House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Education and Training, Senator the Hon Simon Birmingham)

OUTLINE

Overview of the Bill

Vocational education and training (VET) is central to Australia's economic growth, business opportunities and employment outcomes for students. Income contingent loans support Australians to access higher level VET qualifications.

Although there are many benefits to income contingent loans, it is clear the VET FEE-HELP loan scheme needs urgent reform. Following the expansion of the scheme in 2012, the scheme has experienced unsustainable growth, unscrupulous provider behaviour and poor student outcomes. It has left many students with large debts and in some cases, little to no training outcomes. Left unchanged, these policy settings and behaviours will continue to damage the reputation of Australia's quality VET sector.

The purpose of the VET Student Loans Bill 2016 (the Bill) is to replace the VET FEE-HELP loan scheme from 1 January 2017 and introduce a vastly improved student loan program for vocational education and training. The Bill forms part of a package of legislation. The other Bills in the package are the VET Student Loans (Consequential Amendments and Transitional Provisions) Bill 2016 (Consequential and Transitional Bill) and the VET Student Loans (Charges) Bill 2016 (Charges Bill).

The Bill will introduce a new student loans program that will include a range of measures to protect students and taxpayers and the reputation of vocational education and training in Australia. It will improve affordability, maximise employment outcomes for students, prioritise loans to skills needs and ensure fiscal sustainability for the Commonwealth. It does this by:

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linking loans to courses that meet industry needs and skills shortages and improving the quality of the course delivery by only enabling providers to subcontract training to other approved course providers or higher education providers;

•

introducing loan caps for eligible courses with the initial loan caps to be $5000, $10,000 and $15,000 with the ability of the Minister to exempt courses with high delivery costs;

•

strengthening compliance, governance and payment arrangements including by triggering relevant regulatory powers from the Regulatory Powers (Standard Provisions) Act 2014. The Bill will enable the Commonwealth to immediately suspend a provider in urgent circumstances and also withhold loan amount payments to providers if it is suspected on reasonable grounds the provider is not complying with the Bill;

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expanding on the existing student protections by banning brokers or agents from engaging or recruiting students in relation to loans, prohibiting contact with students regarding the availability of loans unless the student has expressly consented to contact by the particular provider and broadening the circumstances for which student loans may be re-credited;

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raising the bar for entry by providers to the program to ensure providers have robust governance and management arrangements and maintain acceptable student outcomes and industry links (by way of example);

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introducing an application fee for bodies to apply to become approved course providers and, through the accompanying Charges Bill, imposing an annual levy on providers;

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requiring all existing VET FEE-HELP providers to have to apply to be approved under the new program. The Consequential and Transitional Bill will provide for some existing approved VET FEE-HELP providers (such as TAFEs) to be exempt from this re-application process, however all providers, including public providers, will need to meet the higher quality benchmarks to remain in the scheme.

Loans to students

The Bill will reframe the relationship between the student, the approved provider and the Commonwealth. Student loans will be approved by the Commonwealth but only if the student is eligible and it is for a course that is an approved course. Flexibility is given to the Commonwealth as to when loan payments may be made, enabling payments to be spread across the duration of a course. The Bill also provides the Commonwealth with the discretion not to pay a loan if, for example, it is satisfied a student is non-genuine or where it is suspected the approved provider is not complying with the conditions on its approval or the provisions in the Bill.

The Bill will retain the current academic suitability requirement to ensure loans are only approved for those students assessed as being academically suited to undertake the approved course. The Bill strengthens these measures by introducing a penalty that will apply to any provider that completes, or assists with completing, anything the student is required to do for the purposes of determining whether the student is academically suited.

A student's application for a VET student loan will have to meet the requirements in the Bill and the associated Rules. From 1 July 2017, a student engagement and progression requirement for continued access to the loan is expected to apply. Students will be required to log in periodically to confirm active and legitimate enrolment in the course. This provides greater protection for students by shifting the ability to access the loan away from the approved provider to the student. It does this by removing the provider's ability to re-enrol failing and absent students without their knowledge. The Commonwealth will have the discretion not to pay loan amounts if the student is not genuine.

The Bill authorises the collection of a VET student identifier as a condition of a student's eligibility for a loan. The student identifier is a lifelong unique number for all students undertaking nationally recognised training, unless exempt. Student identifiers can be created easily by the students themselves or, with permission, by a registered training organisation. The collection of a VET student identifier as a requirement for access to loans will enhance the integrity of VET student loans and improve program performance assessment and policy development.

The Bill retains the existing student repayment measures in the Higher Education Support Act 2003 (the HESA) to maintain repayment consistency with the rest of the Commonwealth's Higher Education Loan Program (HELP) loans. The current lifetime loan limit, repayment thresholds and rates, and the loan fee will continue to apply to VET student loans.

Approved courses

The Bill will establish a new framework to limit course eligibility for VET student loans to those courses approved by the Minister through a courses and loan caps determination. The focus will be on courses that have a high national priority, align with industry needs, contribute to addressing skills shortages and lead to employment outcomes.

The Bill enables the introduction of maximum loan amounts for eligible courses through the same courses and loan caps determination referred to above. Using this determination, the Commonwealth proposes the initial maximum loan caps to be set at $5000, $10,000 and $15,000, with the ability for the Minister to index and amend the caps, introduce new caps and to specify which courses fall under which band. For example, exceptions may need to be made to the cap amounts for courses that meet critical needs or are of national priority but have high delivery costs.

The Bill will also impose other course provision and delivery requirements to protect students including new limitations on third party training delivery. Approved providers may only subcontract training to other approved VET student loans providers or higher education providers accredited by the Tertiary Education Quality and Standards Agency (TEQSA). This ensures student training is subject to quality and regulatory scrutiny. Individual subcontractors delivering a subject that cannot otherwise be delivered by the provider may be approved on a case by case basis.

Approved course providers

The Bill will impose stronger eligibility requirements to qualify as an approved course provider under the VET student loan program. All existing VET FEE-HELP providers will have to apply to be approved under the new program. The Consequential and Transitional Bill will provide for certain bodies (such as TAFEs) to be exempt from the re-application process.

Providers will need to meet the new course provider requirements to be eligible to be approved as an approved course provider. Critically, providers must continue to meet these requirements for the duration of their approval. The requirements include having to be a 'fit and proper' person and having to satisfy the provider suitability requirements. The details of these requirements may be specified in the Rules. These will include new requirements regarding: student outcomes (eg completion rates), industry links, experience in providing vocational education, financial performance, strong management and governance, as well as having regard to the provider's course scope, tuition fees and modes of course delivery.

It will continue to be a requirement for approval that a provider be a party to a tuition assurance arrangement. The details of these arrangements will be provided for in the Rules. However, the Bill provides greater protection to students in the event of a provider ceasing to provide a course, by imposing obligations on the organisation that has agreed to provide the tuition assurance.

It is anticipated applications for provider approvals will be considered only on an annual basis. An application fee will now apply. The Charges Bill will also impose an annual charge on each provider as a tax. The Secretary will have the power to impose conditions on a provider's approval, for example, this may include capping the student loan amounts that may be paid to the provider. The Bill also introduces a limit on the duration of a provider's approval - a maximum of 7 years; thereafter the provider will have to apply again. Seven years aligns with the maximum length of registration as a registered training organisation under the National Vocational Education and Training Regulation Act 2011 and as a higher education provider under the Tertiary Education Quality and Standards Agency Act 2011.

The Bill strengthens the Commonwealth's ability to take action against those providers suspected of non-compliance and poor performance. A provider's approval may be suspended or revoked if the provider is not complying with its obligations under the Bill. Importantly, the Secretary may immediately suspend a provider's approval if the Secretary considers the circumstances warrant urgent action. Compliance action against a provider will continue to include tools such as compliance notices and audit requirements. However, failure to comply with a compliance notice will now be a penalty and a penalty will also apply if a provider fails to cooperate with an auditor or persons involved in the administration of the VET student loans program.

The Bill also expands the circumstances in which student debts can be remitted and explicitly prevents providers from pursuing outstanding debts from students where their loans have been cancelled. In circumstances where there has been unacceptable conduct by a provider, or if the provider's non-compliance has adversely affected the student, or if it is shown that the student is not eligible or not genuine, the Secretary has the discretion to re-credit the student's FEE-HELP balance without the student having to apply. In all cases, the Bill provides for the provider to pay to the Commonwealth the amount re-credited to the student.

Rules for approved course providers

The Bill will mirror and retain many of the important student protection reforms to the VET FEE-HELP scheme introduced through the Higher Education Support (VET FEE-HELP Reform) Amendment Act 2015, with a framework in the Bill to support detailed requirements in the Rules. This includes the measures such as the ban on prohibited inducements and cold-calling, the requirement to have a parent or guardian's signature for students under the age of eighteen, and enforcement provisions.

The Bill introduces a new ban on providers using brokers or agents to interact or engage with students in relation to VET student loans. This includes prohibiting brokers and agents from: enrolling students in courses for which the tuition fees will be covered by student loans, assisting students to complete applications for student loans or providing information or advice to students in relation to the VET student loans.

Providers will be required to meet the ongoing information requirements to be specified in the Rules, retain any documents or information as required by the Rules (for example, student records) and provide students with certain prescribed information. The Secretary will have the power to require both providers, as well as other persons, to produce information or documents that relate to compliance with the Bill.

The Bill will require providers to determine tuition fees in accordance with the Rules. This measure will continue to enable the Commonwealth to ensure fees are spread across the duration of a course. The fees must be published. Importantly, a provider cannot require a student to pay for tuition fees that are to be covered by a VET student loan. The Bill will retain the existing rules in relation to census days.

Regulatory powers

The Bill will provide for an enhanced compliance and regulatory framework by triggering all the powers under the Regulatory Powers (Standard Provisions) Act 2014. This includes monitoring and investigation powers and enforcement provisions such as civil penalties, infringement notices, enforceable undertakings and injunctions. The Bill expands the monitoring provisions by applying them to all of the Bill and not just the civil penalty provisions (as is the current position). Civil penalties will apply to more contraventions and the amounts of the penalties will, in many instances, increase to be more commensurate with the nature of the contravention. Enforceable undertakings and injunctions are both new enforcement tools. Importantly, the Bill will impose personal liability on executive officers of providers in relation to contravention of civil penalty provisions or the commission of any offences.

The Bill continues to regulate the management of information, ensuring the integrity of the VET information but at the same time enabling the use and disclosure of this information to support the effective and efficient administration of the Bill.

The Bill will also clarify and enhance the role of the National VET Regulator (that is, the Australian Skills Quality Authority) in ensuring compliance with the VET student loans program, including by empowering it to conduct compliance audits, to monitor and investigate compliance with the Bill, and to issue infringement notices under the Bill.

Consultation

In April 2016, the then Minister for Vocational Education and Skills, Senator the Hon Scott Ryan, hosted a series of face-to-face consultations in Perth, Adelaide, Melbourne, Sydney, Brisbane and Cairns. The intent of the consultations was to inform the content of a VET FEE-HELP discussion paper. A total 176 VET providers as well as a number of peak body organisations attended the consultations.

Subsequently, the 'Redesigning VET FEE-HELP discussion paper' was publicly released on 29 April 2016. 121 submissions were received, with the submissions and the Department of Education and Training's research informing the development of the final design of the new program.

Following the release of the discussion paper, departmental officials held teleconferences with state and territory officials. States and territories and employer groups have called for significant reform to protect the integrity of Australia's high quality training system and to ensure the system is delivering the skills needed for work.

The Attorney-General's Department, the Department of the Prime Minister and Cabinet, the Department of Finance, the Department of the Treasury, the Department of Social Services, the Department of Employment, VET providers, industry representatives, state and territory government officials, student and consumer protection advocates and the broader public have been consulted in relation to the development of the VET student loans program.

FINANCIAL IMPACT STATEMENT

These measures will reduce the value of new student loans being issued by more than $2.4 billion per annum by the end of the forward estimates in 2019-20. This will in turn lead to an estimated reduction in otherwise total outstanding HELP debt of more than $7 billion by June 2020 and by more than $25 billion by June 2026.

In underlying cash, the measures for the VET student loans program will cost $13 million over the forward estimates (administered funding). This is due to less interest and loan fee receipts received as a result of the reduced value of loans issued. In fiscal balance terms, the measures will save $13 million over the forward estimates due to reduced concessional loan costs.

The measure, including administered and departmental funding, will have the following impact on underlying cash over the forward estimates:

REGULATION IMPACT STATEMENT

The Regulation Impact Statement for the VET FEE-HELP Redesign forms part of this Explanatory Memorandum.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

VET STUDENT LOANS BILL 2016

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

Vocational education and training (VET) is central to Australia's economic growth, business opportunities and employment outcomes for students. Income contingent loans support Australians to access higher level VET qualifications.

Although there are many benefits to income contingent loans, it is clear the VET FEE-HELP loan scheme needs urgent reform. Following the expansion of the scheme in 2012, the scheme has experienced unsustainable growth, unscrupulous provider behaviour and poor student outcomes. It has left many students with large debts and in some cases, little to no training outcome. Left unchanged, these policy settings and behaviours will continue to damage the reputation of Australia's quality VET sector.

The purpose of the VET Student Loans Bill 2016 (the Bill) is to replace the VET FEE-HELP loan scheme from 1 January 2017 and introduce a vastly improved student loan program for vocational education and training. The Bill forms part of a package of legislation. The other Bills in the package are the VET Student Loans (Consequential Amendments and Transitional Provisions) Bill 2016 (Consequential and Transitional Bill) and the VET Student Loans (Charges) Bill 2016 (Charges Bill).

The Bill will introduce a new student loans program that will include a range of measures to protect students and taxpayers and the reputation of vocational education and training in Australia. It will improve affordability, maximise employment outcomes for students, prioritise loans to skills needs and ensure fiscal sustainability for the Commonwealth. It does this by:

•

linking loans to courses that meet industry needs and skills shortages and improving the quality of the course delivery by only enabling providers to subcontract training to other approved course providers or higher education providers;

•

introducing loan caps for eligible courses with the initial loan caps to be $5000, $10,000 and $15,000 with the ability of the Minister to exempt courses with high delivery costs;

•

strengthening compliance, governance and payment arrangements including by triggering relevant regulatory powers from the Regulatory Powers (Standard Provisions) Act 2014. The Bill will enable the Commonwealth to immediately suspend a provider in urgent circumstances and also withhold loan amount payments to providers if it is suspected on reasonable grounds the provider is not complying with the Bill;

•

expanding on the existing student protections by banning brokers or agents from engaging or recruiting students in relation to loans, prohibiting contact with students regarding the availability of loans unless the student has expressly consented to contact by the particular provider and broadening the circumstances for which student loans may be re-credited;

•

raising the bar for entry by providers to the program to ensure providers have robust governance and management arrangements and maintain acceptable student outcomes and industry links (by way of example);

•

introducing an application fee for bodies to apply to become approved course providers and, through the accompanying Charges Bill, imposing an annual levy on providers;

•

requiring all existing VET FEE-HELP providers to have to apply to be approved under the new program. The Consequential and Transitional Bill will provide for some existing approved VET FEE-HELP providers (such as TAFEs) to be exempt from this re-application process, however all providers, including public providers, will need to meet the higher quality benchmarks to remain in the scheme.

Human Rights Implications

The Bill engages the following human rights:

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the right to work - Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

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the right to education - Article 13 of the ICESCR

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the right to privacy - Article 17 of the International Covenant on Civil and Political Rights (ICCPR)

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the right to a fair and public hearing - Article 14 of the ICCPR

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the right to be presumed innocent - Article 14 of the ICCPR

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the rights of the child - Article 3 of the Convention of the Rights of the Child (CRC)

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the rights of people with disabilities - Article 10 of the Declaration on the Rights of Disabled Persons.

As the Bill also triggers Parts 2 to 7 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act), this Statement of Compatibility with Human Rights also considers the human rights impact of the Regulatory Powers Act in conjunction with the Bill.

Right to Work

This Bill engages the right to work which is set out in Article 6 of the ICESCR.

Under Article 6(1) State Parties are required to recognise the right to work, which includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. Article 6(2) provides that the steps to be taken by a State Party to achieve the full realisation of this right include providing technical and vocational guidance and training programs.

This right is engaged by virtue of an objective of the Bill, which is to ensure loans to students are provided for vocational education and training that meets workplace needs and improves employment outcomes. The measures introduced by the Bill are reasonable and proportionate to systemic problems encountered in the VET FEE-HELP scheme.

This right is limited in that the Bill introduces some measures which may make it more difficult for some prospective students to access the VET student loan program. Such measures include requiring students to be genuine students, strengthening the academic suitability provisions and lifting the bar for providers to be approved in the new program. However, these measures represent a reasonable and proportionate limitation on the right, as they protect vulnerable people from being enrolled in VET courses and being imposed with a FEE-HELP debt where they are not in a position to undertake and complete the VET course.

By enabling the Minister to make a loans and caps determination, this Bill also establishes a new framework to limit course eligibility for VET student loans to those courses approved by the Minister and introduces maximum loan amounts for eligible courses. While this measure may limit the right by limiting the scope of VET courses students might otherwise undertake and the amount of loans available, reform is justified as it ensures that the focus of the VET student loans program will be to provide support for students in respect to courses that have a high national priority, align with industry needs, contribute to addressing skills shortages and lead to employment outcomes.

This Bill is compatible with the right to work.

Right to Education

The Bill engages the right to education which is set out in Article 13 of the ICESCR. Article 13 recognises the important personal, societal, economic and intellectual benefits of education.

Article 13 provides that secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means. The intent of the Bill is to make technical and vocational secondary education more accessible to students who may not otherwise have had access and to undertake systemic improvements to the quality of the training by ensuring greater regulatory oversight and accountability of approved course providers within the marketplace. These measures engage and promote the right to education as they are designed to improve affordability of vocational education and training, maximise educational outcomes and prioritise student loans to accord with skills need and ensure overall fiscal sustainability for the Commonwealth to effectively regulate the sector.

The Bill retains the measure introduced in the Higher Education Support (VET FEE-HELP) Amendment Act 2015 (Reform Act) to require providers to develop and apply appropriate student entry procedure requirements to ensure that a student is properly assessed as being academically suitable for a course, before being admitted to enrol. Whilst this measure may potentially limit a student's ability to access education in an approved course, the limitation is a reasonable and proportionate response directed to protecting vulnerable students who do not have the academic ability to undertake a course from being burdened with a significant debt with limited or no educational or training outcome.

The Bill also retains a number of measures introduced in the Reform Act to enhance the integrity of the program and strengthen the protection of students as they seek out educational opportunities within Australia. For instance, the Bill retains an infringement notice scheme attached to civil penalties. It also continues to prohibit providers from offering inappropriate benefits to induce a student to apply for a student loan for a course or cold-calling students about the availability of student loans. It introduces a ban on the use of brokers by providers to recruit students who use a VET student loan to pay for their tuition. These measures will further protect students from unscrupulous behaviour and make education and training providers more accountable for their recruitment and enrolment practices.

The Bill also contains measures which broaden the circumstances in which a student can seek re-credit of their FEE-HELP loan debt balances and remission of a debt. The circumstances include if the student is not an eligible or genuine student, the student does not have a tax file number or student identifier, or if the provider has failed to comply with the Bill and the failure has adversely affected the student. Re-crediting will continue to be available in special circumstances and if there has been unacceptable behaviour by a VET provider at the time of the student's application for a loan. These measures increase protections available to students, which is consistent with and promotes the right to education.

The Bill also introduces new measures around the outsourcing of training to third party providers. It limits third party delivery to providers that are either approved course providers or accredited by TEQSA, the national regulator of the higher education sector. This ensures students have access to quality training delivered by training providers that are comparable (in quality) to their primary course provider. This ensures a high level of quality assurance and regulatory oversight of training for students.

To the extent that the new courses and loan caps determination may limit students access to particular courses and confine course choice, this is justifiable to ensure fiscal accountability and quality output from providers. Although this measure limits the loan amount available to the student, the intent of the measure is to put downward pressure on rising tuition fees to make education more affordable to students. The limit on courses eligible for loan access will ensure students are undertaking courses that are more likely to result in an employment outcome. These limitations are necessary and proportionate to the policy objective as the measures are designed to protect students by enhancing educational and employment outcomes, ensuring they are receiving value for money, and that there is a high level of quality assurance and transparency in the training courses by ensuring all providers are suitably experienced and have met statutory suitability requirements in order to operate as approved course providers.

In addition, more robust registration and performance requirements will be introduced in respect of providers seeking approval under the VET student loans program. This is intended to enhance the integrity of the program by ensuring that providers are properly scrutinised to ensure they have experience in providing VET, satisfy financial requirements, meet governance and management standards and that students obtain value and quality outcomes for their investment in education and training. The Bill will also further enhance the Commonwealth's power to redress unscrupulous behaviours on the part of course providers by expanding regulatory powers and making it easier to freeze payments to providers who would do the wrong thing. These measures are intended to better protect students whilst they are undertaking educational opportunities.

This Bill is compatible with and promotes the right to education.

Right to Privacy

The Bill engages the right to privacy which is set out in Article 17 of the ICCPR. Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour and reputation.

The Bill includes measures to allow for the use and disclosure of VET information (which may include personal information). Many of these provisions replicate existing provisions in the Higher Education Support Act 2003 (HESA). This Bill extends these measures by:

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enabling the sharing of VET information by tuition assurance scheme operators with other VET officers if the officers reasonably believe the disclosure is reasonably necessary for the purposes of exercising powers, or performing functions or duties in relation to this Bill;

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including the Australian Competition and Consumer Commission (ACCC) as an agency that the Secretary may disclose VET information to if the Secretary reasonably believes the information will enable or assist the ACCC to exercise its powers, or perform its functions or duties;

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enabling the Secretary to disclose VET information to an enforcement body (as defined in the Privacy Act 1988) or to a Department, agency or authority of the Commonwealth, a State or Territory, if the Secretary believes on reasonable grounds that the disclosure of the information is necessary for an enforcement related activity (as defined in the Privacy Act 1988).

These disclosure rights are important to ensure the integrity of the VET student loans program, including ensuring eligibility requirements of students are met. This is particularly important where students are accessing income support and to check citizenship status. The disclosures will allow the Commonwealth to check the veracity of student enrolments and consequently the expenditure of Commonwealth monies.

The disclosures are also important to enable tuition assurance scheme operators to have access to up to date and accurate information so that they can support students in the event a provider ceases to provide a course and so ensure the integrity of the tuition assurance arrangement.

The power to disclosure VET information to enforcement agencies is also critically important to assist with ensuring an approved course provider's compliance with the program and the subsequent protection of students. Compliance action taken against less scrupulous providers assists with protecting a student's rights and may enable the re-crediting of a student's FEE-HELP debt in certain circumstances.

The right to privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. In this case, the legitimate end is the protection of students, the efficacy of educational outcomes and the accountability of providers.

Disclosure will not be arbitrary and will in each case be reasonable, necessary and proportionate to the objective of providing loan support to those eligible and engaged in training. As such, the limitation is proportionate because the measures are precisely directed to the legitimate aim being pursued.

For example, to the extent that the measures in the Bill limit a person's right to privacy with regard to sharing information with Commonwealth agencies for the purposes of their programs and in respect to the collection of the unique student identifier (USI) (unless exempt), this is a reasonable and proportionate limitation because sharing this information is ultimately for the purposes of ensuring the veracity of the student's enrolment and protecting the student from potential accumulation of debt without their knowledge. The collection of USI information also improves program performance assessment and future policy development as it will allow for the analysis of performance and student outcomes for approved course providers or VET courses of study, allowing for reforms where necessary or redirection of Commonwealth funding into, or away from, areas which are not working (as the case may be). This disclosure is intended to prevent the misuse of Commonwealth monies and protect the broader reputation of the VET sector in Australia.

It is notable that the Bill provides that approved course providers must comply with the Australian Privacy Principles (APPs), as set out in Schedule 1 of the Privacy Act 1988, in relation to personal information obtained for the purposes of the Bill.

The Bill also contains measures which provide Departmental investigators and National Vocational Education and Training Regulator investigators with monitoring and investigation powers. The Bill only enables investigators with requisite knowledge or experience to be appointed. The investigative and monitoring powers are reasonable, necessary and proportionate to achieve the legitimate objective of ensuring provider compliance, maintaining the integrity, and ensuring the fiscal accountability, of the Australian VET marketplace.

The Bill protects against arbitrary abuses of these powers by invoking the provisions of the Regulatory Powers Act. This Act contains information gathering powers which are conditional upon provisions of that Act being met, such as, in certain circumstances, the requirement to obtain a warrant or to obtain the consent of an occupier prior to entry of premises. It also provides for a narrow scope of who is an authorised person and what is a relevant court. Adequate safeguards and limitations on the use of regulatory powers ensure that such lawful interferences are not arbitrary or at risk of abuse.

The Bill provides corresponding protection to students' right to privacy by ensuring providers are no longer able to liaise directly with the Commissioner of Taxation regarding a student's tax file number. Verification of numbers may only occur between the Commissioner and the Secretary.

The Bill is compatible with the right to privacy. To the extent the right is limited, the limitation is reasonable and proportionate.

Right to a Fair and Public Hearing

Article 14 of the ICCPR ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The Bill engages the right to a fair and public hearing including through incorporation of an infringement notice scheme. An infringement notice can be issued by an infringement officer for contraventions of an offence provision or a civil penalty provision of the Bill. The Bill triggers Part 5 of the Regulatory Powers Act, which creates a framework for using infringement notices in relation to provisions in the Bill and attendant safeguards.

Moreover, the right of a person to a fair and public hearing by a competent, independent and impartial tribunal is preserved by the Bill as its provisions invoke the powers in the Regulatory Powers Act which allow a person to elect to have the matter heard by a court rather than pay the amount specified in the notice.

The provisions of the Regulatory Powers Act which are invoked also specify requirements for what must be included in an infringement notice, ensuring that a person issued with an infringement notice is aware of the person's right to have the matter heard by a court. Other invoked Regulatory Powers Act provisions regarding limiting the operation of questioning powers include protections which guarantee the fair trial rights protected in Articles 14(3)(d) and (g) of the ICCPR.

The Bill also invokes the provisions of Part 4 of the Regulatory Powers Act for the enforcement of civil penalty provisions. The civil penalties allow for the punishment of course provider misconduct without the need to impose criminal liability. The magnitude of the civil penalties imposed is such that they are sufficient to act as a deterrent, although not carrying the stigma of a criminal conviction.

The Bill replicates offences provisions in HESA in relation to the misuse of or inappropriate disclosure of VET information which attracts a penalty of 2 years imprisonment. This is justified by the serious nature of such a contravention and the impact on persons through having their personal information misused or inappropriately disclosed. The offence provisions contain appropriate exceptions to allow for lawful use and disclosure so that persons lawfully using and disclosing the information will not be penalised unfairly under the provisions.

The Bill also introduces new strict liability offences in relation to the obligation to giving and retaining certain information under the Bill (such as providing information to students, retaining information and documents, complying with ongoing information requirements and requests for information by the Secretary). Information under the relevant provisions is necessary to ensure the integrity of the program and to support monitoring and compliance activities. Having these offences as strict liability is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

The Bill is compatible with the right to a fair and public hearing.

Right to be Presumed Innocent

Article 14 of the ICCPR requires that in the determination of any criminal charge, everyone shall be entitled to a set of minimum guarantees and that anyone convicted will have the right to review and compensation if the conviction is not upheld. Article 14 of the ICCPR also requires that anyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law.

The Bill triggers the regulatory powers contained in the Regulatory Powers Act. This approach allows for a streamlined and consistent approach with other Commonwealth legislation in respect to regulatory powers. Further, in triggering the Regulatory Powers Act, the intention is to also establish consistency from a human rights perspective with a whole of Government approach to civil enforcement mechanisms.

Parts 2 (monitoring powers), 3 (investigation powers), 4 (civil penalties) and 5 (infringement notices) of the Regulatory Powers Act were previously triggered in relation to the VET FEE-HELP scheme under the Reform Act. This Bill retains these measures and further triggers Part 6 (enforceable undertakings) and Part 7 (injunctions). The monitoring powers in the Bill are extended to apply to all provisions in the Bill and not just the civil penalty provisions. These powers are part of a multi-pronged approach to ensure the integrity of the VET student loan program and protect the program and students against inappropriate conduct by providers.

Each of the regulatory powers triggered by the Bill are limited appropriately, by ensuring a narrow scope of who is an authorised person, who is an authorised applicant, who may be appointed as an investigator and what is a relevant court, ensuring that the powers will only be used in appropriate circumstances.

Triggering of the civil penalty and infringement provisions in the Regulatory Powers Act is compatible with the right to liberty and security of the person and freedom from subjection to arbitrary arrest or detention, as set out in Article 9 of the ICCPR.

Moreover, the serious nature of some of the civil penalty and offence provisions justifies the existence of these powers and their exercise from time to time. The monitoring and investigation powers are also intended to be subject to the implied privilege against self-incrimination at common law.

There are also strict liability offences that apply to factual scenarios, including in relation to giving information to students, retaining information and documents and complying with ongoing information requirements and requests for information from the Secretary. These offences are proportionate to the value of maintaining adequate safeguards in relation to the large sums of public money involved in administering the VET student loan program. It is considered reasonable in these cases to impose strict liability offences to ensure the integrity of the scheme and to allow for access for appropriate information to undertake monitoring and compliance activities. Each of these offences is subject to the infringement notice scheme. Having these offences as strict liability is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

The Bill also provides for personal liability of the executive officers of providers where the provider commits an offence or contravenes a civil penalty provision. However, this liability will only arise if the officer knew the offence or contravention would be committed or occur, the officer was in a position to influence the conduct of the provider and failed to take all reasonable steps to prevent the commission of the offence or the contravention.

Establishing a strong civil enforcement regime also protects the integrity of the program to ensure providers provide quality education and training, and that students obtain value and quality outcomes for their investment in education and training.

Rights of the Child

The Bill engages and promotes the rights of the child which are provided for in Article 3 of the CRC. Article 3 provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The Bill will retain a measure from the Reform Act that where there is a responsible parent of a person who is under 18, that person is required to be an additional signatory on an application for a loan. The additional signature is not required where the person has been separately assessed as independent and capable of managing their own affairs - the Bill provides that where a person is receiving, or has received, youth allowance (within the meaning of the Social Security Act 1991) on the basis that the person is independent (within the meaning of Part 2.11 of that Act), the additional signatory is not required. Retaining this measure does not exclude a person from the loan program; it simply puts in place protections to ensure minors are not exploited by unscrupulous providers for economic gain.

The Bill further protects vulnerable students by requiring students to be assessed by a course provider as academically suitable to undertake the course concerned. This measure seeks to protect vulnerable students to ensure that students are only signed up where they are academically suited to the course.

The Bill also contains strengthened measures in relation to marketing of VET courses and student loans to address unscrupulous behaviour of course providers. Without adequate understanding of what they are signing up to, or through pressure sales tactics, a loan can represent a significant financial liability to the student.

This Bill is compatible with the rights of the child.

Rights of Disabled Persons

Article 10 of the Declaration on the Rights of Disabled Persons ensures that disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature.

The Commonwealth is aware that the VET FEE-HELP scheme has been plagued by some unethical provider or agent practices that take advantage of vulnerable persons, including disabled persons.

In addition to retaining some of the protective measures provided for in the Reform Act (for example, prohibiting the offering of inducements), the Bill introduces several new measures to protect vulnerable persons.

The Bill provides the Secretary with the discretion not to pay a loan amount to a provider if the student is not genuine (which may arise, for example, if a provider has enrolled a person who had no real interest in engaging in a course). It also enables the re-crediting of a student's FEE-HELP balance in the event the student is not genuine, special circumstances arise (for example, the student is sick and not able to complete the course), if there has been unacceptable conduct by the provider at the time of the student's application for a loan, or if the provider failed to comply with the Bill and the failure adversely affected the student.

The Bill is compatible with the rights of disabled persons.

Conclusion

This Bill is compatible with human rights because, to the extent that it may limit human rights, the limitations are reasonable, necessary and proportionate.

Notes on Clauses

List of abbreviations used in this Explanatory Memorandum

Consequential and Transitional Bill: VET Student Loans (Consequential Amendments and Transitional Provisions) Bill 2016

HELP: Higher Education Loans Program

HESA: Higher Education Support Act 2003.

NVETR: National Vocational Education and Training Regulator

NVETR Act: National Vocational Education and Training Regulator Act 2011

Regulatory Powers Act: Regulatory Powers (Standard Provisions) Act 2014

Rules: rules made in accordance with clause 116 of the Bill

TEQSA: Tertiary Education Quality and Standards Agency

VET: vocational education and training

Part 1 - Preliminary

Clause 1 - Short title

Clause 1 provides for the short title of the Act to be the VET Student Loans Act 2016.

Clause 2 - Commencement

The table in this clause specifies that the whole of the Bill, once enacted, commences on 1 January 2017.

Clause 3 - Act binds the Crown

Subclause 3(1) provides that the Bill binds the Crown in each of its capacities.

Subclause 3(2) provides that the Crown is not liable for an offence, nor civil proceedings for a civil penalty order or infringement notices under Parts 4 and 5 respectively of the Regulatory Powers (Standard Provisions) Act 2014.

Pursuant to subclause 3(3), however, the subclause 3(2) protections do not apply to an authority of the Crown.

Clause 4 - Objects

Clause 4 provides that the object of this Bill is to provide for loans to students for vocational education and training and to ensure that the loans are provided to genuine students and for education and training that meets workplace needs and improves employment outcomes.

Clause 5 - Simplified outline of this Act

This clause provides for a simplified outline of the Bill. This outline is included to assist readers to understand the substantive provisions of the Bill but it is not intended to be comprehensive. Readers should rely on the substantive provisions.

Clause 6 - Definitions

This clause contains definitions of the terms and expressions used in the Bill. In this Bill, the term student includes a prospective student and the expression this Act includes the following:

•

the Rules;

•

any other instrument made under this Act;

•

the Higher Education Support Act 2003 to the extent that it relates to this Bill;

•

any instrument made under the Higher Education Support Act 2003 to the extent that the instrument relates to this Bill.

Part 2 - Loans to students

Part 2 of the Bill sets out the process for enabling students to access a VET student loan. Loans may only be approved by the Secretary if the student is an eligible student (Division 2) and the course is for an approved course (Division 3). A student must apply for a loan in accordance with the requirements in Division 4.

Division 1 - Secretary may approve loans

Clause 7 - Secretary may approve loans

This clause provides that Secretary may approve a loan for a course of study if he or she is satisfied that the person is an eligible student (see Division 2 of Part 2) and that the course is approved (see Division 3 of Part 2). An approved loan is a VET student loan.

Clause 8 - Amount of loan

When the Secretary approves a VET student loan for a student for a course of study, the loan will be for the amount specified in the approval. This clause provides that the amount of the loan to the student for a course of study must not exceed any of the following:

•

the maximum loan amount that is either specified in the course and loans caps determination, or is calculated in accordance with the determination (see clause 16); or

•

the amount that would reduce the student's FEE-HELP balance to zero; or

•

the tuition fees for the course.

A student's FEE-HELP balance is defined in the Higher Education Support Act 2003.

It is proposed the initial maximum loan caps in the course and loans cap determination will be set at $5000, $10,000 and $15,000. If a course has a loan cap of, for example, $15,000, but the student's FEE-HELP balance is less than $15,000, the amount of the loan to the student cannot be any more than the student's FEE-HELP balance. Equally, if the tuition fees for the course are less than $15,000, the amount of the loan to the student cannot be any more than those tuition fees.

Division 2 - Eligible students

Clause 9 - Eligible students

This clause provides that eligible students are restricted to those who meet the requirements of Division 2 of Part 2 - i.e. those who meet the enrolment and application, citizenship and residency and academic suitability requirements.

Clause 10 - Enrolment and loan application

This clause requires students to be enrolled in their course, have given their course provider any information and documents as required by the Rules and meet any other requirements set out in the Rules. For example, the Rules may provide for other requirements to apply to students whose approved course provider is provided funding from a State or Territory. A student must apply for a VET student loan in accordance with Division 4.

Subclause 10(2) requires the student to undertake the course primarily in Australia.

Clause 11 - Citizenship and residency

This clause provides that the citizenship and residency requirements are that the student must be one of the following: an Australian citizen; or the holder of a permanent humanitarian visa who is usually resident in Australia; or a qualifying New Zealand citizen. These requirements are consistent with the basic citizenship and residency requirements for FEE-HELP and VET FEE-HELP assistance under the HESA.

A qualifying New Zealand citizen is a New Zealand citizen who meets all of the following:

•

is the holder of a special category visa;

•

has been usually resident in Australia for a least 10 years;

•

was a dependent child at the time he or she was first usually resident in Australia;

•

has been in Australia for periods totalling 8 years during the previous 10 years;

•

has been in Australia for periods totalling 18 months during the previous 2 years.

A permanent humanitarian visa has the same meaning as in the Migration Regulations 1994 and a special category visa has the same meaning as in the Migration Act 1958.

Clause 12 - Academic suitability

In order to be eligible for a VET student loan, a student must have been assessed by the course provider as being academically suited to undertake the course in question (subclause 12(1)).

Subclause 12(2) provides that this assessment must be done in accordance with the provider's student entry procedures and any requirements set out in the Rules. For example, the Rules may include requirements regarding the tools to be used to assess a student's academic suitability (see also clause 48).

Subclause 12(3) provides that the provider will contravene the subclause if the provider completes or assists with completing (including, for example, by arranging for a third party to complete or assist with completing) anything that the student has to do in order to determine whether the student is academically suited to undertake the course. This provision is intended to deter less scrupulous providers from undertaking on behalf of students, or assisting students to complete, the academic suitability assessments. It is important to ensure students do not incur debts for courses which are beyond their academic ability. Consequently, contravention of this provision carries a civil penalty of 120 penalty units to reflect the serious nature of the contravention.

Division 3 - Approved courses

Clause 13 - Approved courses

This clause provides that approved courses must meet the requirements of Division 3 of Part 2.

Clause 14 - Kinds of courses

Subclause 14(1) provides that, in order to be an approved course, the course must be part of a structured and integrated program of vocational education or vocational training that leads to one of the following:

•

a qualification that is a diploma, advanced diploma, graduate certificate, or graduate diploma within the Australian Qualifications Framework and that meets the guidelines for a VET award as set out in the Australian Qualifications Framework; or

•

a qualification as specified by the Rules.

The Australian Qualifications Framework is a framework that recognises and endorses qualifications. It is established by the Commonwealth, State and Territory Ministers responsible for higher education and gives effect to agreed standards in relation to the provision of education in Australia.

Subclause 14(2) provides that the course must not only be specified in the courses and loans cap determination (see clause 16), but must also meet any requirements set out in the Rules.

Clause 15 - Provision and delivery

This clause introduces a requirement that to be eligible for a VET student loan, the course must be provided by an approved course provider and delivered by that provider. Alternatively, the course may be delivered for the approved course provider by one or more of the following:

•

a different approved course provider;

•

a person or body that has been accredited by TEQSA;

•

a person or body that the Secretary has approved in writing to deliver the course.

This provision means that approved course providers may no longer outsource the delivery of their courses (or part of their courses) except to those bodies referred to in paragraph 15(1)(b). This will ensure student training is subject to greater quality and regulatory scrutiny. This will redress issues that have occurred with the VET FEE HELP scheme where some approved providers may have been delivering minimal or no training themselves but rather selling access to the scheme. The subcontractors delivering the courses were not subject to the same scrutiny or requirements as the VET FEE-HELP providers, and in fact may not even have been a registered training organisation. These unregulated third party arrangements may have contributed to the growth in places and cost blowout of the scheme, and previously made it difficult for both providers and the Government to measure the quality of training being delivered to students.

Individual subcontractors delivering part of a course that cannot otherwise be delivered by the approved provider may be approved on a case by case basis.

Pursuant to subclause 15(2), an approved course provider whose approval has been suspended is not able to deliver an approved course. This subclause prevents new students from applying for a VET student loan for a course to be provided by an approved course provider whose approval has been suspended, and similarly prevents a suspended provider's existing students from applying for loans in respect to new courses.

Clause 16 - The courses and loans cap determination

This clause provides that the Minister may, by legislative instrument (called the courses and loans cap determination ), determine the courses of study for which VET student loans may be approved and the maximum loan amounts for those courses (or methods for working out maximum loan amounts).

It is anticipated the courses approved in the determination will be limited to those courses with a high national priority, that align with industry needs and lead to employment outcomes. Further, capping the loan amounts for the courses will better ensure the fiscal sustainability of the loan program and improve the affordability for students.

This determination may apply the method set out in Part 5-6 of the Higher Education Support Act 2003 in order to index amounts determined by, or worked out in accordance with, the determination.

Division 4 - Applications for loans

Clause 17 - Applications for loans

Subclause 17(1) provides that an application for a VET student loan for a course must include the following:

•

the student's tax file number or 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;

•

the student's student identifier (if any).

A student identifier is a unique number for all students undertaking nationally recognised training. It is defined in the Student Identifiers Act 2014.

The application for a VET student loan must be in the form approved by the Secretary and must meet any other requirements set out in the Rules. Further, the application must not be made before the end of any period specified in the Rules. This will, for example, enable the Rules to provide for a gap period between when a student enrols for a course and the time by when a loan application may be made, to allow the student to properly consider whether the student wishes to continue with the course.

Subclause 17(3) requires the application to be signed by both the student and a responsible parent of the student if the student is under 18 years of age, has a responsible parent and has not received youth allowance on the basis the student is independent (within the meaning of the Social Security Act 1991). This requirement is a protective measure for minors.

Subclause 17(4) enables the Secretary to request the student to provide further information for the purposes of considering the application and may require some or all of the information to be provided as a statutory declaration.

If the provider completes any part of the application for a VET student loan that the student is required to complete it is a contravention of subclause 17(5). In the past, less scrupulous providers have on occasions completed students' requests for Commonwealth assistance without the student being fully aware of the details or their loan commitments. Consequently, contravention of this provision carries a civil penalty of 120 penalty units to reflect the serious nature of the contravention.

Subclause 17(6) provides that a course provider contravenes this subclause if the provider collects information (including from the student) for the purposes of, or in relation to, applications by students for VET student loans and the provider gives the information to the Secretary (or gives the Secretary information based on the collected information) and the information omits a material particular or is incorrect in a material particular. A note to this subclause explains to the reader that the provider will need to verify the information they collect from the students for the purposes of, or in relation to, the student's loan application. Contravention of this provision carries a civil penalty of 120 penalty units.

Subclause 17(7) provides that the provider will not contravene subparagraph 17(6)(c)(i) if the provider has taken the steps set out in Rules made under subclause 48(1) to verify that the collected information is correct. The note to the subclause assists the reader by noting that the Rules may require an approved course provider to have specified processes and procedures in place. For example, the Rules may specify the documents from the student the provider must verify (such as those relating to citizenship) before giving the information to the Secretary.

Subclause 17(8) provides that the provider will not contravene subparagraph 17(6)(c)(ii) if the information is incorrect only because the collected information is incorrect and the provider has taken the steps set out in Rules made under subclause 48(1) to verify that the collected information is correct. Similar to above, the note to the subclause assists the reader by noting that the Rules may require an approved course provider to have specified processes and procedures in place.

Clause 18 - Decisions about loans

This clause provides that when a student applies for a VET student loan for a course, the Secretary must decide whether or not to approve the loan and must give a notice of the decision to both the student and to the course provider. The notice must be given in accordance with any requirements set out in the Rules. The Rules may provide for another person to give the notice on the Secretary's behalf.

Note that this clause relates to when the Secretary must make a decision whether or not to approve a loan, and how notice of that decision is given. The Secretary's power to make that decision (i.e. to approve the loan) is in clause 7.

Part 3 - Paying and repaying loan amounts

Part 3 sets out the requirement for the Secretary to use loans approved for a student for their tuition fees but gives the Secretary flexibility as to when the loan may be used to pay the fees. The amount of the loan must be repaid by the students in accordance with Chapter 4 of HESA. This Part also provides for when the Secretary is not required to pay a loan amount and when obligations arise for the course provider (and in some circumstances a tuition assurance scheme operator) to repay the Commonwealth.

Division 1 - Paying loan amounts

Clause 19 - Loan amount must be used to pay tuition fees

Where the Secretary has approved a VET student loan for a student under clause 7, this clause requires the Secretary to use the approved loan for a student to pay the student's course tuition fees. The loan amount may be paid to the course provider and may be paid before or after the student begins the course, after the student completes the course, or by instalments. Subclause 19(4) provides that these provisions do not limit the way the Secretary may use the loan amount to pay course fees.

When the Secretary makes a payment of a VET student loan under this clause, the student will incur a HELP debt under the proposed section 137-19 of the HESA. That section is being included in the HESA under the Consequential and Transitional Bill.

Clause 19 ensures the Secretary has flexibility in the timing and amount of payments of VET student loans. For example, the payments may be aligned with different fee periods within a course, completion of units of study or units of competency or on or about the census dates.

In conjunction with clause 20, this clause will enable the Secretary to manage the payment of VET student loans in a way that ensures the integrity of the VET student loans program, and drive appropriate behaviour by providers.

Clause 20 - When Secretary is not required to pay loan amount

Subclause 20(1) provides the following circumstances in which the Secretary is not required to pay a student's loan amount for a course:

•

the student has not given the Secretary the student's tax file number;

•

the student has not given the Secretary the student's student identifier;

•

the Secretary is satisfied that the student is either not an eligible student or not a genuine student;

•

if payment of the amount would breach a provider fee limit;

•

the loan amount is greater than the student's FEE-HELP balance;

•

the Secretary suspects on reasonable grounds that the course provider is not complying with this Bill; or

•

the course provider's approval has been suspended or revoked or has expired.

A student is not an eligible student if he or she does not meet the criteria provided for in clause 9.

The Rules (as per subclause 116(3)) may set out the matters relevant in determining if a person is a genuine student. For example, this may include evaluating if the person has reasonably engaged in the course of study by his or her attendance, the level of interaction with the course trainer or online engagement in the course or whether any assessment has been undertaken by the student.

A provider fee limit is defined in subclause 34(3). It is a condition that may be imposed on a provider to cap the VET student loan amounts that can be paid to the provider.

This clause sets out circumstances in which the Secretary is not required to make payments of a student's loan. The Secretary could, at his or her discretion, still make payments in those circumstances, if the Secretary considers it appropriate. For example, the Secretary could make payments for a student who has not given the Secretary their student identifier, if the Student Identifiers Registrar has decided to exempt the student from the requirement to hold such an identifier.

As another example, the Secretary could decide to keep making loan payments to a provider whose approval has been suspended or revoked for the provider's existing students, and only to enable those students to finish the course or their current units. This enables the so-called "teaching out" of the course or units to minimise disruption to students and if the circumstances warrant this approach. If a provider's approval has been suspended or revoked, the Secretary is unable to approve any new VET student loans for students of the provider.

The intention of clauses 19 and 20 is to give the Secretary flexibility as to when and in what circumstances to make loan payments, and in what amounts, to properly manage the VET student loans program in the public interest.

Clause 21 - Notice about payment of loan amount

This clause requires the Secretary to notify the course provider as soon as practicable of a decision not to pay a loan amount for a student for a course. The Rules may set out requirements for notifying course providers, students or other persons that loan amounts have been, or will be, or have not been, or will not be paid.

Division 2 - Repaying loan amounts

Division 2 of Part 3 of the Bill sets out when and how persons other than students are required to repay amounts of VET student loans. Students in receipt of VET student loans will be required to repay those loans in accordance with Chapter 4 of the HESA (which is amended by the Consequential and Transitional Bill accordingly).

Clause 22 - When course provider must repay loan amount

This clause provides that a course provider must repay the following amounts to the Commonwealth:

•

an amount equal to a loan amount that was used to pay for a student's tuition fees and which has been re-credited to the student's FEE-HELP balance (Part 6 of this Bill provides for re-crediting of FEE-HELP balances);

•

an amount purportedly paid to the provider under this Bill that was not payable; and

•

an amount paid to the provider which exceeded a provider fee limit imposed on the provider (if such a condition was imposed on the provider in accordance with clause 34).

A note to subclause 22(1) explains that if a student's FEE-HELP balance is re-credited, the student's VET student loan debt relevant to the loan amount concerned is remitted, as set out at section 137-19 of the HESA.

Subclause 22(4) provides that an amount payable by a course provider under this clause is a debt due to the Commonwealth.

The Commonwealth may recover the debt from one or more loan amounts otherwise payable to the course provider in relation to a student (subclause (5)). This subclause allows the Secretary to offset any amount owed by a provider under this clause against VET student loan amounts that would otherwise be payable to the provider. In this event, the amount recovered is taken to have been paid in relation to the student (subclause (6).

Clause 23 - When tuition assurance scheme operator may be required to repay loan amount

This clause applies if:

•

a debt is due to the Commonwealth because a student's FEE-HELP balance was re-credited;

•

the student's FEE-HELP balance was re-credited because a course was not delivered to completion; and

•

an approved tuition assurance arrangement applies (or applied) in relation to the student for the course.

In the event of the above, the course provider and tuition assurance scheme operator are jointly and severally liable to pay the debt. This gives the Commonwealth the discretion to recover the amount owing from either the provider or the tuition assurance scheme operator. For example, the Commonwealth may elect to recover the amounts from the provider unless the provider is insolvent or under administration. Division 4 of Part 4 describes tuition assurance arrangements.

Part 4 - Approved course provider

Division 1 of Part 4 sets out the criteria that must be satisfied for a body to be approved as an approved course provider. In contrast to the VET FEE-HELP scheme, there is a much stronger focus on providers having to be suitable before they can qualify to access the student loans program, having regard to factors such as the provider's experience, scope of the provider's courses, student outcomes, links with industry, financial performance and governance arrangements.

Division 2 enables conditions to be imposed on a provider's approval.

Division 3 provides for when a provider's approval may be suspended or revoked. It also enables the Secretary to immediately suspend a provider in urgent circumstances. Division 4 sets out requirements in relation to tuition assurance. Division 5 provides further tools to ensure compliance, such as issuing compliance notices and requiring a provider to be audited.

Division 1 - Approving course provider

Clause 24 - Meaning of approved course provider

This clause provides that a body approved by the Secretary under this Division is an approved course provider. Only students enrolled in an approved course with an approved course provider are eligible for VET student loans.

Clause 25 - Secretary may approve a body

This clause provides that the Secretary may approve a body as an approved course provider if the Secretary is satisfied that the body meets the course provider requirements.

To meet the course provider requirements the body must (subclause (2)):

•

be a body corporate that is not a trustee;

•

be established under the law of the Commonwealth, a State or a Territory;

•

carry on business in Australia and have its central management and control in Australia;

•

be a registered training organisation;

•

meet the provider suitability requirements;

•

be a fit and proper person; and

•

be a party to an approved tuition assurance arrangement.

Subclause 25(3) enables the Secretary to, in writing, exempt a body from the requirement to be a party to an approved tuition assurance arrangement. Any exemption is subject to such conditions as are specified in the exemption.

It is anticipated the Rules will detail the requirements to satisfy being a fit and proper person (pursuant to subclause 116(3)). For example, this may also include each key personnel of the body having to satisfy this requirement. An approved tuition assurance arrangement is an arrangement described in Division 4 of this Part.

Critically, approved course providers are not only required to meet the course provider requirements at the time of application but once approved must continue to meet these requirements (see subclause 47(2)).

Clause 26 - Provider suitability requirements

This clause provides that the Rules may set out the provider suitability requirements for the purposes of ensuring that VET student loan amounts are paid to suitable course providers.

Without limiting what these may be, subclause 26(2) provides examples of matters that the provider suitability requirements may deal with in relation to a course provider:

•

financial performance;

•

management and governance;

•

experience in providing vocational education;

•

scope of courses;

•

fees and modes of delivery for courses;

•

student outcomes; and

•

industry links.

The introduction of the provider suitability requirements will ensure the bar is raised in terms of the quality of providers eligible for approval. It will ensure a greater focus on student outcomes, enabling the Secretary to consider such matters as the provider's completion rates, relationships with peak industry bodies and employers and student satisfaction, by way of example.

Clause 27 - Listed course providers may be taken to meet requirements

This clause enables the Rules to provide that a listed course provider is taken to meet one or more of the course provider requirements. For example, the Rules may specify that a TAFE established by a State is taken to meet the 'fit and proper person' requirement, or similarly the Rules may provide a listed course provider is not required to be a body corporate.

Subclause 27(2) provides that each of the following is a 'listed course provider' as long as it is a registered training organisation:

•

a Table A provider;

•

a Table B provider;

•

a body established to provide vocational education and training under one of the following

o

the Technical and Further Education Commission Act 1990 (NSW)

o

the Education and Training Reform Act 2006 (Vic)

o

the TAFE Queensland Act 2013 (QLD)

o

the Vocational Education and Training Act 1996 (WA)

o

the TAFE SA Act 2012 (SA)

o

the Training and Workforce Development Act 2013 (Tas)

o

the Canberra Institute of Technical Act 1987 (ACT);

•

a training organisation owned by the Commonwealth, a State or a Territory; or

•

a body specified in the Rules.

Table A and Table B providers are both defined in the Higher Education Support Act 2003.

Clause 28 - Application for approval

This clause sets out the process for applying to the Secretary for approval as an approved course provider.

The application must be in the form approved by the Secretary and accompanied by the application fee. The Rules may set out requirements in relation to applying for approval.

Subclause 28(3) enables the Secretary to request the applicant to provide further information for the purposes of deciding the application and to require that some or all of this information be provided as a statutory declaration.

Clause 29 - Period of approval

This clause introduces a maximum period of time for which an approved course provider may be approved of no more than 7 years. The period of time for which a provider is approved will be specified in the approval. Seven years aligns with the maximum length of approval as a registered training organisation under the NVETR Act and as a higher education provider under the Tertiary Education Quality and Standards Agency Act 2011.

Note that approvals cannot begin before 1 July 2017, as set out at item 9 of Schedule 2 to the Consequential and Transitional Bill. However, Schedule 2 to that Bill will provide for certain bodies to be taken to be approved course providers from 1 January 2017.

Clause 30 - Decisions about approval

This clause sets out that if a body applies for approval and the Secretary considers and decides the application, the Secretary must give written notice of the decision to the body. The note to subclause 30(1) explains that under clause 32, the Secretary is not required to consider or decide an application for approval as an approved course provider.

Subclause 30(3) provides that the notice must be given in accordance with any requirements set out in the Rules and, if the decision is to approve the body for a period of less than 7 years, the notice must include the reasons for the period being less than 7 years.

Clause 31 - Fees for applications

This clause enables the Secretary, by legislative instrument, to prescribe fees (or a method of working out fees) for applying for approval as an approved course provider. The fee must not amount to taxation.

A annual charge will also be payable by approved course providers. This will be imposed as a tax through the VET Student Loans (Charges) Bill 2016.

Clause 32 - When Secretary is not required to consider application

This clause sets out that the Secretary is not required to consider or decide an application for approval as an approved course provider:

•

if the application does not comply with section 28 (for example, it does not include required information, or is not accompanied by the application fee); or

•

in circumstances set out in the Rules.

Circumstances in the Rules may include, for example, that applications will only be considered at certain times of the year and will not be considered outside of those times.

If the Secretary decides not to consider or decide an application, the Secretary must give the applicant written notice and reasons for the decision and refund the application fee (subclause (2)). If notice is not provided within 30 days after the application is made, the Secretary is required to consider and decide the application (subclause (3)).

Clause 33 - Period of approval extends to cover decision on re-approval

This clause provides that if an approved course provider applies for approval for a further period and the application is made at least 90 days before the provider's current approval ends (or such shorter period as the Secretary allows), the provider's current approval continues until the application is decided.

Division 2 - Conditions of approval

Clause 34 - Secretary may impose conditions

This clause enables the Secretary to impose conditions on or vary a condition of the approval of an approved course provider. The Secretary may do so at any time, including when first approving the provider. Generally-speaking, conditions will be imposed on a provider's approval to maintain the integrity and sustainability of the VET student loans program. The Secretary may, for example, decide that a particular provider's non-compliance with the Bill is best addressed by imposing a condition on the provider, rather than suspending or revoking the provider's approval (or taking some other compliance action).

Without limiting the kinds of conditions the Secretary may impose on a provider's approval, subclause 34(2) provides the following examples of conditions:

•

that one or more provider fee limits to apply to the provider;

•

that the Secretary will only make payments of VET student loan amounts for specified approved courses only; or

•

that the provider must deliver an approved course in a particular way (for example, that it must not be delivered on line) or address particular content or skills.

Subclause 34(3) explains that a provider fee limit is a limit on VET student loan amounts that can be paid to a provider, for a particular period, particular course or for a particular course for a particular period.

The Secretary must give the provider written notice of and reasons for imposing or varying a condition on the provider's approval (subclause (5)). Subclause 34(6) provides that the Rules may set out requirements in relation to giving such notice and reasons.

Division 3 - Revoking and suspending approvals

Clause 35 - Automatic revocation on winding up

This clause provides that if an approved course provider is wound up, the approval is automatically revoked when winding up commences. The note to this clause explains that the word 'commence' has the same meaning as in the Corporations Act 2001. This meaning is provided for in Division 1A of Part 5.6 of that Act - when a winding up commences will depend on whether the winding up is by court order or a voluntary resolution of the body.

Clause 36 - Secretary may revoke or suspend approval

This clause enables the Secretary to revoke or suspend a provider's approval if satisfied the provider is not complying with this Bill. Not complying with the Bill includes not complying with the Rules (see definition of this Act), any conditions imposed on the provider as well as not meeting the course provider requirements (see clause 47).

Subclause 36(2) lists the matters which the Secretary must give a provider written notice of (the intention notice) before revoking or suspending the approval. These include the reasons the Secretary proposes to revoke or suspend approval and inviting the provider to make written submissions (within a submission period) to the Secretary as to why approval should not be revoked or suspended. The submission period is 14 days from the date of the notice for a proposed suspension, otherwise it is 28 days for a proposed revocation.

Subclause 36(3) requires the Secretary to consider any submissions given within the submission period.

Subclause 36(4) provides that the Secretary must give the provider written notice (the decision notice) of the decision on suspension or revocation within 28 days after the end of the submission period and reasons for the decision. Failure to give notice of the decision in the required time does not invalidate the revocation or suspension (subclause (6)).

Subclause 36(5) provides that suspension or revocation takes effect on the day specified in the decision notice. This day must not be before the decision is made.

If a provider's approval is suspended or revoked, clause 20 gives the Secretary the discretion to not pay loan amounts for any of the provider's students. Similarly, this gives the Secretary the flexibility, if he or she decides, to continue to pay loan amounts for existing students for courses in which they have already enrolled. Loan amounts will not be able to be approved for new students or for existing students in respect to new courses (clause 15).

A note underneath this clause makes clear the Secretary may publish information about compliance action taken under this provision. This includes publishing an intention notice.

Clause 37 - Immediate suspension in certain circumstances

This clause enables the Secretary, without notice, to immediately suspend a provider's approval if the Secretary both suspects on reasonable grounds that the provider is not complying with this Bill and the Secretary is satisfied that the circumstances require urgent action. For example, the Secretary may consider urgent circumstances arise when a provider is under external administration.

The Secretary must give the provider written notice of the suspension, the reasons for the suspension and the time for when the suspension begins and ends.

Suspension begins at the time specified in the notice, which must not be before the notice is given (subclause (3)).

An immediate suspension lasts for an initial period of 14 days (although it can be lifted by the Secretary at any time). However, the duration of the suspension can be extended beyond 14 days in certain circumstances.

Under subclause (5), if within 14 days after the suspension began, the Secretary gives the provider an intention notice under clause 36, then the suspension ends when the Secretary gives the provider the decision notice under that section.

Similarly, under subclause (6), if within 14 days after the suspension began, the Secretary requires the provider to be audited under clause 45, then the suspension ends either:

•

14 days after the Secretary receives a report on the audit; or

•

if within those 14 days the Secretary gives the provider an intention notice to suspend under clause 36, when the Secretary gives the provider a decision notice under clause 36.

A note underneath this clause makes clear the Secretary may publish information about compliance action taken under this provision.

Clause 38 - Secretary must revoke approval on provider's request

If a provider writes to the Secretary requesting its approval be revoked, the Secretary must do so and give the provider written notice of the revocation.

Clause 39 - Secretary to notify relevant VET Regulator if approval is revoked or suspended

This clause requires the Secretary to give the relevant VET Regulator notice in writing if an approved course provider's approval has been revoked or suspended.

Division 4 - Tuition assurance

It is a course provider requirement that an approved course provider must be a party to tuition assurance arrangement or have an approved exemption in place. Tuition assurance protects students in the event a course provided by an approved course provider is not delivered to completion. This Division 4 sets out the requirements for tuition assurance arrangements as well as imposing requirements on tuition assurance scheme operators.

Clause 40 - Tuition assurance arrangements

This clause provides that a tuition assurance arrangement is an arrangement between a course provider and a tuition assurance scheme operator under which the operator agrees to do certain things if the provider ceases to provide a course at any time after it starts but before it is completed.

The arrangement must require the tuition assurance scheme operator to enable a student with a VET student loan to complete the relevant course (or an equivalent course), or if this is impractical, to repay the student's tuition fees for any units commenced but not completed. The tuition assurance arrangement must also meet any of the requirements set out in the Rules.

Subclause 40(3) provides, that to the extent the student's tuition fees were paid using a VET student loan, the fees must be repaid to the Commonwealth under subparagraph (2)(b)(ii). Thus, if part of a student's tuition fees for a course were paid by the student, and part paid by an amount of a VET student loan to the student, the tuition assurance scheme operator must ensure that the student is refunded the student's part of the tuition fees (ie. for the units the student has commenced and paid for but not yet completed) and ensure that the Commonwealth is refunded the VET student loan amount.

Note that, in some circumstances, a provider's tuition assurance scheme operator is jointly and severally liable for the debts of the provider in relation to VET student loans - see clause 23.

Clause 41 - Secretary may require tuition assurance scheme operator to act

This clause applies if a tuition assurance scheme applies (or applied) in relation to a student for a course and the Secretary is satisfied the provider has ceased to deliver the course. In that event, the Secretary may require a tuition assurance scheme operator to either enable a student whose tuition fees are covered by a VET student loan to complete a course (or an equivalent course) or if that is impractical, to repay the student's tuition fees in relation to any units commenced but not completed. A tuition assurance scheme operator must comply with any requirement under this clause.

Importantly for this clause, if the student enrolled in a course when the provider was a member of a tuition assurance arrangement, the Secretary may impose the obligation on the tuition assurance scheme operator whether or not the tuition assurance arrangement is still in force. This ensures an operator cannot avoid responsibility for tuition assurance arrangements for the students by, for example, terminating an arrangement in the event of a provider's insolvency.

Clause 42 - Other requirements for tuition assurance scheme operators

This clause enables the Rules to impose other requirements that must be met by a tuition assurance scheme operator who is or was a party to a tuition assurance arrangement. These may include, for example, requirements in relation to the operator's legal status (eg must be a body corporate), independence from the providers with whom it has the arrangements, financial viability, information to be provided to the Secretary and the student and assistance to be provided to students covered under the arrangement.

Similar to the comments in respect to clause 41 above, the requirements may apply whether or not the tuition assurance arrangement is still in force.

Division 5 - Ensuring compliance

Clause 43 - Compliance notices

This clause enables the Secretary to give a compliance notice to a provider if satisfied that the provider is not complying with this Bill or is aware of information that suggests that a provider is not complying with this Bill. Not complying with the Bill includes not complying with the Rules (see definition of this Act), any conditions imposed on the provider, as well as not meeting the course provider requirements (see clause 47).

Subclause 43(3) lists the requirements that compliance notices must satisfy. These include setting out the details of the non-compliance (or possible non-compliance), detailing the action the provider must take (or refrain from taking) and the timeframe for compliance. The provider may also be required to provide evidence of having taken the action required (or refrained from taking action).

Failure to comply with the compliance notice is a contravention which carries a maximum civil penalty of 60 penalty units (subclause (4)). It may also result in a provider's approval being suspended or revoked (although the issue of such a notice is not a prerequisite to suspending or revoking a provider (subclause (5))).

Clause 44 - Varying and revoking compliance notices

Where the Secretary considers it is in the public interest, the Secretary may vary or revoke a compliance notice by written notice to the provider (subclause (1)). A note to this clause provides an example that a variation could specify different action to be taken by the provider or a different period for complying with the notice. Naturally, the Secretary can revoke a compliance notice if satisfied that the provider has satisfactorily addressed the non-compliance raised in the notice.

In deciding to vary or revoke a compliance notice (subclause (2)), the Secretary must consider any submissions received from the provider within the time by when the provider must take (or refrain from taking) the action specified in the notice.

Clause 45 - Compliance audits

Under this clause the Secretary may require a provider to be audited for the purposes of determining (either or both) if the provider is complying with this Bill or if one or more of the provider's students are genuine students (see clause 20 for explanation as to the term 'genuine student').

The audit must be conducted by either the National VET Regulator or an auditor approved in writing by the Secretary. Note that one of the effects of subparagraph 45(3)(a)(i) is that the National VET Regulator has the function of carrying out compliance audits for the purposes of this Bill.

A compliance audit must be conducted at such time and manner as required by the Secretary (subclause (3)).

The auditor may require any person to provide the auditor with all reasonable facilities and assistance for the purposes of the audit (subclause (4)). Failure by a person to fully cooperate with the auditor is a contravention which carries a civil penalty of 60 penalty units.

Clause 46 - Approved course provider must cooperate

Failure by the approved course provider to cooperate fully with a VET Regulator, the Secretary, an APS employee in the Department or a consultant (including an auditor) engaged by the Commonwealth to perform work in relation to this Bill, in ensuring compliance with and in the efficient and effective administration of this Bill is a contravention which carries a civil penalty of 60 penalty units.

Part 5 - Other requirements for approved course providers

This Part sets out other requirements that apply to approved course providers. It provides for rules that apply to the providers in respect of information (including obligations to provide information to both the Commonwealth and to students), determining tuition fees and the publication of the same and rules regarding census days - in particular ensuring no penalty applies to students for cancelling an enrolment prior to a census day. This Part also sets out limitations on marketing by providers such as prohibiting cold-calling and inducements. In certain circumstances, executive officers of providers may be personally liable.

Division 1 - General

Clause 47 - Conditions of approval and course provider requirements

This clause makes clear that an approved course provider must comply with any conditions imposed on the provider's approval (in accordance with clause 34). The approved course provider must also continue to meet the course provider requirements - this ensures that requirements such as those going to the suitability of the body as a provider remain ongoing requirements and do not apply only at the time of application to be an approved course provider.

Non-compliance with clause 47 may result in (amongst other things) a compliance notice being issued, a requirement for the provider to be audited, suspension or revocation of the provider's approval or loan amounts not being paid.

Clause 48 - Provider must have certain processes and procedures

This clause provides that the Rules may require an approved course provider to have specified processes and procedures in place. Without limiting what these may be, the processes and procedures may relate to, for example:

•

information the provider collects for the purposes of, or in relation to, applications by students for VET student loans;

•

processes or procedures for students to enrol in courses (including student entry procedures) and withdraw from courses;

•

tuition assurance;

•

student grievances;

•

equal benefits and opportunities for students; and

•

review of decisions.

The Rules may also specify requirements to be met in establishing and operating the processes and procedures. For example, the student entry procedures may require students to attain a certain level of secondary education or have been assessed to meet certain standards of competency in reading and numeracy to satisfy entry requirements for particular courses.

Contravention of this provision attracts a civil penalty of 60 penalty units.

Clause 49 - Provider must not use broker or agent

This clause provides that an approved course provider contravenes this provision if the provider enters into an arrangement that provides for another person to undertake one or more of the activities set out in paragraphs 49(1)(a) to 49(1)(e) in relation to a course provided by the provider. It does not matter whether the arrangement is in writing or not. Contravention carries a civil penalty of 60 penalty units.

Subclause 49(2) clarifies that the above prohibition does not apply in relation to an arrangement that is a contract of employment or an arrangement specified by the Rules. A note to this subclause clarifies that employees will be covered by other requirements that apply to approved course providers.

This clause will prevent providers from engaging third parties, such as agents or brokers, to undertake activities on the provider's behalf such as enrolling students for whom the tuition fees will be covered by a VET student loan. This provision will ensure providers themselves are fully responsible for any engagements with the students regarding their student loans. More particularly, clause 49 prohibits a provider from using a broker or agent to:

•

enrol students, or accept an application to enrol students, on the basis or understanding, that some or all of the students' tuition fees for the course will be covered by a VET student loan;

•

mention the availability of VET student loans for a course in any marketing or promotional material;

•

provide information or advice in relation to VET student loans for a course;

•

assist students to complete or submit applications for a VET student loan for the course; or

•

assist or provide support for, students who could be eligible for a VET student loan for the course to complete any assessments required to show that students are academically suited to undertake the course.

For example, a provider will no longer be able to enter into an arrangement with a broker for which the broker recruits or refers students to enrol in courses with the provider, if the broker gives any information to the student about a student loan for the course. This prohibition applies even if the broker is not the person enrolling the student and it is the provider that verifies the student's eligibility for a VET student loan and undertakes the academic suitability assessment.

Division 2 - Information

Clause 50 - Information for students

This clause provides that the Rules may require an approved course provider to do one or more of the following in relation to VET student loans or the operation of this Bill:

•

give particular information to students;

•

give information to students in a particular way;

•

give information to students at a particular time.

For example, the Rules may require approved course providers to give information regarding the student's responsibilities, obligations and rights if the student proposes to apply for a student loan, a notice about the student's course details, the amount of the VET student loan applicable to the course and when fees are payable. The Rules may specify the time by when the information must be delivered, for example, having regard to the date of the student's enrolment in the course or any of the census days for the course. The Rules may also specify the manner in which the information must be given to the students.

If the provider fails to comply with the Rules made under this clause, this carries a civil penalty of 60 penalty units and it is also an offence of strict liability with the same penalty amount.

Strict liability for this offence is appropriate (having regard to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers) because the offence:

•

is subject to an infringement notice scheme (see clause 85);

•

is punishable by a fine of up to 60 penalty units and it is not punishable by imprisonment; and

•

will enhance the effectiveness of the enforcement regime under this Bill in deterring such conduct.

Clause 51 - Retaining information and documents

This clause provides that an approved course provider must retain documents or information related to the operation of this Bill and specified by the Rules. For example, the Rules may specify the provider must retain documents produced by a student to demonstrate the student meets the citizenship or residency requirements, the results of a student's assessment of academic suitability or any written communications between the student and the approved course provider.

The documents or information must be retained for the period specified in the Rules or if no period is specified, the approved course provider must retain the documents or information for a period of 7 years.

Failure of an approved course provider to retain documents and information in accordance with this clause 51 carries a civil penalty of 60 penalty units and is also a strict liability offence with the same penalty amount.

Strict liability for this offence is appropriate (having regard to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers) because the offence:

•

is subject to an infringement notice scheme (see clause 85);

•

is punishable by a fine of up to 60 penalty units and it is not punishable by imprisonment; and

•

will enhance the effectiveness of the enforcement regime under this Bill in deterring such conduct.

Clause 52 - Ongoing information requirements

This clause enables the Rules to set out ongoing information requirements to ensure that approved course providers are complying with the Bill and that the Secretary has access to information and documents related to the operation of the Bill. This clause bolsters the transparency and accountability of the providers' governance and management.

Subclause 52(2) provides that the ongoing information requirements may require an approved course provider to do one or more of the following activities set out in paragraphs 52(2)(a) to (d). These are that the provider:

•

be audited in circumstances set out in the Rules;

•

provide the Secretary with specified information or documents. Subparagraphs 52(2)(b)(i) to 52(2)(b)(ix) set out a non-exhaustive list of the types of specified information or documents which an approved course provider may be required to provide to the Secretary as ongoing requirements;

•

notify the Secretary if the provider is not complying with the Bill (which includes not complying with the conditions of the provider's approval or not meeting the course provider requirements); and

•

provide the information in a particular form, which may include as a statutory declaration.

For example, the Rules may provide that it is an ongoing requirement that providers must notify the Secretary at any time there is a change in the key personnel of the provider or if there is a change in the provider's management or governance arrangements.

Subclause 52(3) confirms that the types of information or documents enumerated in paragraph 52(2)(b) are not intended to be limited to the types specified or restrict what may be required as part of a provider's ongoing information requirements.

Failure of an approved course provider to comply with the ongoing information requirements carries a civil penalty of 60 penalty units and it is also a strict liability offence with the same penalty amount.

Strict liability for this offence is appropriate (having regard to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers) because the offence:

•

is subject to an infringement notice scheme (see clause 85);

•

is punishable by a fine of up to 60 penalty units and it is not punishable by imprisonment; and

•

will enhance the effectiveness of the enforcement regime under this Bill in deterring such conduct.

Clause 53 - Secretary may request information

This clause provides that the Secretary may, by notice in writing, require an approved course provider to give the Secretary information or documents that relate to the provision of vocational education and training by the provider or the provider's compliance with the Bill.

The purpose of this clause is to ensure the Secretary has access to all relevant information or documents to determine whether a provider is operating in compliance with the Bill, Rules and any conditions imposed on the provider. It also enables the Secretary to access information relating to the provision of vocational education and training offered by the provider. The requested information may include, for example, statistical and student information relating to VET student loans. This obligation is expansive and extends to having to produce documents as well as the giving of information.

Subclause 53(2) provides that the requested information or documents must be provided in the form specified in the written notice, which may include that the information be provided by a statutory declaration. The information or documents must also be provided in accordance with any other requirements specified in the notice from the Secretary.

Subclause 53(3) provides that a notice issued under subclause 53(1) must not require a provider to give information or documents that the provider is otherwise already obligated to provide under any other provisions of the Bill. This is in order to avoid duplication of reporting obligations on providers, for example, if the provider is already required to produce the information as part of its ongoing information requirements under clause 52.

Failure to comply with a notice given under this clause carries a civil penalty of 60 penalty units and is also a strict liability offence with the same penalty amount.

Clause 54 - Dealing with personal information

Subclause 54(1) makes clear that an approved course provider must comply with the Australian Privacy Principles in relation to personal information obtained for the purposes of this Bill.

A provider's obligation to comply with the Australian Privacy Principles relating to access, use and disclosure of personal information would include, but not be limited to, an approved course provider's acquisition, handling and retention of students' personal information as well as ensuring its procedures for handling personal information and providing students access to their personal information complies with the Australian Privacy Principles.

Subclause 54(2) provides that a failure to comply with subclause (1) would involve an interference with the privacy of the individual concerned for the purposes of section 13 of the Privacy Act 1988, and the note to the subclause explains that the act or practice may be the subject of a complaint under section 36 of that Act.

Subclause 54(3) provides that an approved course provider must have a procedure in place which enables a student enrolled with that provider to apply for, and receive a copy of personal information that the provider holds in relation to that student.

In addition, subclause 54(4) provides that an approved course provider must comply with any requirements set out in the Rules relating to the management of personal information.

A provider may be issued with a compliance notice under clause 43 ( amongst other things), in the event the provider does not comply with this clause 54.

Division 3 - Fees

Clause 55 - Determining tuition fees

This clause provides that an approved course provider must determine the tuition fees for each approved course offered by the provider for a particular period.

The Rules may specify matters to which an approved course provider must or must not have regard in determining tuition fees for an approved course and may specify goods and services that must not be covered by the tuition fees. For example, the Rules may specify that fees for amenities or services that are not of an academic nature must not be included as part of the tuition fees.

The Rules may also specify how and when tuition fees for an approved course may be charged and how and when the provider may vary the fees. For example, the Rules may require the fees to be apportioned across the course in separate fee periods.

Contravention of this clause attracts a civil penalty of 120 penalty units to reflect the serious nature of the contravention and deter such conduct.

Clause 56 - Student not liable for covered fees

This clause ensures students will not be liable for tuition fees that are stated to be covered by a VET student loan. Fees which are stated to be covered by a VET student loan are referred to as 'covered fees'.

Subclause 56(1) provides that if an approved course provider enrols a student in a course, the provider must give the student a written statement as to whether or not the enrolment is accepted on the basis that some or all of the tuition fees will be covered by a VET student loan. This statement will provide students with greater visibility as to their tuition fees and what part of these fees relate to the student loan.

The mandatory requirements for the written statement are that:

•

the statement must be given in accordance with the Rules;

•

if only some of the fees will be covered by a loan - the statement must show the amounts of the tuition fees that will, and will not, be covered by the VET student loan; and

•

the statement must meet any other requirements set out in the Rules.

Clause 50 of this Bill also enables the Rules to specify other information an approved course provider is required to give to a student in relation to a VET student loan.

A provider will contravene this clause if the provider requires a student to pay any 'covered fees'. This provision ensures, for example, that a provider will not be able to recover 'covered fees' from a student in the event all or part of the student's loan amount is re-credited by the Secretary (see clause 71). Contravention of this provision attracts a civil penalty of 60 penalty units.

Clause 57 - Publishing tuition fees

This clause provides that an approved course provider will contravene this clause if the provider enrols a student in a course on the basis that some or all of the tuition fees for the course are covered fees and on the day before the student is enrolled, the tuition fees for the course were not available on the provider's website in a way that was readily accessible by the public. Contravention attracts a civil penalty of 60 penalty units.

This clause penalises a provider that does not ensure that students (including prospective students) have access to tuition fee information on the provider's website in a readily accessible place. Readily accessible by the public would include, for example, ensuring there are clear links to the tuition fees for a course on the provider's website so to enable students to easily navigate to the information and without having first to provide personal details or register with the provider.

This clause is designed to ensure tuition fee information is accurately and prominently published so students have sufficient information prior to their enrolment to make informed enrolment, study and payment decisions.

Division 4 - Census days

Clause 58 - Determining and publishing census days

This clause provides that if an approved provider offers an approved course for a particular period, the provider must determine the date or dates for the course by which a student's enrolment in the course can be cancelled without the student incurring tuition fees for the course or a part of the course. Subclause 58(3) defines this date as being a 'census day'.

Subclause 58(4) provides that a census day must be determined and published in accordance with any requirements set out in the Rules. For example, the Rules may specify a census day must be at a certain point of time from when a course has commenced. Similarly, the Rules may specify a course may be required to have more than one census day for the different course components.

Once a census day is published, a provider must not vary that census date other than in accordance with the Rules (subclause (5)).

Failure to determine or publish a census day in accordance with the Rules attracts a civil penalty of 60 penalty units. Failure to vary a census day other than in accordance with the Rules attracts the same penalty.

Clause 59 - No penalty for cancelling enrolment before census day

This clause provides for civil penalties to apply where providers fail to cancel a student's enrolment notwithstanding a request to do so on or before a census day or charge a fee for cancelling an enrolment or inhibit or unnecessarily inconvenience a student in relation to cancelling an enrolment.

Subclause 59(1) provides that an approved course provider will contravene this clause if the provider fails to cancel a student's enrolment before the end of a census day in circumstances where the course is one where some or all of the tuition fees for the course are 'covered fees' and the student has requested in writing on or before a census day for the course to cancel the student's enrolment.

Subclause 59(2) provides that an approved course provider will contravene this subclause if the provider charges a fee (however described) for cancelling a student's enrolment in circumstances where some or all of the tuition fees for the course are 'covered fees' and the student requested in writing on or before a census day for the course, that the student's enrolment be cancelled.

Subclause 59(3) provides that a provider will contravene this subclause if the provider engages in conduct which either prevents the student from cancelling his or her enrolment in a course for which some or all of the tuition fees are covered fees or unnecessarily inconveniences the student with respect to the cancellation.

Contravention of each of these provisions attracts a civil penalty of 120 penalty units.

Division 5 - Marketing

Clause 60 Misrepresenting VET student loans

This clause prohibits an approved course provider from representing (whether in writing or through any verbal representation) that a VET student loan is either not a loan or does not need to be repaid. Contravention of this clause attracts a civil penalty of 240 penalty units to reflect the particularly serious nature of the contravention and deter such conduct.

It is imperative to protect students from enrolling in approved courses based on a misunderstanding as to the nature of a VET student loan and/or the requirement to repay the loan.

Clause 61 - Offering certain inducements

This clause prohibits a provider from offering or providing a benefit or causing a benefit to be offered or provided which would be reasonably likely to induce a person to apply for a VET student loan for a course. Contravention of this provision carries a civil penalty of 120 penalty units to reflect the serious nature of the contravention.

The intent of this clause is to ensure students are not incentivised to apply for a VET student loan for a course due to inappropriate benefits or inducements. This is to avoid situations that occurred in the past with the VET FEE-HELP assistance scheme, in which students were induced to enrol in a course and apply for a loan with the offer of free laptops, money and vouchers for goods and services. The prohibition on the offering of inducements extends to any marketing, advertising or material which does or could involve promoting of an inducement.

Benefits specified in the Rules will not be considered inducements. For example, promoting the content and quality of a course will be considered an exempt benefit.

Clause 62 - Engaging in cold calling

This clause prohibits an approved course provider from cold calling another person to market, advertise or promote a course where in doing so, or as a result of doing so, the approved course provider mentions the possible availability of a VET student loan (however described) for students undertaking the course. Contravention of this provision carries a civil penalty of 60 penalty units.

Cold-calling is defined as including making unsolicited contact with a student (or prospective student) in person, by telephone, email or other form of electronic communication. This definition is not exhaustive and is intended to be interpreted broadly.

The purpose of this clause is to ensure that unless a student or prospective student has provided his or her express consent to being contacted by a provider, the provider cannot mention the availability of a VET student loan. For example, this would preclude a provider approaching a prospective student in a shopping centre and mentioning the availability of a student loan.

Subclause 62(3) enables the Rules to set out conduct that is deemed to be cold-calling.

Clause 63 - Use of third party contact lists

This clause provides that a course provider contravenes this provision if the provider receives a student's contact details from another person, contacts the student to market, advertise or promote a course and when doing so, or as a result of doing so, mentions the possible availability of a VET student loan (however described) for students undertaking the course. Contravention attracts a civil penalty of 60 penalty units.

This clause will prevent course providers from contacting prospective students to market or promote courses and the availability of VET student loans, where the provider has obtained the person's contact details from contact lists procured from third parties, in instances where the person has provided broad consent to direct marketing (for example, job seek websites). An exception to this prohibition is if the student has expressly consented to being contacted - but the consent must have been given by the student to being contacted by that particular provider.

Clause 64 - Other marketing requirements

This clause enables the Rules to set out requirements in relation to the marketing of courses in circumstances where tuition fees for the courses may be covered by VET student loans. Failure to comply with these Rules is a contravention that carries a civil penalty of 60 penalty units.

This clause recognises and provides for the need to allow for more detailed and specific rules and limitations in relation to the marketing of courses to be addressed in the Rules. This allows for rules to evolve and remain relevant to the changing VET environment to combat the evolving practices of the less scrupulous providers. The civil penalty is justified as a deterrent to inappropriate marketing practices by providers and to provide further protection for prospective students.

Division 6 - Personal liability for executive officers

Clause 65 - Personal liability for executive officers

Subclauses 65(1) and (3) impose personal liability on executive officers of providers where the provider commits an offence or contravenes a civil penalty provision, the officer knew that the offence would be committed or the contravention would occur and the officer was in the position to influence the conduct of the provider and failed to take all reasonable steps to prevent the commission of the offence or the contravention.

The maximum penalty for both the offence against subclause 65(1) and contravention of subclause 65(3) is one-fifth of the maximum penalty that could be imposed on the provider.

This clause recognises the role of proper management and governance and the serious nature of the problem when people in management and governance roles in the provider are involved in the commission of offences or contraventions of civil penalty provisions. These subclauses prevent executive officers from avoiding personal responsibility but only in the limited circumstances described above where the officer was aware a contravention would occur and was in a position to influence the provider's conduct and did not take steps to prevent it. This clause should further incentivise persons of influence to ensure the provider complies with the Bill.

A similar provision to clause 65 is provided for in the NVETR Act (see section 133 of that Act).

Clause 66 - Reasonable steps to prevent offence or contravention

This clause provides further detail for the purpose of clause 65, to set out matters that the court will have regard to in determining whether an executive officer failed to take all reasonable steps to prevent the commission of an offence, or the contravention of a civil penalty provision. Subclause 66(2) provides that this clause does not limit the matters to which the court may have regard. Thus the matters set out in subclause 65(1) are not exhaustive and relevant matters depend on the circumstances of each case.

Such matters the court will consider include:

•

what action (if any) the officer took towards ensuring that the provider's employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Bill, in so far as those requirements affected the employees, agents or contractors concerned; and

•

what action (if any) the officer took when he or she became aware of the offence or contravention.

These matters cover the officer's actions before the commission or contravention as well as the officer's actions once becoming aware of the issue.

Part 6 - Re-crediting FEE-HELP balances

Part 6 provides for the re-crediting of a student's FEE-HELP balance, in certain circumstances, if an amount of a VET student loan has been used to pay tuition fees for the student for a course or part of a course.

Under section 104-15 of the HESA, as amended by the Consequential and Transitional Bill, a student's FEE-HELP balance will be reduced by the amount of a VET student loan that is paid to them under this Bill; and will be increased by any amount re-credited under Part 6 of this Bill.

Division 2 provides for the re-crediting by the course provider in special circumstances on application by the student. Division 3 provides for the re-crediting by the provider when the provider has ceased to provide a course and it is impractical for the student to finish the course under the tuition assurance arrangement. Division 4 provides for the re-crediting by the Secretary if satisfied, for example, the student is not genuine or the provider has engaged in unacceptable conduct in relation to the student's loan application.

Division 1 - Application of Part

Clause 67 - Application of Part

Clause 67 provides that this Part applies if an amount of a VET student loan has been used to pay tuition fees for a student for a course, or a part of a course. The note to the clause explains that if a student's FEE-HELP balance is re-credited, the student's VET student loan debt relevant to the loan amount concerned is remitted, as set out at section 137-19 of the HESA (which will be inserted into the HESA by the Consequential and Transitional Bill).

Division 2 - Re-crediting by course provider

Clause 68 - Special Circumstances

This clause requires a course provider (on the Secretary's behalf) to re-credit a student's FEE-HELP balance if an application is made by the student in writing and the course provider is satisfied that special circumstances prevented, or will prevent, the student from completing the requirements of the course or part of the course.

The student's application must be made within 12 months after the census day for the course or the part of the course, although the provider has the discretion to extend this period (subclause (2)).

Subclause 68(3) provides special circumstances are those which:

•

are beyond the student's control; and

•

do not make their full impact on the student until on or after the census day for the course, or the part of the course; and

•

make it impracticable for the student to complete the requirements for the course, or the part of the course, during the student's enrolment in the course, or the part of the course.

The amount to be re-credited by a provider under this clause must equal the amount of the VET student loan which has been used to pay tuition fees for the student for the course or part of the course.

For example, a student may have completed three out of four units required to complete an approved course. After the census day for the fourth unit, the student became critically ill and was unable to attend the remainder of the course. The provider must consider any application received from the student in accordance with this clause if the application is made within 12 months from the census day for the fourth unit. If the application is successful, the provider must re-credit the student's FEE-HELP balance for the amount of the tuition fees for the fourth unit.

Subclause 68(5) requires the course provider to consider an application for a student's FEE-HELP balance to be re-credited as soon as practicable and notify the student of the provider's decision on the application. The notice must include a statement of reasons for the decision. Clause 70 enables the Secretary to act in place of the provider in certain circumstances.

Clause 69 - Course not provided to completion

This clause requires a course provider (on the Secretary's behalf) to re-credit a student's FEE-HELP balance if the student has not completed the requirements for the course, or part of the course, because the provider ceased to provide the course and it is impractical for the student under the tuition assurance arrangement to finish the course or an equivalent course. For example, it would be impractical for the student to continue the course where the student is unable to readily access a training place in a similar course in a reasonably nearby location.

Division 4 of Part 4 provides for tuition assurance arrangements.

It should be noted that the obligation on the course provider to re-credit a student's FEE-HELP balance under this clause arises irrespective of whether the student applies for the re-crediting.

The amount re-credited under this clause must equal the amount of the VET student loan that has been used to pay tuition fees for the student for the course, or part of the course.

Subclause 69(3) requires the course provider to notify the student and the tuition assurance scheme operator for the student for the course of the re-credit as soon as practicable after the provider re-credits the student's FEE-HELP balance under this clause.

Clause 70 - Secretary may act in place of provider

This clause enables the Secretary to re-credit the student's FEE-HELP balance under this Division 2 in the event the provider is unable to act or is being wound up or has been dissolved or if the course provider has failed to act and the Secretary is satisfied the failure is unreasonable. This ensures students will not be unfairly impacted if special circumstances have prevented the student from completing his or her course and the provider is, for example, being wound up.

Division 3 - Re-crediting by Secretary

Clause 71 - When Secretary may re-credit FEE-HELP balance

This clause provides for circumstances when the Secretary has the discretion to re-credit a student's FEE HELP balance if an amount of a VET student loan has been used to pay tuition fees for a course. This discretion is not dependent on a student applying to have his or her FEE-HELP balance re-credited.

The Secretary must be satisfied one of the following applies:

(a)

the course provider (or a person on the provider's behalf) has engaged in unacceptable conduct in relation to the student's application for the VET student loan;

(b)

the student:

•

is not an eligible student

•

is not a genuine student

•

does not have a tax file number

•

does not have a student identifier;

(c)

the course provider has failed to comply with the Bill and the failure has adversely affected the student.

'Unacceptable conduct' (in relation to the student's application for the VET student loan) is defined to have the meaning given by the Rules. For example, this may include: publishing or providing information suggesting a VET student loan is not a loan, inappropriate inducements, cold calling and failing to publish tuition fees.

An eligible student is a student who meets the requirements under Division 2 of Part 2 of this Bill. A genuine student is discussed in the explanation under clause 20. Enabling the Secretary to re-credit a student's FEE-HELP balance if the student is not a genuine student should deter providers from enrolling in approved courses students whom have little or no real interest in undertaking the course.

Subclause 71(5) provides that the amount re-credited must not exceed the amount of the VET student loan that has been used to pay tuition fees for the student for the course or part of the course. However, the Secretary will have a general discretion to decide how much of a student's FEE-HELP balance to re-credit under this clause. While generally the Secretary will re-credit a student's FEE-HELP balance to the full amount of the VET student loan that has been paid out, there may be circumstances where that is inappropriate - for example, where the student is able to get recognition of prior learning for some units for which the tuition fees have been covered by amounts of a VET student loan, and hence has clearly obtained the benefit of those loan amounts, the Secretary may not re-credit the loan amounts paid for tuition fees for those units.

Subclause 71(6) makes clear that the discretion of the Secretary to re-credit a student's FEE-HELP balance under this clause 71 applies whether or not the student applies for the re-credit. This provision will enable the Secretary to re-credit a group of students' FEE-HELP balances if, for instance, the same unacceptable conduct by a provider applied to each person in that group. This provision also covers situations where the student might not be aware of his or her rights and might not be in a position to apply for a re-credit or similarly, the Secretary is satisfied a student is not genuine (for example, it is clear the student has never engaged in the course) but is unable to contact the student.

Clause 72 - Student may apply for re-crediting by Secretary

This clause enables a student to apply to the Secretary for the student's FEE-HELP balance to be re-credited under clause 71. The application must be in writing and meet any requirements set out in the Rules. However, as set out in subclause 71(6), even where the student does not apply for a re-credit, the Secretary may still re-credit the student's FEE-HELP balance.

Clause 73 - Secretary must invite submissions before re-crediting

The purpose of this clause is to ensure that procedural fairness is afforded to a course provider in relation to course fee re-credit determinations and enables the course provider to exercise a right of reply in response to a prospective re-crediting of a student's FEE-HELP balance by the Secretary (which may give rise to the provider owing the Commonwealth a debt under clause 22).

Subclause 73(1) provides that before re-crediting a student's FEE-HELP balance under this Division, the Secretary must give the course provider concerned notice in writing. The notice must state the following:

•

that the Secretary is considering the re-credit; and

•

the reasons why the Secretary is considering the re-credit; and

•

invite the course provider to make written submissions to the Secretary about the re-credit within 28 days.

The Secretary must take into account any submissions received from the course provider within the 28 day period in deciding whether to re-credit a student's FEE-HELP balance (subclause (2)).

This clause does not require the Secretary to consult with the student before making a decision to re-credit the student's FEE-HELP balance. In most instances the exercise of the power under Division 3 will be at the initiative of the Secretary and in the interests of the student, so not having to consult with the student in the first instance reduces the administrative burden (especially given the difficulty of contacting alleged students that has been encountered in the VET FEE-HELP scheme). In the event a decision by the Secretary under this Division may be adverse to the student, administrative fairness would ensure the student would be contacted.

Subclause 73(3) provides that as soon as practicable after a decision is made, the Secretary must give the student and the course provider written notice of the Secretary's decision.

Part 7 - Review of Decisions

This Part lists the decisions made under this Bill which are reviewable. Applicants may apply for reviewable decisions to be reconsidered. Decision makers may also reconsider such decisions in the absence of an application if satisfied there is sufficient reason to do so. Applicants may apply to the Administrative Appeals Tribunal for review of a reconsidered decision. Division 3 of this Part makes clear decision makers can review non-reviewable decisions of their own initiative if satisfied there is sufficient reason to do so.

Division 1 - Reviewable decisions

Clause 74 - Reviewable decisions

This clause sets out in a table the list of decisions that are reviewable under this Part 7. The table includes a column listing the provision under which the reviewable decision is made and specifies the decision maker in respect of each of these decisions. The purpose of this clause is to provide increased clarity around reviewable decisions and the decision-maker responsible for each of those decisions.

Clause 75 - When applications are taken to be refused

This clause provides that a decision maker is taken to have decided to refuse an application, if an application for a reviewable decision is made and the decision maker is required to notify the person of the decision and the person is not notified within the required time or, if there is no required time, within 2 months after the application is made.

Division 2 - Reconsideration of reviewable decisions

Clause 76 - Application for reconsideration

This clause provides that a person whose interests are affected by a reviewable decision may request the decision-maker to reconsider the decision. The request must be in writing and given to the decision maker within 28 days after the day the person received notice of the decision. The decision maker has the discretion to extend this timeframe. The request must provide the reasons for requesting the reconsideration of the decision.

Subclause 76(4) provides that the decision maker must reconsider the decision and either confirm or vary the decision or set aside the decision and substitute a new decision. The reconsidered decision takes effect either on the day specified in the reconsidered decision or, if a day is not specified, then on the day on which the reconsidered decision is made (subclause (5)).

The decision maker must give the person written notice of the reconsidered decision. The notice must be provided to the person within a reasonable time after the reconsidered decision is made and must also contain a statement of reasons.

Subclause 76(8) provides that a decision maker is taken to have confirmed the reviewable decision if the decision maker does not give notice of the reconsidered decision to the person within 45 days after receiving the person's request. This is to allow for greater certainty to the person affected through providing a default position.

Clause 77 - Reconsideration without application

This clause enables a decision maker to reconsider a reviewable decision if the reviewer is satisfied that there is sufficient reason to do so. A decision maker may reconsider the decision whether or not an application has been made for it to be reconsidered, whether the decision has been confirmed, varied or set aside under clause 76 or an application has been made under clause 80 for review of the initial decision by the Administrative Appeals Tribunal.

Subclause 77(3) provides that after reconsidering the reviewable decision, the decision maker must either confirm or vary the decision or set aside the decision and substitute a new decision. The decision maker's decision (called the reconsidered decision) takes effect either on the day specified in the reconsidered decision or if a day is not specified, then on the day on which the reconsidered decision is made (subclause (4)).

The decision maker must give the person written notice of the reconsidered decision within a reasonable time after the reconsidered decision is made. The notice must also contain a statement of reasons.

Clause 78 - Reconsideration by delegates

This clause provides that the delegate of the Secretary who made a decision under review must not be the delegate that reconsiders that decision. This is to allow for a fair and unbiased reconsideration of the initial decision.

A reviewable decision may be reconsidered by another delegate of the Secretary, but only if that delegate was not involved in making the decision and occupies a position that is at a level not lower than that of the delegate who made the initial decision. These measures are to allow for an accountable and transparent reconsideration of the decision and to avoid issues of conflict of interest, inexperience, or pressure felt by a more junior officer to confirm a more senior officer's decision.

Clause 79 - Approved course providers must have review officers

This clause provides that a course provider must appoint an officer to reconsider reviewable decisions made by the provider. This will only apply to decisions made by the provider under clause 68.

The review officer must be appointed by the Chief Executive Officer (CEO) or a delegate of the CEO of the provider. This is to ensure involvement at the highest levels of management in the appointment of an appropriately skilled and experienced person who has endorsement of the CEO to undertake the review of the decision.

The review officer must not reconsider a decision if the officer was involved in making the decision or occupies a position that is at a level lower than that of the person who made the decision.

Clause 80 - Review by the AAT

This clause provides that an application may be made to the Administrative Appeals Tribunal for the review of a reconsidered decision that has been made under clause 76 or 77. This clause makes clear, that for the purposes of the Administrative Appeals Tribunal Act 1975, the student concerned is taken to be the only person whose interests are affected by the reconsidered decisions under clauses 18 (decision about a loan), 68 (re-crediting for special circumstances) or 71(re-crediting by the Secretary) of this Bill.

Division 3 - Reconsideration of other decisions

Clause 81 - Reconsideration of other decisions

This clause enables a person to reconsider a decision he or she has made (that is not a reviewable decision) if the person is satisfied there is sufficient reason to do so. A decision-maker can reconsider a decision at any time. Note that this provision will also allow one delegate to reconsider the decision of another delegate, as they will be the same "person" (e.g. the Secretary) for the purposes of the Bill.

After reconsidering the decision, the person must confirm or vary the decision or set the decision aside and substitute a new decision. The reconsidered decision takes effect either on the day specified in the reconsidered decision or if a day is not specified, then on the day on which the reconsidered decision is made. The decision maker must give the person written notice of the reconsidered decision within a reasonable time after the reconsidered decision is made. The notice must also contain a statement of reasons.

Part 8 - Regulatory powers

Part 8 triggers all of the powers in the Regulatory Powers Act in relation to this Bill. The Regulatory Powers Act provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions.

The regulatory powers are in addition to the wide variety of mechanisms the Bill provides the Secretary with to maintain the integrity of the VET student loans program, and to monitor and enforce compliance by approved course providers. Under Part 4, the Secretary can impose conditions on provider approvals, suspend and revoke provider approvals, issue compliance notices and require a compliance audit of a provider. Under Part 3, the Secretary can manage payments of VET student loan amounts to providers, and require repayment of VET student loan amounts.

Clause 82 - Monitoring powers

This clause provides Departmental investigators and NVETR investigators with monitoring powers by triggering Part 2 of the Regulatory Powers Act. It provides that the Bill is subject to monitoring under Part 2 of the Regulatory Powers Act, as is any information given in compliance or purported compliance with a provision of this Bill.

Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Bill has been complied with and whether information given in compliance or purported compliance with the Bill is correct. Part 2 of the Regulatory Powers Act includes powers of entry and inspection.

This clause also aligns provisions and definitions with corresponding provisions and definitions of the Regulatory Powers Act, including:

•

making Departmental investigators and NVETR investigators, authorised applicants and authorised persons;

•

aligning issuing officers and relevant courts; and

•

specifying that the Secretary is the relevant chief executive for Departmental investigators and the NVETR Commissioner is the relevant chief executive for NVETR investigators.

Subclause 82(4) enables Departmental investigators and NVETR investigators to be assisted by other persons when exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to this Bill. Departmental investigators and NVETR investigators are appointed under clause 88 of this Bill.

Clause 83 - Investigation powers

This clause provides Departmental investigators and NVETR investigators with investigation powers by triggering Part 3 of the Regulatory Powers Act.

Any offence or civil penalty provision under this Bill, or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Bill, will be subject to investigation under Part 3 of the Regulatory Powers Act.

Part 3 of the Regulatory Powers Act creates a framework for gathering material relating to the contravention of offence and civil penalty provisions; it includes powers of entry, search and seizure.

This clause also aligns provisions and definitions with corresponding provisions and definitions of the Regulatory Powers Act, including:

•

making Departmental investigators and NVETR investigators authorised applicants and authorised persons;

•

aligning issuing officers and relevant courts; and

•

specifying that the Secretary is the relevant chief executive for Departmental investigators and the NVETR Commissioner is the relevant chief executive for NVETR Investigators.

Subclause 83(3) enables Departmental investigators and NVETR investigators to be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to this Bill.

Clause 84 - Civil penalty provisions

This clause provides that each civil penalty provision of the Bill is enforceable under Part 4 of the Regulatory Powers Act. Part 4 of that Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Subclause 84(2) specifies who are the authorised applicants and which are relevant courts for the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to this Bill.

Clause 85 - Infringement notices

This clause provides that an offence or civil penalty provision of this Bill is subject to an infringement notice under Part 5 of the Regulatory Powers Act. Part 5 of that Act creates a framework for using infringement notices in relation to provisions.

A person who is given an infringement notice can choose to pay the amount specified as an alternative to having court proceedings brought against them for the contravention.

This clause also aligns provisions and definitions with corresponding provisions and definitions of the Regulatory Powers Act, including:

•

making staff members of certain levels within both the Department and NVETR as infringement officers; and

•

specifying that the Secretary is the relevant chief executive for Department infringement officers and each NVETR Commissioner is the relevant chief executive for NVETR infringement officers.

Clause 86 - Enforceable undertakings

This clause provides that the provisions of this Bill are enforceable under Part 6 of the Regulatory Powers Act. Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Subclause 86(2) specifies who are the authorised persons and which are relevant courts for the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to this Bill.

Clause 87 - Injunctions

This clause provides that the provisions of this Bill are enforceable under Part 7 of the Regulatory Powers Act. Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Subclause 87(2) specifies who are authorised persons and which are the relevant courts for the purposes of Part 7 of the Regulatory Powers Act.

This clause enables injunctions (including interim injunctions) under Part 7 of the Regulatory Powers Act to be used to restrain a person from contravening a provision of this Bill, or to compel compliance with a provision of this Bill. This provides an additional tool with which the Commonwealth can enforce compliance with the Bill.

Clause 88 - Appointment of investigators

This clause deals with the appointment of investigators and provides that the Secretary and a NVETR Commissioner may in writing appoint Departmental investigators and NVETR investigators respectively.

Prior to making an appointment, the appointer must be satisfied that the person has appropriate and suitable knowledge or experience to properly exercise the powers of an investigator. For example, the person must understand their legal rights and obligations and the scope and limits of their powers. The person must also understand the functions and duties of an investigator. This is to ensure that investigators are able to carry out their role properly and effectively.

The clause also specifies that an investigator must comply with any directions of the appointer in exercising the powers of an investigator. This is also intended to ensure that investigators carry out their functions and responsibilities appropriately.

Clause 89 - Delegation of regulatory powers

This clause enables the Secretary and a NVETR Commissioner to be able to, in writing, delegate their functions under the Regulatory Powers Act as it applies in relation to this Bill. The NVETR Commissioner is also able to delegate the power under this Bill to appoint investigators.

The power to delegate ensures that regulatory powers under the Bill will be able to be carried out efficiently and effectively in an operational environment where the Secretary or a NVETR Commissioner may not have the capacity to undertake all regulatory functions and powers conferred upon them by this Bill.

In exercising powers or performing functions under a delegation, a person must comply with any directions of the delegator (subclause (3)). Subclause 89(4) clarifies that a person must not exercise powers or perform functions under a delegation under this clause in relation to an infringement notice given by the person.

These limitations are to ensure that there are appropriate constraints on the delegate's exercise of the regulatory powers.

Clause 90 - Other enforcement action

This clause clarifies that taking action under this Part 8 of the Bill does not prevent or limit the taking of action under any other provision of the Bill. This is to reserve rights in respect of other enforcement action which might also be available.

Part 9 - Use of information

Division 1 of this Part 9 provides for the use and disclosure of VET information in certain circumstances. The sharing of VET information is important for the efficient administration of this Bill and to assist with enabling effective compliance action to be taken where appropriate. Division 2 sets out offences in relation to the misuse of any personal information.

Division 1 - Authorised Use and Disclosure of Information

Clause 91 - Use and disclosure by Commonwealth officers

This clause enables the use and disclosure of VET information by a Commonwealth officer for the purposes of this Bill and also the Higher Education Support Act 2003 (HESA). It is necessary to also provide for the use and disclosure of information given under HESA since often it may be unclear if information has been collected under this Bill or under HESA, having regard to the overlap in providers, students and that repayment of VET student loans continues to be managed in accordance with HESA.

VET information is defined in clause 6 of this Bill to mean any information obtained or created for the purposes of this Bill. This means the information may also include personal information.

A Commonwealth officer is similarly defined in clause 6 of this Bill. It has the same meaning as provided for in subsection 179-15(2) of the HESA.

Clause 92 - Use and disclosure by certain VET officers

This clause deals with the use and disclosure of VET information by certain VET officers. Clause 6 of this Bill defines a VET officer to include a Commonwealth officer, an officer of a Tertiary Admission Centre, an officer of an approved course provider or an officer of a tuition assurance scheme operator that is a party to an approved tuition assurance agreement.

Subclause 92(1) enables VET officers to use VET information in their capacity of officers of either a Tertiary Admission Centre, an approved course provider or a tuition assurance scheme operator that is a party to an approved tuition assurance agreement.

Subclause 92(2) enables a VET officer to disclose VET information to another VET officer if the officer believes on reasonable grounds that the disclosure is reasonably necessary for the purposes of exercising powers, or performing functions or duties, in relation to this Bill.

The powers to use and disclose information under this clause 92 are important to ensure the efficient administration of the Bill. The sharing of the information ensures the accuracy of the information each respective officer is relying upon in the exercise of their respective powers. For example, under the VET FEE-HELP assistance scheme, information provided by a provider to a tuition assurance scheme operator was not always accurate and up to date which on occasions resulted in not all the provider's students being covered by tuition assurance. This clause will ensure the same information can be shared between the Commonwealth, tuition assurance scheme operators as well as providers to enhance the accuracy of the information and integrity of the VET student loans program.

The requirement for the VET officer to reasonably hold the belief that the information is reasonably necessary to be disclosed constrains the exercise of the power to proper and lawful disclosures consistent with the Bill.

Clause 93 - Disclosure to certain agencies, bodies or persons

This clause enables the Secretary to disclose VET information to certain specified agencies, bodies or persons if the Secretary believes on reasonable grounds that the disclosure is reasonable necessary for the purposes of the exercise of the powers, or the performance of the functions or duties of those agencies, bodies or persons.

Such agencies, bodies or persons are:

•

TEQSA;

•

the National VET Regulator;

•

an agency or authority of a State or Territory responsible for regulating vocational education or vocational training in the State or Territory; and

•

the Australian Competition and Consumer Commission.

The sharing of information with these bodies by the Secretary is critical not just for the efficient administration and compliance action taken for the purposes of this Bill but also in relation to the functions and duties of those bodies. Each of these bodies have an important role to play in ensuring the integrity and quality of the vocational education and training in Australia and consequently in the protection of the students' interests. For example, compliance with the Standards for NVR Registered Training Organisations has been a requirement that must be met by providers under the VET FEE-HELP scheme and will continue to be a requirement under the new program. In order to monitor compliance with these Standards, it is essential the Secretary be able to disclose relevant information to the National VET Regulator.

Clause 94 - Disclosure for purposes of law enforcement

This clause allows the Secretary to disclose VET information to certain specified agencies if the Secretary believes on reasonable grounds that the disclosure of the information is necessary for an enforcement related activity. This term is defined in the Privacy Act 1988 and includes, for example:

•

the enforcement of the criminal law; or

•

the enforcement of a law imposing a pecuniary penalty; or

•

the protection of the public revenue.

The bodies or agencies to which the Secretary may disclose VET information under this clause are: a Department, agency or authority of the Commonwealth, a State or a Territory; or an enforcement body (as defined in the Privacy Act 1988). Similar to the comments under clause 94 above, it is imperative that the Secretary be able to share information with these bodies to ensure the integrity and quality of the vocational education and training in Australia is protected; the protection of such interests supports the interests of the students. This outcome is assisted by the sharing of information to assist the Commonwealth (and where relevant, a State or Territory) to take action against course providers that have engaged in conduct that is in breach of a law or criminal offence.

Clause 95 - Disclosure to other bodies for permitted purposes

This clause enables the Secretary to disclose VET information to certain specified agencies, bodies or persons for any of the following permitted purposes:

•

improving the provision of vocational education and training; and

•

research relating to the provision of vocational education and training, including research relating to quality assurance or planning the provision of vocational education and training.

The agencies, bodies and persons to whom such disclosure is allowed are:

•

a State or Territory agency;

•

an approved course provider;

•

a person who performs services for or on behalf of an approved course provider;

•

a body or association determined, by legislative instrument, by the Minister for the purposes of this paragraph.

However, if the Secretary wishes to disclose information under this clause that has been provided by an approved course provider, the Secretary must obtain the approved course provider's consent prior to the disclosure, unless the information is being disclosed to a State or Territory agency.

Clause 96 - Disclosure of publicly available information

This clause makes clear that VET information may be disclosed if such information has already been lawfully made publicly available.

Clause 97 - Commissioner may disclose VET information

This clause enables the Commissioner of Taxation to disclose VET information to a Commonwealth officer or an officer of a Tertiary Admission Centre if the Commissioner believes on reasonable grounds that the disclosure will enable or assist the officer to exercise powers, or perform functions or duties in relation to this Bill.

This clause has effect despite anything in an Act of which the Commissioner has the general administration.

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 disclosure of personal information. Clause 97, in substance, replicates section 179-25 of HESA which provides for a similar provision regarding the defendant's evidential burden.

Clause 98 - This Division does not limit use or disclosure of VET information

This clause makes clear that this Division 1 of Part 9 does not limit the disclosure or use of VET information. For example, the use or disclosure of VET information may also be authorised in other circumstances such as in accordance with the Privacy Act 1988.

Division 2 - Offences for misuse of personal information

Division 2 sets out the offences under the Bill in relation to the misuse of personal information.

Clause 99 - VET officers

This clause provides that if a VET officer obtains or generates personal information in his or her capacity as a VET officer and uses the information or discloses the information to another person, that person commits an offence punishable by a maximum of 2 years imprisonment. This penalty is consistent with other Commonwealth legislation for the same or similar offence, including for example, HESA.

It is a defence to the above provision if the use or disclosure of the personal information is authorised or required by a law of the Commonwealth or by a law of a State or Territory listed in the Rules. In order to rely on this exception, the defendant bears the evidential burden pursuant to subsection 13.3(3) of the Criminal Code.

Clause 100 - Use of personal information for other purposes

Subclause 100(1) makes it an offence to use personal information disclosed under clause 95 for a purpose which is not a permitted purpose.

Subclause 100(3) also makes it an offence if a person discloses personal information under clause 95 and the disclosure is either not for a permitted purpose and/or the disclosure is to a person who is not an officer or employee of, or engaged by, the agency, body or person to whom the information was disclosed under section 95.

Both the above offences are punishable by a maximum of 2 years imprisonment. This penalty is consistent with other Commonwealth legislation for the same or similar offence, including for example, HESA.

An exception to both these offences is where the use or disclosure is authorised or required by a law of the Commonwealth, or by a law of a State or Territory listed in the Rules. In order to rely on this exception, the defendant bears the evidential burden pursuant to subsection 13.3(3) of the Criminal Code.

Clause 101 - Unauthorised access to, or modification of, personal information

This clause provides that unauthorised access to, or modification of personal information, which is VET information is an offence with a maximum penalty of 2 years imprisonment. This penalty is consistent with other Commonwealth legislation for the same or similar offence, including for example, HESA.

For the offence to occur under this provision, the following must also apply:

•

the personal information must be held on a computer to which access is restricted by an access control system associated with a function of the computer;

•

the person must have intended to cause the access or modification (and the person knew it was unauthorised); and

•

the information must have been held on a computer of (or on behalf of) an approved course provider or a Tertiary Admission Centre. Absolute liability applies to this last requirement.

Part 10 - General provisions

Clause 102 - Communicating electronically

This clause provides that the Rules may set out requirements for and in relation to electronic communications between:

•

the Commonwealth and students;

•

the Commonwealth and approved course providers; and

•

students and approved course providers.

Failure by a course provider to comply with any requirements provided for in the Rules in relation to electronic communications gives rise to a maximum civil liability of 60 penalty units.

The clause is intended to facilitate appropriate, consistent and reliable electronic communications to ensure that information is able to be conveyed and received effectively.

Clause 103 - Secretary may publish information

This clause allows the Secretary to publish information, if the Secretary is satisfied that the information would assist a student to decide whether or not to enrol in a course provided by an approved course provider or assist a student in relation to his or her eligibility for a VET student loan or would encourage compliance by an approved course provider with this Bill.

The information to be published may include personal information but not if it is about a student. Personal information could only be published if the Secretary was satisfied that one of the criteria in subclause 103(1) was met. For example, personal information may be published if a penalty notice was issued to an executive officer of an approved course provider.

Without limiting the Secretary's right under this clause to publish information, subclause 103(2) sets out non-exclusive examples of information which the Secretary may publish including student enrolment numbers and forecasts, completion rates for students, fee arrangements, courses offered and modes of delivering the courses and any compliance action taken under this Bill. Compliance action would include, for example, the issuing of a notice to suspend a provider's approval. The publication of such information encourages transparency and accountability and enables students to be better informed in their decision-making regarding which course to study and with which provider.

Subclause 103(4) enables the Secretary to require the approved course provider to release or publish information in relation to the provider, which the Secretary would otherwise be able to publish under this clause. Contravention of this subclause attracts a maximum civil penalty of 60 penalty units.

Clause 104 - Secretary may require a person to provide information about compliance with this Act

This clause provides that the Secretary may, by written notice, require a person, who the Secretary believes on reasonable grounds has information or documents relevant to determining whether this Bill has been complied with, to give the information or documents to the Secretary. This provision may be used, for example, to require a student or a tuition assurance scheme operator to produce information or documents relevant to determining compliance by the provider with this Bill.

The information must be provided in a form (if any) approved by the Secretary and in accordance with other requirements specified by the Secretary.

Subclause 104(3) makes clear that the Secretary cannot rely on this clause to request the provision of information by a course provider that the provider is required to give to the Secretary under any other provision of the Bill. For example, clause 53 provides for a similar 'notice to produce' clause that applies specifically to approved course providers.

Contravention of this clause is a both an offence of strict liability as well as a civil penalty provision; both have a maximum penalty of 60 penalty units.

Strict liability for this offence is appropriate (having regard to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers) because the offence:

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is subject to an infringement notice scheme (see clause 85);

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is punishable by a fine of up to 60 penalty units and it is not punishable by imprisonment; and

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will enhance the effectiveness of the enforcement regime under this Bill in deterring such conduct.

Clause 105 - Secretary may use computer programs to make decisions

In practice, a large number of basic administrative decisions under the Bill will be made by software on computer systems operated by the Department of Education and Training, for example, decisions on loan approvals, and decisions on when and in what amounts loan payments will be made to approved course providers for their students.

This clause provides that the Secretary may arrange for the use, under the Secretary's control, of computer programs for any purposes for which the Secretary may make decisions under the Bill. A decision made under such an arrangement is, for the purposes of the Bill, taken to be a decision made by the Secretary.

Clause 106 - Giving false or misleading information

This clause provides that a person is liable for a civil penalty if the person provides false or misleading information or documents under this Bill or if the person omits any matter or thing without which the information or document is misleading. This provision would apply, for example, to information provided by a course provider to a tuition assurance scheme operator.

It will not be a contravention of this clause if the information or document provided is not false or misleading in a material particular. False or misleading information or documents relating to a material particular means false or misleading information or documents which are not trivial or inconsequential.

The maximum civil penalty for a contravention is 240 penalty units, which reflects the serious nature of this contravention and the need to deter persons from such conduct. It is important to ensure persons (including students, tuition assurance scheme operators, the Minister and Secretary) have access to information that is relevant, reliable and correct for the effective administration of this Bill.

A note to this clause provides a reminder that a person may commit an offence if the person provides false or misleading information or documents - see sections 137.1 and 137.2 of the Criminal Code.

Clause 107 - Verifying tax file numbers

This clause enables the Secretary to verify tax file numbers of students with a VET student loan with the Commissioner of Taxation. Similarly, the Commissioner may at any time, give the Secretary any information necessary to ensure that the Secretary has the correct tax file number for the student. This clause is relevant to the Secretary's discretion not to pay a student loan if the student has not given the student's tax file number (see clause 20) - it is critical to the integrity of this program that the Secretary be able to verify the accuracy of a student's tax file number.

Clause 108 - Contravening offence and civil penalty provisions

This clause clarifies that, if a provision of this Bill provides that a person contravening another provision of this Bill (conduct provision) commits an offence or is liable to a civil penalty, then for the purposes of this Bill, and the Regulatory Powers Act (to the extent it relates to this Bill), a reference to a contravention of an offence or civil penalty provision includes a reference to a contravention of the conduct provision. Therefore, the person would have contravened both the conduct provision and the offence or civil penalty provision.

This is to avoid having to expressly provide in each instance that a contravention of the offence or civil penalty provision is also a contravention of the conduct provision.

Clause 109 - Certain references to course provider include references to agent

This clause provides that a reference in a civil penalty provision to a course provider (however described) includes a reference to a person acting on behalf of the course provider.

This provision extends the application of the civil penalty provisions to persons such as agents or associates who may be acting for a financial gain or other incentive on behalf of the VET provider. This ensures penalties may still be imposed against such persons despite clause 49 which bans providers from using brokers or agents in relation to VET student loans.

This clause is intended to operate inclusively, so, depending on the circumstances, the civil penalty provisions could apply to either or both the VET provider, or a person acting on behalf of the course provider.

Clause 110 - Continuing application of Act to certain persons

This clause provides that the Bill continues to apply in relation to a body that was approved as an approved course provider as if the body were still an approved course provider.

The continued application of the Bill is intended for the purposes of dealing with or resolving any matter that arose during, or that relates to, the period when the body was approved as an approved course provider. For example, this provision would enable the Secretary to require an audit of the provider to assist with assessing whether students of the provider were genuine and in relation to the possible re-crediting of students' loans.

Subclauses 110(3) and (4) apply similar provisions to a person or body who was a tuition assurance scheme operator. Again, these continued application provisions ensure such operators may continue to be responsible in respect to matters that arose during, or that relates to, the period when the body was such an operator.

Clause 111 - No entitlement to future rights

This clause provides that neither approval, nor payment of any amount, of a VET student loan requires the Commonwealth to ensure that: a student has access to a course; or a course is delivered in a particular way; or addresses particular content or skills; or results in a particular qualification.

This clause further provides that neither approval, nor payment of any amount, of a VET student loan requires any other loan to be approved or any other loan amount to be paid; or prevents any amendment of this Bill or the Rules from having full effect from the commencement of the amendment.

This provision makes clear that the Commonwealth does not assume any responsibility to the student or any other person, in respect of the provision or delivery of a course, on account of approving or paying the loan for the student. Moreover, the Commonwealth does not make any representation, promise or guarantee about whether any future loans may be approved or paid. Nor is the Commonwealth in any way prevented from or limited in amending this Bill (including any Act or instrument encompassed in the definition of this Act in the Bill).

Clause 112 - Protection from civil actions

This clause provides that the Secretary, an APS employee in the Department and a consultant engaged by the Commonwealth to perform work in relation to the Bill, are protected from civil actions where they have been acting in good faith in performing or exercising their functions and powers under this Bill.

This clause protects the persons described above from being liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith, in the performance or purported performance of their functions or powers under the Bill. For example, this provision will protect the Secretary for a claim for defamation for publishing information in accordance with clause 103.

Clause 113 - Compensation for acquisition of property

This clause is intended to ensure, for the purposes of section 51(xxxi) of the Constitution, that if the operation of this Bill results in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person. If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction.

This clause defines "acquisition of property" and "just terms" by reference to the Constitution.

Clause 114 - Delegations

This clause provides that the Secretary may, in writing, delegate to an APS employee (as defined in section 2B of the Acts Interpretation Act 1901) all or any of the powers of the Secretary under this Bill.

Note that this provision allows the Secretary to delegate his or her powers under the Acts or instruments listed in the definition of this Act in the Bill.

In exercising powers under the delegation, the delegate is required to comply with any directions of the Secretary.

Clause 115 - Appropriation

Clause 115 provides that the amounts of VET student loans payable by the Secretary under this Bill are payable out of the Consolidated Revenue Fund, which is appropriated for those purposes.

Clause 116 - Rules

This clause provides that the Minister may, by legislative instrument, make rules providing for matters that are required or permitted by this Bill to be provided or are necessary or convenient to be provided in order to carry out or give effect to this Bill.

The first note to this clause reminds the reader about the definition of this Act in clause 6 which includes, amongst other things, the Rules.

The second note to this clause makes clear the Rules may make different provision with respect to different matters or different classes of matters. For example, the Rules may provide for different requirements for different kinds of approved course providers.

Without intending to limit the scope of the power to make Rules, subclauses 116(2) to (7) set out matters that may be provided for in the Rules. These are described below.

The Rules may provide for amounts determined by, or worked out in accordance with the Rules to be indexed using the method set out in Part 5-6 of the HESA (subclause (2)). This will enable, for example, amounts payable under the Bill to be indexed consistently with amounts of assistance to students payable under the HESA.

If the Bill permits or requires a decision to be made, the Rules may provide for matters that the decision-maker may or must (as specified in the Rules) have regard to in making the decision (subclause (3)). For example, clause 25 requires that the Secretary must be satisfied (amongst other things) that a body is a 'fit and proper' person to be approved as an approved course provider. This subclause 116(3) will enable the Rules to provide for matters the Secretary may or must consider in deciding if a person is 'fit and proper'.

If this Bill requires or permits the Rules to provide for a matter, the Rules may provide for the matter to be determined by the Secretary (subclause (4)). This will enable the Rules to authorise the Secretary to form a view about a particular matter on which Rules can be made (e.g. "unacceptable conduct" by a provider for clause 71).

Subclause 116(5) provides that despite subsection 14(2) of the Legislation Act 2003, the Rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time. Such Rules would ordinarily not incorporate another instrument or written document unless it is publicly available.

The Rules may provide for the collection and recovery of approved course provider charge (within the meaning of the VET Student Loans (Charges) Bill 2016). If such a Rule is provided for, this will mean that a provider will not comply with the Bill if the provider fails to pay the approved course provider charge (subclause (6)).

Subclause 116(7) provides that the Rules must specify a cap on the total amount of the VET student loans that can be approved for the first calendar year in which this Bill commences and for each of the two following calendar years. Note in respect to this provision, the power of the Secretary in clause 34 to impose conditions on a provider's approval which may include, for example, imposing a limit on the loan amounts that can be paid to a provider.