [subsection 238-10(1)].

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Clarify the meaning of an Australian branch of a Table C provider and the meaning of a Table C provider [Clause 1 of Schedule 1].

The Bill will also amend the Act in relation to tuition assurance arrangements for Higher Education Providers other than Table A providers. The aim of the amendments is to ensure that there is nothing in the Act that would prevent the tuition assurance requirements stipulated in the Higher Education Provider Guidelines from having effect. The amendments will clarify and strengthen the policy intent of the tuition assurance requirements as a consumer protection measure for students.

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The tuition assurance requirements will be expanded to cover situations where providers "cease to provide" units as a consequence of ceasing to provide the course of which the unit forms part (rather than only covering the situation where a provider ceases "to be able to" provide a unit) [sections 36-22A, 79-B, 79-20 and 104-42].

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The changes will give effect to the tuition assurance requirements, ie allow students to choose between "course assurance" (switching to a similar course at a second provider and receiving full credit for completed units) and "student contribution/tuition fee repayment" (receiving their money back for any uncompleted units).

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If the student chooses "course assurance", they can switch to a "replacement unit" to complete any unfinished units. If the student chooses course assurance, their SLE consumption and any HELP debt relating to the unfinished units continue to stand [paragraphs 79-20(d) and 104-42(d) and subsection 169-15(4)].

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If the student subsequently does not complete a "replacement unit" due to special circumstances and the student's SLE or FEE-HELP balance is re-credited, the provider of the replacement unit is not required to repay any amounts to the student or the Commonwealth, but the Guidelines may specify that another person for example, a third party guarantor or a tuition assurance scheme, is to pay the amounts specified in the Higher Education Provider Guidelines [sections 36-20, 36-22 and 110-5].

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If a student chooses "student contribution/tuition fee repayment", their SLE or FEE-HELP balance is re-credited [paragraphs 79-20(d), 104-42(d)], their HELP debt is remitted and the provider must repay amounts to the student and to the Commonwealth. A new obligation is imposed on providers who cease to provide work experience in industry units due to ceasing to provide a course of which the unit forms part. This obligation is to repay amounts to a student and to the Commonwealth if the student chooses the "student contribution/tuition fee repayment" option [section 36-22A]. The student's HELP debt is remitted as a consequence [subsection 137-5(5)].

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The provider's obligation to reduce SLE and to charge student contribution amounts and tuition fees is not to apply to providers of "replacement units" in the case of those replacement units [subsections 76-1(5), 169-15(1A)], 169-15(2A)].

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The provider's obligation to repay amounts for students who withdraw before the census date is also not to apply when students withdraw in circumstances covered by tuition assurance and choose "course assurance" [section 169-15].

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As a consequence of these changes, section 16-30 is amended to remove the Act's definition of tuition assurance requirements that would apply in the absence of guidelines. It can no longer work because the Act now includes concepts that must be given a meaning by the Higher Education Provider Guidelines.

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Separate from these changes is a change to clarify that the Secretary may act in cases where powers are conferred on providers "on the Secretary's behalf" [subsections 36-22(9), 36-22A(3), 79-1(2), 79-20(2), 79-25(2), 104-25(3), 104-27(3), 104-42(2)]. This gives rise to some consequential amendments of provisions relating to administrative review of the affected decisions [section 206-1].

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A transitional provision is included regarding the name change proposed in the Higher Education Legislation Amendment (2005 Measures No. 3) Bill 2005 from Open Learning Australia to Open Universities Australia.

The Bill also makes a number of technical amendments to the Higher Education Funding Act 1988, the Higher Education Support Act 2003 and the Higher Education Support (Transitional and Consequential Amendments) Act 2003 as a consequence of the commencement of the Legislative Instruments Act 2003 on 1 January 2005.

Financial impact

The estimated financial impact of providing Carnegie Mellon University postgraduate students with access to FEE-HELP is minimal. Over the forward estimates period (2005-06 to 2008-09) there is a negligible impact on the fiscal balance ($0.1 million), expenses amount to $0.7 million and headline cash is -$2.6 million. The costing is based on around 12 students taking out a FEEHELP loan in 2006, 23 in 2007, 35 in 2008 and 46 in 2009. This equates to around 60% of eligible students taking out a FEE-HELP loan each year.

Notes on clauses

Clause 1 - Short title

Provides for the Act to be cited as the Higher Education Legislation Amendment (2005 Measures No. 4) Act 2005.

Clause 2 - Commencement

Provides that the Act commences the day after it receives the Royal Assent.

Clause 3 - Schedule(s)

Provides that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule and that any other item in a Schedule has effect according to its terms.

Schedule 1 - Overseas higher education providers

Higher Education Support Act 2003

Item 1 - After Division 3

Item 1 inserts a new Division 5 in Chapter 1 of the Act to deal with the application of the Act to Table C providers.

Proposed section 5-1 includes a table setting out the provisions of the Act that apply to Table C providers. Proposed subsection 5-1(1) states that the provisions of the Act not listed in the table in subsection 5-1(2) or in subsection 5-1(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.

Proposed subsection 5-1(2) deals with provisions that are modified in their application to Table C providers. A table in this subsection sets out the provisions and the way in which they apply.

Table item 1 provides that Subdivision 19-C of the Act, which deals with quality requirements, applies to the Australian branch of a Table C 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.

Table items 2 and 3 provide that Subdivision 19-C (fairness requirements) and Subdivision 19-F (contribution and fee requirements) apply to the Australian branch of a Table C provider and to students undertaking or proposing to undertake unites of study at that branch.

Table item 4 indicates that Part 3-3 (FEE-HELP assistance) applies to eligible students of the Australian branch of a Tables C provider, but only for units of study in which the students are enrolled at the Australian branch.

Table item 5 provides that Part 3-4 (OS-HELP assistance) applies to eligible students of the Australian branch of the provider.

Table item 6 provides that Chapter 4 (Repayment of loans) applies to the Australian branch of the provider and to students undertaking, or students who undertook, units of study at that branch.

Table items 7 to 11 provides that Part 5-2 (Administrative requirements on higher education providers); Part 5-3 (Electronic communications); Part 5-4 (Protection of personal information); Part 5-5 (Tax file numbers) and Part 5-7 (Review of decisions) apply to the Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.

Proposed subsection 5-1(3) and 5-1(4) provide that Part 2-2 (Commonwealth Grant Scheme); Part 2-3 (Other Grants); Part 2-4 (Grants for Commonwealth scholarships); Part 2-5 (Reduction and repayment of grants) and Part 3-2 (HECS-HELP assistance) do not apply to a Table C provider, the Australian branch of the provider or to students in their capacity as students of that provider or of the Australian branch of that provider.

Item 2 - Section 13-1

Section 13-1 sets out what Part 2-1 of the Act is about and indicates that a body generally has to be approved as a higher education provider before it can receive grants, or its students can receive assistance under the Act. Listed providers (universities and certain self-accrediting providers) have that approval upon commencement of the Act. Bodies that do not have automatic approval, or whose approval has been revoked, have to apply for approval under the Act. Item 2 amends section 13-1 to make it clear that Table C providers have approval to operate as higher education providers under the Act from the time they are included in Table C.

Item 3 - After subsection 16-5(1)

Section 16-5 deals with when a body becomes or ceases to be a higher education provider. Item 3 inserts proposed subsection 16-5(1A) which provides that 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.

Items 4 and 5 - Paragraphs 16-5(2)(a) and (b)

Subsection 16-5(2) provides that a body corporate that is not a listed provider, or that is a listed provider that has previously ceased to be a higher education provider, becomes a provider if approved by the Minister under section 16-25. Paragraph 16-25(2)(b) provides that a higher education provider ceases to be a provider if its approval is revoked or suspended under Division 22.

Items 4 and 5 amend paragraphs 16-5(2)(a) and (b) to make it clear that a body corporate that is not a listed provider or a Table C provider, or 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.

Item 6 - After section 16-20

Section 16-20 sets out the Table B higher education providers. Item 6 inserts proposed section 16-22 which sets out Table C providers. The table included provides that Carnegie Mellon University, a non-profit organisation established under Pennsylvania law is a Table C provider.

Proposed subsection 16-22(2) provides that a body is not a Table C provider if its approval as a higher education provider is revoked or suspended. The note at the end of this proposed section makes it clear that a Table C provider is not entitled to receive a grant under Chapter 2 of the Act, as set out in section 5-1.

Item 7 - Subsection 19-65(1)

Section 19-65 sets out the basic compliance requirements that must be met by higher education providers. Item 7 amends subsection 19-65(1) to clarify that a higher education provider must comply with the requirements of the Act and the regulations, and the requirements of the Guidelines made under section 238-10 that apply to the provider.

Items 8 to 13 - sections 27-1, 41-1, 46-1, 51-1 and 87-1

Items 8, 9, 10, 11, and 13 add a note at the end of sections 27-1, 41-1, 46-1, 51-1 and 87-1 respectively to make it clear that Part 2-2 (Commonwealth Grant Scheme); Part 2-3 (Other Grants); Part 2-4 (Grants for Commonwealth scholarships); Part 2-5 (Reduction and repayment of grants) and Part 3-2 (HECS-HELP assistance) do not apply to a Table C provider.

Item 12 makes a technical amendment as a consequence of the amendment made by item 13.

Item 14 - After subsection 238-10(1)

Section 238-10 provides that the Minister may make guidelines specified in the table set out in that section for matters required or permitted or necessary or convenient to be provided to give effect to the relevant Chapter, Part or section of the Act. Item 14 inserts proposed subsection 238-10(1A) which provides that the Minister may, by legislative instrument, make the Guidelines for Overseas Higher Education Providers, specifying additional requirements or conditions applicable to Table C providers.

Item 15 - Clause 1 of Schedule 1

Clause 1 of Schedule 1 sets out definitions that apply to the Act. Item 15 insets a definition of Australian branch of a Table C provider, which means:

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if that provider conducts its higher education operations in Australia through a branch of the body corporate that is listed in Table C in section 16-23 - that branch; or

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otherwise-the body corporate through which that provider conducts its higher education operations in Australia.

Item 16 - Clause 1 of Schedule 1

Inserts a definition of Table C provider , which means a body listed in Table C in section 16-22.

Schedule 2 - Tuition assurance requirements

Higher Education Support Act 2003

Item 1 - Section 16-30

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.

Items 2 and 3 - Section 36-20

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 - After section 36-22

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.

Item 8 - Section 79-1

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.

Item 13 - Section 79-20

Makes a technical amendment as a result of the amendment made by item 14.

Item 14 - Paragraph 79-20(b)

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.

Item 16 - Paragraph 79-20(c)

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.

Item 19 - Section 79-25

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.

Item 23 - Section 104-42

Makes a technical amendment as a result of the amendment made by item 27.

Item 24 - Paragraph 104-42(b)

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.

Item 25 - Paragraph 104-42(c)

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.

Item 29 - Subsection 137-5(5)

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.

Schedule 3 - Technical amendments relating to legislative instruments

Schedule 3 makes a number of technical amendments to the Acts listed as a result of the commencement of the Legislative Instruments Act 2003 on 1 January 2005.

Higher Education Funding Act 1988

Items 1, 2 and 3 - Subsection 23(1E) (note); subsection 98AA(2) (note 2) and subsection 98Q(1) (note 2)

Makes technical amendments to subsections 23(1E), 98AA(2) and 98(Q) to change references to instruments being 'disallowable' under the Acts Interpretation Act 1901 to instruments being legislative instruments in accordance with the Legislative Instruments Act 2003.

Items 4 and 5 - Subsection 98S(1) (note 1 and note 2)

Item 4 repeals note 1 under subsection 98S(1) which provides that a determination made by the Minister must be in writing. Item 5 replaces note 2 to make it clear that a determination made under subsection 98S(1) is a legislative instrument under the Legislative Instruments Act 2003.

Item 6 - Section 110

Section 110 provides that a number of instruments made under various sections of the Act are disallowable instruments in accordance with the Acts Interpretation Act 1901. Item 6 amends section 110 to make it clear that the instruments are legislative instruments for the purposes of the Legislative Instruments Act 2003.

Higher Education Support Act 2003

Item 7 - Subsection 16-55(1)

Subsection 16-55(1) provides that a notice of approval of a body as a higher education provider under paragraph 16-50(1)(b) of the Act is a disallowable instrument for the purposes of the Acts Interpretation Act 1901. Item 7 replaces subsection 16-55(1) with a provision that makes it clear that such a notice is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Item 8 - Paragraph 16-55(2)(a)

Deletes a reference to subsection 48(4) of the Acts Interpretation Act 1901 and replaces it with a reference to subsection 42(1) of the Legislative Instruments Act 2003 as a consequence of the amendment made by item 7.

Item 9 - Subsection 22-35(1)

Subsection 22-35(1) provides that a notice of revocation of a body's status as a higher education provider under subsection 22-20(3) is a disallowable instrument. Item 9 amends this section to make it clear that such a notice is a legislative instrument under the Legislative Instruments Act 2003.

Item 10 - Paragraph 22-35(2)(a)

Deletes a reference to subsection 48(4) of the Acts Interpretation Act 1901 and replaces it with a reference to subsection 42(1) of the Legislative Instruments Act 2003 as a consequence of the amendment made by item 9.

Item 11 - Subsection 36-15(2)

Section 36-15 deals with when a higher education provider must not advise a person that he or she is a Commonwealth supported student. Subsection 36-15(2) allows the Minister to determine (by disallowable instrument) that a specified course of study is not one in which students may be enrolled as Commonwealth supported students. Item 11 amends this section to make it clear that such a determination by the Minister is a legislative instrument.

Item 12 - Subsection 36-15(5)

Repeals subsection 36-15(5) as a consequence of the amendment made by item 11.

Items 13 and 14- Subsections 41-50(1) and 41-50(2)

Subsection 41-50(1) provides that the Minister must prepare a list setting out the maximum amounts of all grants which may be paid for the purposes of grant set out in section 41-10 (Other Grants). Subsection 41-50(2) provides that the list is a disallowable instrument. Item 13 amends subsection 41-50(1) to make it clear that the list is a legislative instrument. Item 14 repeals subsection 41-50(2) as a consequence of the amendment made by item 13.

Items 15 and 16- Subsections 104-3(1) and 104-3(4)

Section 104-3 sets out the consequences of a failure by Open Learning Australia to comply with the FEE-HELP Guidelines. Subsection 104-3(1) allows the Minister to make a determination that there is no entitlement to FEE-HELP assistance for a specified year for units of study provided by Open Learning Australia. Subsection 104-3 provides that such a determination is a disallowable instrument. Item 15 amends subsection 104-3(1) to make it clear that a determination under that subsection is a legislative instrument and item 16 repeals subsection 104-3(4).

Items 17 and 18 - Subsections 104-10(2) and 104-10(5)

Section 104-10 sets out the course requirements for FEE-HELP assistance for a unit of study. Subsections 104-10(2) and 104(5) have the effect of allowing the Minister to make a determination by disallowable instrument that a specified course is one for which FEE-HELP assistance is unavailable. Item 17 amends subsection 104-10(2) to make it clear that such a determination is a legislative instrument and item 18 repeals subsection 104-10(5) as a consequence.

Items 19 and 20 - Subsections 238-10(1) and 238-10(2)

Section 238-10 allows the Minister to make, via disallowable instrument, guidelines dealing with a number of matters provided for in the Act. Item 19 amends subsection 238-10(1) to make it clear that guidelines are legislative instruments and item 20 repeals subsection 238-10(2) as a consequence of the amendment made by item 19.

Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003

Items 21 and 22 - Subitem 4(1) and 4(3) of Schedule 1

Subitems 4(1) and 4(3) of Schedule 1 provide that the Minister may, by disallowable instrument, make guidelines providing for matters required or permitted, or necessary or convenient to be provided in order to give effect to Schedule 1, including dealing with when a person is taken to have commenced or completed a course of study. Item 21 amends subitem 4(1) to make it clear that the guidelines are a legislative instrument and item 22 repeals subitem 4(3) as a consequence of the amendment made by item 21.

Items 23 and 24 - Subitems 8(1) and 8(3) of Schedule 1

Subitems 8(1) and 8(3) of Schedule 1 provide that the Minister may, by disallowable instrument, make guidelines providing for matters required or permitted, or necessary or convenient to be provided in order to give effect to Schedule 1, including dealing with when a person is taken to have commenced or completed a course of study. Item 23 amends subitem 4(1) to make it clear that the guidelines are a legislative instrument and item 24 repeals subitem 4(3) as a consequence of the amendment made by item 23.