Explanatory Memorandum
(Circulated by authority of the Minister for Education, Science and Training the Hon Dr Brendan Nelson MP)Outline, financial impact and notes on clauses
Outline
This Bill will amend the Higher Education Funding Act 1988 (HEFA) to:
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- Set a new maximum aggregate funding level in section 17 of HEFA for the year 2004 to reflect minor adjustments including additional funds for over enrolments and a minor reduction for Regional Loading.
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- Set new maximum aggregate funding amounts for certain grants in section 23C of HEFA for the year 2004 to reflect an increase in funds for the Regional Protection Fund, funding for the enrichment of indigenous education between Batchelor Institute of Indigenous Tertiary Education and Charles Darwin University and other minor funding variations.
The Bill will amend the Higher Education Support Act 2003 to:
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- Allow higher education providers to set different student contribution amounts and tuition fees to be paid by students who are to commence a particular course of study in a particular year (ss 19-86, 19-87, and 19-90);
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- Amend provisions relating to:
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- the remission of HECS-HELP debts for persons undertaking Work Experience in Industry (ss 36-22, 79-5, 137-5, and 206-1);
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- the definition of equivalent full time student load (s.73-10); and
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- the notification of tax file numbers by students (s.187-5).
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- Set new maximum aggregate funding levels for the Commonwealth Grant Scheme under section 30-5 to reflect:
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- a technical adjustment to transfer funding for the Institute of Advanced Studies from this section to Other Grants under section 41-15. Funding to national institutes is provided from the Other Grants section and funding to the Institute was previously included with funding to the Australian National University;
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- a separate adjustment to reinstate the HECS and research components of Workplace Reform Fund for the years 2005-07; and
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- a minor reduction for Regional Loading funding.
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- Set new maximum aggregate funding levels for Other Grants under section 41-15 to reflect:
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- a technical adjustment to allow the transfer of funding for the Institute of Advanced Studies as described above;
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- funding for the enrichment of indigenous education between Batchelor Institute of Indigenous Tertiary Education and Charles Darwin University; and
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- other minor funding variations for 2005-2007.
The Bill will also amend the Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003 to:
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- Simplify the transitional arrangements which relate to Commonwealth supported students at the University of Notre Dame Australia. Following this amendment, transitional arrangements will be managed through the Commonwealth Grant Scheme Guidelines (Part 4 of Schedule 1); and
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- Add a transitional provision to provide the Minister with a discretion to approve funding increases under the Commonwealth Grants Scheme in the first year (2005) of implementation, where a higher education provider (HEP) has met some, but not all, of the requirements of the National Governance Protocols by the specified date in 2004 and the Minister is satisfied that the HEP has taken all reasonable steps within its power to meet the requirements of the Protocols and has met the workplace relations requirements (item 21A of Schedule 1).
Financial impact
In relation to the Higher Education Funding Act 1988, the Bill:
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- increases the overall appropriation by $11.047 million in 2004.
In relation to the Higher Education Support Act 2003 and the Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003, the Bill:
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- increases the overall appropriation by $157.980 million for the period 1 January 2005 to 31 December 2007.
Notes on clauses
Provides for the Act to be cited as the Higher Education Legislation Amendment Act 2004.
Provides for the Act to commence on the day on which it receives the Royal Assent.
Provides that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule and that any other item in a Schedule has effect according to its terms.
Schedule 1 - Higher Education Funding
Higher Education Funding Act 1988
Section 17 sets the maximum aggregate funding levels for operating grants that may be paid to institutions under sections 15 and 16. Item 1 amends section 17 to vary the maximum aggregate funding level for 2004 to reflect a revised estimate for overenrolments and a small downward adjustment for Regional Loading.
Subsection 23C(2) of the Act limits the total funds available for grants that may be approved under sections 21, 21B, 22, 23, 23A and 23B of the Act for specified years. Item 2 amends subsection 23C(2) to vary the funding limit for 2004 to reflect an increase in funding for the Regional Protection Fund, funding for the enrichment of indigenous education between Batchelor Institute of Indigenous Tertiary Education and Charles Darwin University and other minor funding variations.
Higher Education Support Act 2003
Amends paragraphs 30-5(1)(a), (b) and (c) to vary the level of maximum grants under the Commonwealth Grant Scheme (Part 2-2) for the years 2005-2007 to reflect a transfer of funding for the Institute of Advanced Studies from the Commonwealth Grant Scheme to Other Grants (Part 2-3); an increase to the appropriation to make it consistent with the forward estimates adjusted to account for the inclusion of all elements of Workplace Reform Funding and a minor reduction for Regional Loading funding.
Amends the table in subsection 41-5(1) to vary the maximum payments for Other Grants under Part 2-3 for the years 2005-2007 to reflect the transfer of funding for the Institute of Advanced Studies as described for item 2; funding for the enrichment of indigenous education between Batchelor Institute of Indigenous Tertiary Education and Charles Darwin University for 2005 and other minor funding variations for 2005-2007.
Schedule 2 - Units wholly consisting of work experience in industry
Higher Education Support Act 2003
Inserts a new section 36-22 to make provision for higher education providers to repay amounts for units wholly consisting of work experience in industry in special circumstances.
Proposed subsection 36-22(1) provides that section 36-22 applies to a person if:
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- the person has been enrolled in a unit of study as part of a course of study with a higher education provider as a Commonwealth supported student; and
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- the unit wholly consists of work experience in industry; and
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- the person has not completed the requirements for the unit during the period during which the person undertook (or was to undertake) the unit; and
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- the provider is satisfied that special circumstances apply to the person; and
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- the person applies in writing to the provider for either or both the repayment of any amounts that the person paid in relation to his/her student contribution amount for the unit or the remission of the person's HECS-HELP debt in relation to the unit; and
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- either the application is made before the end of the application period under subsection 36-22(5) or (6); or the provider waives the requirement that the application be made before the end of that period on the ground that it would not be (or was not) possible for the application to be made before the end of that period.
Proposed subsection 36-22(2) provides that the provider must pay to the person an amount equal to the payment (or the sum of the payments) that the person made in relation to his/her student contribution amount for the unit and pay to the Commonwealth an amount equal to any HECS-HELP assistance to which the person was entitled for the unit.
Proposed subsection 36-22(3) provides that, for the purposes of paragraph 36-22(1)(d), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that are beyond the person's control, do not make their full impact on the person until on or after the census date for the unit and make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook (or was to undertake) the unit.
Proposed subsection 36-22(4) provides that if the Student Learning Entitlement Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 79-5(1)(a), (b) or (c), any decision of a higher education provider under subsection 36-22(3) must be in accordance with any such guidelines.
Proposed subsection 36-22(5) provides that if the person applying under paragraph 36-22(1)(e) has withdrawn his/her enrolment in the unit and the higher education provider gives notice to the person that the withdrawal has taken effect, then the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.
Proposed subsection 36-22(6) provides that if subsection 36-22(5) does not apply, the application period is the period of 12 months after the end of the period during which the person undertook (or was to undertake) the unit.
Proposed subsection 36-22(7) provides that if the application is made before the end of the application period under subsection 36-22(5) or (6) or the higher education provider waives the requirement that the application be made before the end of that period on the ground that it would not be (or was not) possible for the application to be made before the end of that period, then the provider must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision on the application.
Proposed subsection 36-22(8) has the effect of providing that notices under section 36-22 must include a statement of the reasons for the decision.
Amend the note subsection 79-5(2) and insert a new table item 1A in the table of reviewable decisions in section 206-1 to reflect the insertion of new section 36-22 by item 1.
Inserts a new subsection 137-5(5) to reflect the insertion of section 36-22 by item 1.
Schedule 3 - Student cohorts
Higher Education Support Act 2003
Items 1, 4, 5, 8 to 14, 16, 19 and 20
Amend subparagraph 16-30(1)(b)(ii), subsection 19-95(1), paragraph 19-95(2)(a), subsection 33-25(2), paragraph 36-20(a), subsection 36-40(2), sections 36-45 and 36-50, subsection 36-55(2), subparagraph 90-1(f)(ii) and paragraph 93-1(a) to reflect the insertion of sections 19-87 and 19-88 by item 2 and the repeal and substitution of section 19-90 and the insertion of section 19-91 by item 3.
Inserts new sections 19-87 and 19-88 dealing with the determination of all student contribution amounts for places in units and the determination of student contribution amounts for places in units for student cohorts, as part of the contribution and fee requirements for higher education providers.
Proposed subsection 19-87(1) provides that section 19-87 applies to a unit of study that a higher education provider provides or proposes to provide during a year and that may form part of a course of study in which the provider may enrol students as Commonwealth supported students.
Proposed subsection 19-87(2) provides that the provider must determine a student contribution amount for a place in the unit that is to apply to all students who may enrol in the unit during the year.
Proposed subsection 19-88(1) provides that section 19-88 applies to a unit of study that a higher education provider provides or proposes to provide as part of a student cohort's course of study and in which the provider may enrol students as Commonwealth supported students.
Proposed subsection 19-88(2) provides that, in addition to the amount determined under section 19-87, the provider may determine a student contribution amount for a place in the unit that is only to apply to students in that student cohort who may enrol in the unit as part of the cohort's course of study. However, the provider must determine the amount in the year before the cohort commences its course of study.
Proposed subsection 19-88(3) provides that the provider may only determine one amount for the unit to apply to students in that student cohort.
Proposed subsection 19-88(4) provides that the provider may also determine conditions for that student cohort that are to apply in relation to the student contribution amount for a place in the unit.
Repeals section 19-90 and inserts new sections 19-90 and 19-91 dealing with the determination of tuition fees for all students and the determination of tuition fees for students in student cohorts, as part of the contribution and fee requirements for higher education providers.
Proposed subsection 19-90(1) provides that section 19-90 applies to a unit of study that a higher education provider provides or proposes to provide during a year.
Proposed subsection 19-90(2) provides that the provider must determine a fee for the unit that is to apply to all students who may enrol in the unit during the year.
Proposed subsection 19-90(3) provides that if the unit can form part of more than one course of study, the provider may determine under subsection 19-90(2) a different fee for the unit for each such course to apply to students who may enrol in the unit as part of that course.
Proposed subsection 19-91(1) provides that section 19-91 applies to a unit of study that a higher education provider provides or proposes to provide as part of a student cohort's course of study.
Proposed subsection 19-91(2) provides that, in addition to the amount determined under section 19-90, the provider may determine a fee for the unit that is only to apply to students in that student cohort who may enrol in the unit as part of the cohort's course of study. However, the provider must determine the fee in the year before the cohort commences its course of study.
Proposed subsection 19-91(3) provides that the provider may only determine one fee for the unit to apply to students in that student cohort.
Proposed subsection 19-91(4) provides that the provider may also determine conditions for that student cohort that are to apply in relation to the fee for the unit.
Inserts new section 19-97 dealing with information on student contribution amounts for places and tuition fees for student cohorts.
Proposed subsection 19-97(1) provides that if the provider has determined (under section 19-88 or 19-91) student contribution amounts for places in units, or tuition fees, to apply to students in student cohorts, the provider must publish, and make publicly available sufficient information to enable a person in a student cohort to work out his/her student contribution amount and tuition fee for each unit of study that the provider provides or is to provide as part of the cohort's course of study and any conditions that are to apply in relation to the amount or fee for each unit of study for each student cohort.
Proposed subsection 19-97(2) provides that the information mentioned in subsection 19-97(1) for a particular unit must be published and made publicly available by the date specified in the Higher Education Provider Guidelines in the year preceding the year in which the student cohort commences its course of study.
Repeals sections 19-100 and 19-105 and substitutes new sections 19-100, 19-101, 19-102 and 19-105 dealing with the limits on fees for courses of study and defining the meaning of the terms student cohort, fee and tuition fee.
Proposed section 19-100 provides that a higher education provider must not charge a person a fee for a course of study that exceeds the sum of the person's tuition fees for all of the units of study undertaken by the person as part of the course.
Proposed section 19-101 defines the meaning of a student cohort, in relation to a particular course of study of which a unit of study forms a part, as the group of all of the students who commence the course in a particular year with a particular higher education provider.
Proposed section 19-102 defines the meaning of fee.
Proposed subsection 19-102(1) provides that a fee includes any tuition, examination or other fee payable to a higher education provider by a person enrolled with (or applying for enrolment with) the provider.
Proposed subsection 19-102(2) provides that a fee may also include any fee payable to the provider in respect of the granting of a higher education award.
Proposed subsection 19-102(3) provides that a fee does not include a fee that is:
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- payable in respect of an organisation of students or of students and other persons; or
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- payable in respect of the provision to students of amenities or services that are not of an academic nature; or
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- payable in respect of residential accommodation; or
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- imposed in accordance with the Commonwealth Grant Scheme Guidelines for the imposition of fees in respect of overseas students; or
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- payable in respect of studies (other than an enabling course) that are not permitted to be undertaken for the purpose of obtaining a higher education award; or
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- determined, in accordance with guidelines issued by the Minister, to be a fee of a kind that is incidental to studies that may be undertaken with a higher education provider and meets the criteria specified in the Commonwealth Grant Scheme Guidelines; or
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- a student contribution amount payable in respect of a student.
Proposed subsection 19-102(4) provides that the definition of fee in section 102 does not apply for the purposes of sections 104-50 and 225-25.
Proposed section 19-105 defines a person's tuition fee for a unit of study as the fee determined under section 19-91 for the student cohort if all of the following apply:
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- the unit forms part of a course of study with a higher education provider;
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- the person commenced that course of study in a particular student cohort;
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- the provider has determined, under section 19-91, a fee for the unit that applies to students in that cohort; and
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- the person satisfies any conditions that apply to the cohort under section 19-91 in relation to the fee for the unit.
If all of these conditions do not apply and a different fee for the unit has been determined for each course of study in accordance with subsection 19-90(3), a person's tuition fee is the fee determined for the unit for the person's course of study and, in all other cases, it is the fee determined under subsection 19-90(2).
Repeals subsection 36-55(1) dealing with tuition fees for units of study and substitutes a new subsection which has the effect of providing that a higher education provider must not determine a tuition fee for a unit of study that is less than the highest student contribution amount that the provider would charge a person who is a Commonwealth supported student in relation to the unit or, if a higher amount is specified in the Tuition Fee Guidelines, that higher amount.
Amends subsection 36-55(3) to have the effect of providing that if a person is enrolled in study with a higher education provider on a non-award basis and could have enrolled in that study as a unit of study if the enrolment were not on a non-award basis, then the provider must not charge, as the person's fees for the study, amounts that in total are less than the amount that would be the person's student contribution amount if the person had enrolled in the study as a unit of study and the person were a Commonwealth supported student in relation to the unit.
Repeals section 87-1 and replaces it with a new section explaining what Part 3-2 of Chapter 3 dealing with HECS-HELP assistance is about.
Section 93-5 deals with student contribution amounts in relation to HECS-HELP assistance. Item 21 repeals subsection 93-5(1) and inserts a new subsection which provides that a person's student contribution amount for a unit of study is the amount worked out as follows:
The person's student contribution amount for a place in the unit * The EFTSL value of the unit
where the person's student contribution amount for a place in the unit is:
- (a)
- if all of the following apply:
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- the unit forms part of a course of study with a higher education provider;
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- the person commenced that course of study in a particular student cohort;
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- the provider has determined, in accordance with section 19-88, a student contribution amount for a place in the unit that applies to students in that cohort; and
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- the person satisfies any conditions that apply to the cohort under section 19-88 in relation to the student contribution amount for a place in the unit;
the amount determined under section 19-88 for the cohort; and
- (b)
- in all other cases-the student contribution amount for a place in the unit determined under subsection 19-87(2).
Repeals subsection 93-5(2) and inserts a new subsection which provides that a person's student contribution amount for a place in the unit must not exceed the maximum student contribution amount for a place in the unit, to reflect the changes made by item 21.
Amends subsection 93-5(3) to have the effect of providing that a person's student contribution amount for a unit of study is nil if the person undertakes the unit as part of an enabling course. Subsection 93-5(3) has effect despite subsection 93-5(1) [see item 21].
Amend section 93-10 to reflect the insertion of sections 19-87 and 19-88 by item 2, the repeal and substitution of section 19-90 and the insertion of section 19-91 by item 3 and the amendments to section 93-5 made by items 21 to 23.
Repeals subsection 93-15(1) and substitutes a new subsection which provides that an up-front payment, in relation to a unit of study for which a person is liable to pay his/her student contribution amount, is a payment of part of the student's student contribution amount for the unit, other than a payment of HECS-HELP assistance under Part 3-2 of Chapter 3.
Repeals subsection 93-15(3) and inserts a new subsection which provides that a payment made in respect of a person is not an up-front payment to the extent that the payment (or if other up-front payments have already been made in respect of the person in relation to the unit, the sum of the payment and all of those other up-front payments) exceeds 80% of the person's student contribution amount for the unit.
Amend paragraphs 96-1(b), 96-5(1)(c) and 96-5(2)(b), subsection 96-5(3), paragraph 96-10(c) and section 96-10 to reflect the insertion of sections 19-87 and 19-88 by item 2, the repeal and substitution of section 19-90 and the insertion of section 19-91 by item 3 and the amendments to section 93-5 made by items 21 to 23.
Repeals section 101-1 and replaces it with a new section explaining what Part 3-3 of Chapter 3 dealing with FEE-HELP assistance is about.
Amend paragraph 107-1(a), subsections 107-5(1) and 107-10(2) and paragraphs 110-1(b) and 137-5(1)(b) to reflect the insertion of sections 19-87 and 19-88 by item 2, the repeal and substitution of section 19-90 and the insertion of section 19-91 by item 3 and the amendments to section 93-5 made by items 21 to 23.
Repeals subsection 137-5(3) and inserts a new subsection which provides that a HECS-HELP debt is taken to have been incurred by a person immediately after the census date for the unit, whether or not the Commonwealth has made a payment in respect of the person's student contribution amount for the unit.
Amends paragraph 137-10(1)(b) to reflect the insertion of sections 19-87 and 19-88 by item 2, the repeal and substitution of section 19-90 and the insertion of section 19-91 by item 3 and the amendments to section 93-5 made by items 21 to 23.
Repeals subsection 137-10(3) and substitutes a new subsection which provides that a FEE-HELP debt is taken to have been incurred by a person immediately after the census date for the unit, whether or not the Commonwealth has made a payment in respect of the person's tuition fee for the unit.
Amend paragraphs 169-15(1)(a) and (b), 169-15(2)(a) and (b), subsections 169-15(3), 169-20(1) and (2), paragraph 193-1(5)(b) and section 198-5 to reflect the insertion of sections 19-87 and 19-88 by item 2, the repeal and substitution of section 19-90 and the insertion of section 19-91 by item 3 and the amendments to section 93-5 made by items 21 to 23.
Amend the dictionary of defined terms in Schedule 1 by repealing the definitions of maximum student contribution amount per place and student contribution amount for a place and inserting new definitions of fee, maximum student contribution amount per place, student cohort and student contribution amount for a place to reflect the insertion of sections 19-87 and 19-88 by item 2, the repeal and substitution of section 19-90 and the insertion of section 19-91 by item 3 and the amendments to section 93-5 made by items 21 to 23.
Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003
Amend paragraph 1(1)(k) and item 3 of Schedule 1 to reflect the insertion of sections 19-87 and 19-88 in the Higher Education Support Act 2003 by item 2, the repeal and substitution of section 19-90 and the insertion of section 19-91 of the Higher Education Support Act 2003 by item 3 and the amendments to section 93-5 of the Higher Education Support Act 2003 made by items 21 to 23.
Schedule 4 - The University of Notre Dame Australia
Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003
Repeals Part 4 of Schedule 1 to remove the unintended consequences of the existing transitional provisions in relation to Commonwealth funded places at the University of Notre Dame Australia for the period 2005-2008. This will simplify the transitional arrangements relating to Commonwealth supported students at the University of Notre Dame Australia which will be managed through the Commonwealth Grant Scheme Guidelines.
Schedule 5 - Miscellaneous amendments
Higher Education Support Act 2003
Repeals subsection 73-10(1) and substitutes a new subsection to streamline the definition of Equivalent Full Time Student Load (EFTSL).
Inserts a new section 187-5 dealing with a student's obligation to notify his/her higher education provider of his/her tax file number when it is issued. If a student meets the tax file number requirements under paragraph 187-1(1)(b), the student must notify his/her tax file number to an appropriate officer of the higher education provider within 21 days from the day on which the Commissioner issues the tax file number to the student and the provider must be satisfied (in accordance with subsection 187-1(4)) that this number is a valid tax file number.
Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003
Corrects a drafting error in subparagraph 1(1)(f)(ii) of Schedule 1.
Amends paragraph 6(i) of Schedule 1 to reflect the repeal of paragraph 6(j) by item 5.
Repeals paragraph 6(j) of Schedule 1.
Repeals the note to item 6 of Schedule 1 to reflect the repeal of paragraph 6(j) by item 5.
Correct drafting errors in item 11A of Schedule 1.
Insert a new item 21A in Schedule 1 which provides for increases in transitional assistance in 2005 for higher education providers meeting certain requirements.
For the purposes of paragraph 33-15(1)(c) of the Higher Education Support Act 2003, the Minister is taken to be satisfied that the provider met the requirements in paragraph 33-15(1)(a) of that Act (as at a date in 2004 specified in the Commonwealth Grant Scheme Guidelines) if the grant year is the year 2005, the Minister is satisfied that the provider met at least some of those requirements by the specified date and the Minister is satisfied that the provider has taken all reasonable steps to meet the requirements.