Senate

Supplementary Explanatory Memorandum relating to sheet RV133

(Circulated by the authority of the Minister for Education, the Honourable Dan Tehan MP)

OUTLINE

The Government amendments in Sheet RV133 will amend the proposed completion rate provisions in section 36-13 of Schedule 4 to the Bill to address feedback from the public and higher education sector. The amendments will update section 36-13, to specify, for the purposes of determining if special circumstances apply to a person, the circumstances where a higher education provider will be satisfied that it is impracticable for a student to complete the requirements of a unit of study. These amendments will make it clear, on the face of the legislation, that no student will be penalised for circumstances beyond their control as a result of new section 36-13 of the Bill.

Financial Impact

The Government amendments in Sheet RV133 will have no financial impact.

Proposed Government amendments

Sheet RV133 - Commonwealth supported student

Amendment (1) of Sheet RV133 inserts new items 39A to 39E before item 40 of Schedule 4 to the Bill. Items 39A to 39E make various consequential amendments to sections 19-45, 19-50 and 19-60 of the Higher Education Support Act 2003 (HESA) to include references to new paragraph 36-13(2)(b). These amendments are required to reflect the changes being made by Amendment (3) (see below).

Amendment (2) of Sheet RV133 deletes paragraph 36-13(2)(b) at item 40 of Schedule 4 to the Bill and replaces it with a new paragraph. This amendment means that new section 36-13 does not apply to a unit that the student does not complete and in respect of which the provider is satisfied that special circumstances apply in relation to the student as determined under new subsection 36-13(3).

Prior to this amendment, paragraph 36-13(2)(b) referred to special circumstances decisions made under section 36-20 of HESA. This reference is no longer required as the relevant provision for the purposes of determining that special circumstances apply under paragraph 36-13(2)(b) will now be subsection 36-13(3).

Amendment (3) of Sheet RV133 amends section 36-13 to include new subsections 36-13(3) to (8) after subsection 36-13(2).

New subsection 36-13(3) provides that, for the purposes of paragraph 36-13(2)(b), special circumstances apply to the student in respect of a unit of study if, and only if, the higher education provider is satisfied that circumstances apply to the student that:

a)

are beyond the student's control; and

b)

do not make their full impact on the student until on or after the census date for the unit of study; and

c)

make it impracticable for the student to complete the requirements for the unit during the period during which the student undertook, or was to undertake, the unit.

New subsection 36-13(4) provides that the Administration Guidelines 2012 (the Guidelines) may specify circumstances in which the higher education provider will be satisfied of a matter referred to in paragraph 36-13(3)(a) or (b).

New subsection 36-13(5) provides that the higher education provider will be satisfied of the matter referred to in paragraph 36-13(3)(c) in relation to a unit of study if the provider is satisfied that any of the following circumstances apply in relation to the student:

a)

the student's medical condition changed or worsened to such an extent that the student was unable to complete the requirements for the unit;

b)

a member of the student's family died and it is unreasonable to expect the student to have completed the requirements for the unit;

c)

a member of the student's family had a serious medical condition and it is unreasonable to expect the student to have completed the requirements for the unit;

d)

financial difficulties experienced by the student, or a member of the student's family, are such that it is unreasonable to expect the student to have completed the requirements for the unit;

e)

the student's employment status or arrangements changed such that the student was unable to complete the requirements for the unit;

f)

changes made in relation to the unit by the provider, or another higher education provider, disadvantaged the student;

g)

it is unreasonable to expect the student to have completed the requirements for the unit because of a natural disaster, or other emergency, that occurred in Australia;

h)

any other circumstances that the provider considers relevant;

i)

any other circumstances specified in the Guidelines for the purposes of this paragraph.

The factors listed in new subsection 36-13(5) are similar to the factors currently specified in the Guidelines in relation to the circumstances where a higher education provider will be satisfied that it is impracticable for a student to complete the requirements of a unit of study under paragraph 36-21(1)(c). Through these amendments to section 36-13, the Government is specifying the relevant factors on the face of the legislation in direct response to concerns from the public and higher education sector about the effect of section 36-13 on students facing hardship. These provisions make it clear that no student will be penalised for circumstances beyond their control as a result of this new section.

New subsection 36-13(6) provides that, without limiting paragraph 36-13(5)(i), the Guidelines may specify circumstances relating to a matter mentioned in subsection 36-13(5).

New subsection 36-13(7) provides that, if the Guidelines specify circumstances for the purposes of subsection 36-13(4) or paragraph 36-13(5)(i), a decision of a higher education provider under section 36-13 must be in accordance with those guidelines.

New subsection 36-13(8) provides that, if a higher education provider is unable to act for the purposes of section 36-13 (other than subsection 36-13(1)), the Secretary of the Department of Education, Skills and Employment may act as if one or more references in this section (other than subsection 36-13(1)) to a higher education provider were a reference to the Secretary.

Amendment (4) of Sheet RV133 inserts a new items 40A to 40D after item 40 of Schedule 4 of the Bill.

New item 40A amends the table at section 206-1 of HESA to insert a new item 1AE, which makes a decision that special circumstances do not apply to a person under paragraph 36-13(2)(b) a reviewable decision under HESA.

New items 40B to 40D make consequential amendments to sections 209-1, 238-1 and 238-10 to include references to new section 36-13 and paragraph 36-13(2)(b). These amendments are required as a result of the changes being made by Amendment (3) (see above).