Higher Education Support Act 2003

Ch 2 (heading) substituted by No 119 of 2007, s 3 and Sch 8 item 3, applicable in relation to payments under Part 2-4 of the Higher Education Support Act 2003 in respect of the year 2008 or a later year. The heading formerly read:

Chapter 2 - Grants for higher education assistance

S 36-10(1) amended by No 64 of 2022, s 3 and Sch 1 item 1, by substituting " the person meets the *student identifier requirements for the purposes of this paragraph (see subsection (2C)) " for " the person has a *student identifier immediately before the census date " in para (f), effective 30 November 2022 and applicable in relation to any unit of study with a census date that is on or after 30 November 2022 (whether the unit of study is part of a course of study commenced before, on or after 30 November 2022).

S 36-10(1) amended by No 93 of 2020, s 3 and Sch 4B item 2, by inserting para (d), applicable in relation to a unit of study that has a census date that is on or after 1 January 2022 (whether the unit of study is part of a course of study commenced before, on or after that day).

S 36-10(1) amended by No 93 of 2020, s 3 and Sch 4 item 13, by inserting para (ba), applicable in relation to any unit of study with a census date that is on or after 1 January 2021 (whether the unit of study is part of a course of study commenced before, on or after that day).

S 36-10(1) amended by No 62 of 2020, s 3 and Sch 1 item 1, by inserting para (f), effective 1 January 2021. No 62 of 2020, s 3 and Sch 2 items 1 - 3 contains the following application 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.

S 36-10(1) amended by No 104 of 2011, s 3 and Sch 2 item 8, by repealing para (d), applicable in relation to units of study whose census dates are on or after 1 January 2012. For transitional provisions see note under s 3-10 . Para (d) formerly read:

(d) the unit:

(i) is *covered by the person ' s *Student Learning Entitlement; or

(ii) wholly consists of *work experience in industry; or

(iii) is undertaken as part of an *enabling course; and

S 36-10(1) amended by No 104 of 2011, s 3 and Sch 1 item 25, by substituting " the provider has entered into a funding agreement under section 30-25 " for " a *number of Commonwealth supported places has been allocated to the provider under section 30-10 " in para (a), applicable in relation to the year commencing on 1 January 2012 or a later year.

S 36-10(1) amended by No 72 of 2007, s 3 and Sch 8 item 2, by substituting " that provider or another higher education provider " for " the provider or, where the provider is a *Table A provider, with another Table A provider " in para (b), effective 28 May 2007.

S 36-10(1) amended by No 72 of 2007, s 3 and Sch 5 item 1, by substituting para (c), applicable in relation to a unit of study in which a student enrols after 28 May 2007. Para (c) formerly read:

(c) the person is:

(i) an Australian citizen; or

(ii) a citizen of New Zealand who will be resident within Australia for the duration of the unit; or

(iii) a *permanent visa holder who will be resident within Australia for the duration of the unit; and

S 36-10(2), (2A) and (2B) substituted for s 36-10(2) by No 72 of 2007, s 3 and Sch 5 item 2, applicable in relation to a unit of study in which a student enrols after 28 May 2007. S 36-10(2) formerly read:

36-10(2)
In determining, for the purposes of subparagraph (1)(c)(ii) or (iii), whether a person will be resident within Australia for the duration of the unit of study, disregard any period of residence outside Australia if:

(a) it cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit; or

(b) it is required for the purpose of completing a requirement of that unit.

S 36-10(2), (2A) and (2B) substituted for s 36-10(2) by No 72 of 2007, s 3 and Sch 5 item 2, applicable in relation to a unit of study in which a student enrols after 28 May 2007.

S 36-10(2B) amended by No 127 of 2012, s 3 and Sch 2 item 1, by substituting " subsection (2) " for " paragraph (2)(b) or (c) " , applicable in relation to a unit of study that forms part of a course of study commenced by a person on or after 1 January 2013.

S 36-10(2), (2A) and (2B) substituted for s 36-10(2) by No 72 of 2007, s 3 and Sch 5 item 2, applicable in relation to a unit of study in which a student enrols after 28 May 2007.

S 36-10(2C) inserted by No 64 of 2022, s 3 and Sch 1 item 3, effective 30 November 2022 and applicable in relation to any unit of study with a census date that is on or after 30 November 2022 (whether the unit of study is part of a course of study commenced before, on or after 30 November 2022).

S 36-10(2D) inserted by No 64 of 2022, s 3 and Sch 1 item 3, effective 30 November 2022 and applicable in relation to any unit of study with a census date that is on or after 30 November 2022 (whether the unit of study is part of a course of study commenced before, on or after 30 November 2022).

S 36-10(7) amended by No 121 of 2006, s 3 and Sch 6 item 1, by inserting " or a winter school period (the current winter school period ) " after " period ) " in para (a), effective 4 November 2006.

S 36-10(8) amended by No 121 of 2006, s 3 and Sch 6 items 2 and 3, by inserting " or current winter school period " after " current summer school period " and inserting " or winter school period " after " a summer school period " , effective 4 November 2006.

S 36-10(9) substituted by No 121 of 2006, s 3 and Sch 6 item 4, effective 4 November 2006. S 36-10(9) formerly read:

36-10(9)
The higher education provider must make the determination before the start of the current summer school period.

S 36-10(10) amended by No 121 of 2006, s 3 and Sch 6 item 6, by inserting the definition of " winter school period " , effective 4 November 2006.