PART 2
-
LOANS TO STUDENTS
Division 4
-
Applications for loans
SECTION 17
APPLICATIONS FOR LOANS
17(1)
An application for a VET student loan for a course must:
(a)
include 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; and
(b)
include the student
'
s student identifier.
History
S 17(1) amended by No 62 of 2020, s 3 and Sch 1 item 6, by omitting
"
(if any)
"
after
"
student
'
s student identifier
"
from para (b), applicable in relation to applications for VET student loans made on or after 1 January 2021. No 62 of 2020, s 3 and Sch 2 items 1
-
3 contains the following provisions:
1 Loans and payments relating to FEE-HELP assistance and VET FEE-HELP assistance
Scope
(1)
This item applies if:
(a)
a payment was made by the Commonwealth to a higher education provider or a VET provider; and
(b)
the payment was purportedly on account of an amount (the
excess amount
) of FEE-HELP assistance or VET FEE-HELP assistance for a unit of study or a VET unit of study; and
(c)
the payment was purportedly paid under the
Higher Education Support Act 2003
to discharge the liability of a student (a
relevant student
) to pay the student
'
s tuition fee for the unit of study or the VET unit of study with the provider; and
(d)
the relevant student was not entitled to the excess amount because the amount exceeded the relevant student
'
s HELP balance; and
(e)
the census date for the unit occurred during the period:
(i)
starting on 1 January 2005; and
(ii)
ending on 31 December 2019.
Recovery of overpayment
(2)
To the extent that it has not already been repaid to the Commonwealth before the commencement of this item, the payment:
(a)
is a debt due to the Commonwealth; and
(b)
may be recovered by the Commonwealth in a court of competent jurisdiction.
Adjustment of payments and entitlements
(3)
If the Secretary determines that this subitem applies to a relevant student in relation to an excess amount and a unit of study or VET unit of study:
(a)
for the purposes of this item, the relevant student
'
s HELP balance is taken, on the census date for the unit, to have been increased by:
(i)
an amount equal to the excess amount; or
(ii)
if the Secretary determines another amount
-
that amount; and
(b)
the Commonwealth must lend to the student an amount of FEE-HELP assistance or VET FEE-HELP assistance for the unit equal to the excess amount or the determined amount (as the case may be); and
(c)
the Commonwealth must pay the amount lent to the provider in discharge of the student
'
s liability to pay the student
'
s tuition fee for the unit.
(4)
The Secretary may, on behalf of the Commonwealth, set off the amount of a debt due to it by a provider under subitem (2) against an amount that is payable to the provider under paragraph (3)(c).
(5)
The Consolidated Revenue Fund is appropriated for the purposes of payments under subitem (3).
Application of the Higher Education Support Act 2003
(6)
Subitem (7) applies if the Secretary makes a determination in relation to a relevant student under subitem (3).
(7)
The
Higher Education Support Act 2003
has effect, and is taken to always have had effect, as if the Commonwealth had made the loan to the student, and made the payment to the provider:
(a)
if the excess amount was a purported payment of FEE-HELP assistance for a unit of study
-
under section
110-1
of that Act for that unit of study; or
(b)
if the excess amount was a purported payment of VET FEE-HELP assistance for a VET unit of study
-
under clause
55
of Schedule
1A
of that Act for that unit of study;
and to have done so immediately after the census date for the unit of study or VET unit of study.
(8)
Despite subsection
128-25(2)
of the
Higher Education Support Act 2003
, the Secretary must not re-credit the relevant student
'
s HELP balance with an amount equal to the amount lent to the student under this item if, and to the extent that, the re-crediting would have the effect that the student
'
s HELP balance would exceed the HELP loan limit for the student.
Delegation
(9)
The Secretary may, in writing, delegate to an SES employee, or an acting SES employee, in the Department all or any of the powers of the Secretary under subitems (3) and (4).
(10)
In exercising powers under the delegation, the delegate must comply with any directions of the Secretary.
Determination is not a legislative instrument
(11)
A determination made under subitem (3) is not a legislative instrument.
Definitions
(12)
Expressions used in this item that are also used in the
Higher Education Support Act 2003
have the same meaning in this item as they have in that Act.
2 Approvals and payments relating to VET student loans
Scope
(1)
This item applies if:
(a)
a payment was made by the Commonwealth to an approved course provider; and
(b)
the payment was purportedly on account of an amount (the
excess amount
) of a VET student loan for a course; and
(c)
the payment was purportedly paid under the
VET Student Loans Act 2016
to pay tuition fees for a student (a
relevant student
) for the course; and
(d)
the excess amount was greater than the amount of a loan that could be approved for the student because the excess amount would reduce the student
'
s HELP balance to less than zero; and
(e)
the census day for the course or a part of the course occurred during the period:
(i)
starting on 1 January 2017; and
(ii)
ending on 31 December 2019.
Recovery of overpayment
(2)
To the extent that it has not already been repaid to the Commonwealth before the commencement of this item, the payment:
(a)
is a debt due to the Commonwealth; and
(b)
may be recovered by the Commonwealth in a court of competent jurisdiction.
Adjustment of payments and entitlements
(3)
If the Secretary determines that this subitem applies to a relevant student in relation to an excess amount and a course:
(a)
for the purposes of this item, the relevant student
'
s HELP balance is taken, on the census day for the course or a part of the course, to have been increased by:
(i)
an amount equal to the excess amount; or
(ii)
if the Secretary determines another amount
-
that amount; and
(b)
the Secretary is taken to have approved a loan amount for the student for the course equal to the excess amount or the determined amount (as the case may be); and
(c)
the Secretary must pay an amount equal to the approved loan amount to the provider to pay the student
'
s tuition fee for the course.
(4)
The Secretary may, on behalf of the Commonwealth, set off the amount of a debt due to it by a provider under subitem (2) against an amount that is payable to the provider under paragraph (3)(c).
(5)
The Consolidated Revenue Fund is appropriated for the purposes of payments under subitem (3).
Application of the VET Student Loans Act 2016
(6)
Subitem (7) applies if:
(a)
the Secretary makes a determination in relation to a relevant student under subitem (3); and
(b)
the excess amount was paid to the provider on or after 1 July 2019.
(7)
The
VET Student Loans Act 2016
has effect, and is taken to always have had effect, as if the Secretary had:
(a)
approved the loan for the student under section
7
of the
VET Student Loans Act 2016
; and
(b)
used the loan to make the payment to the provider under section
19
of that Act;
and to have done so immediately after the census day for the course or a part of the course.
(8)
Despite subsection
73A(2)
of the
VET Student Loans Act 2016
, the Secretary must not re-credit the relevant student
'
s HELP balance with an amount equal to the amount lent to the student under this item if, and to the extent that, the re-crediting would have the effect that the student
'
s HELP balance would exceed the HELP loan limit for the student.
Application of the Higher Education Support Act 2003
(9)
Subitem (10) applies if:
(a)
the Secretary makes a determination in relation to a relevant student under subitem (3); and
(b)
the excess amount was paid to the provider before 1 July 2019.
(10)
The
Higher Education Support Act 2003
has effect, and is taken to always have had effect, as if the Secretary had:
(a)
approved the loan for the student under section
7
of the
VET Student Loans Act 2016
; and
(b)
used the loan to make the payment to the provider under section
19
of that Act;
and to have done so immediately after the census day for the course or a part of the course.
(11)
Despite subsection
128-25(2)
of the
Higher Education Support Act 2003
, the Secretary must not re-credit the relevant student
'
s HELP balance with an amount equal to the amount lent to the student under this item if, and to the extent that, the re-crediting would have the effect that the student
'
s HELP balance would exceed the HELP loan limit for the student.
Delegation
(12)
The Secretary may, in writing, delegate to an SES employee, or an acting SES employee, in the Department all or any of the powers of the Secretary under subitems (3) and (4).
(13)
In exercising powers under the delegation, the delegate must comply with any directions of the Secretary.
Determination is not a legislative instrument
(14)
A determination made under subitem (3) is not a legislative instrument.
Definitions
(15)
Expressions used in this item that are also used in the
VET Student Loans Act 2016
have the same meaning in this item as they have in that Act.
3 Compensation for acquisition of property
(1)
If the operation of this Schedule would result in an acquisition of property (within the meaning of paragraph
51(xxxi)
of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2)
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
17(2)
The application:
(a)
must be in the form approved by the Secretary; and
(b)
must not be made before the end of any period specified in the rules; and
(c)
must meet any other requirements set out in the rules.
17(3)
The application must be signed by both the student and a responsible parent of the student if the following apply:
(a)
the student is under 18 years of age;
(b)
the student has a responsible parent;
(c)
the student has not received youth allowance (within the meaning of the
Social Security Act 1991
) on the basis that the student is independent (within the meaning of Part
2.11
of that Act).
17(4)
The Secretary may:
(a)
request the student to provide further information for the purposes of deciding the application; and
(b)
require some or all of the further information to be provided as a statutory declaration.
17(5)
A course provider contravenes this subsection if the provider completes any part of an application for a VET student loan that the student is required to complete.
Civil penalty: 120 penalty units.
17(6)
A course provider contravenes this subsection if:
(a)
the provider collects information (including from a student) for the purposes of, or in relation to, applications by students for VET student loans; and
(b)
the provider:
(i)
gives the collected information to the Secretary; or
(ii)
gives the Secretary information based on the collected information; and
(c)
either or both of the following apply:
(i)
the collected information omits a material particular or is incorrect in a material particular;
(ii)
the information based on the collected information omits a material particular or is incorrect in a material particular.
Note:
This subsection means that providers will need to verify information they collect from students for the purposes of, or in relation to, applications by students for VET student loans.
Civil penalty: 120 penalty units.
17(7)
Subparagraph (6)(c)(i) does not apply if the provider has taken the steps (if any) set out in rules made under subsection
48(1)
to verify that the collected information is correct.
Note:
Under section
48
, the rules may require an approved course provider to have specified processes and procedures in place.
17(8)
Subparagraph (6)(c)(ii) does not apply if:
(a)
the information is incorrect only because the collected information is incorrect; and
(b)
the provider has taken the steps (if any) set out in rules made under subsection
48(1)
to verify that the collected information is correct.
Note:
Under section
48
, the rules may require an approved course provider to have specified processes and procedures in place.
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