Education Legislation Amendment (Tuition Protection and Other Measures) Act 2019 (111 of 2019)

Schedule 1   VET student loans tuition protection

Part 1   Main amendments

Division 1   Amendments

VET Student Loans Act 2016

20   After Part 5

Insert:

Part 5A - Tuition protection

Division 1 - Preliminary

66A Application of this Part

(1) This Part applies to approved course providers other than:

(a) Table A providers; or

(b) providers of a kind prescribed by the rules.

(2) Despite subsection (1), sections 66F and 66G apply to all approved course providers.

Note: Section 66F deals with provider obligations to provide information about replacement courses and section 66G deals with obligations of providers who provide replacement courses.

66B When an approved course provider defaults in relation to a student

(1) An approved course provider defaults in relation to a student if:

(a) the provider fails to start to provide a course or a part of a course to the student on the day on which the course or part was scheduled to start; and

(b) the student has not withdrawn before that day; and

(c) either:

(i) a VET student loan has been approved for the student for the course on or before that day; or

(ii) the student is an eligible student for the course and has a HELP balance of greater than zero on that day.

(2) An approved course provider defaults in relation to a student if:

(a) the provider ceases to provide a course or a part of a course to the student on a day that is after the course or part starts but before it is completed; and

(b) the student has not withdrawn before that day; and

(c) either:

(i) a VET student loan has been approved for the student for the course on or before that day; or

(ii) the student is an eligible student for the course and has a HELP balance of greater than zero on that day.

(3) An approved course provider defaults in relation to a student if circumstances prescribed by the rules apply in relation to the provider and the student.

Division 2 - Obligations when a provider defaults in relation to a student

66C Approved course providers must give notice of default to VSL Tuition Protection Director

Application of section

(1) This section applies if an approved course provider defaults in relation to a student.

Notifying the VSL Tuition Protection Director of default

(2) The approved course provider must, within 24 hours of the default occurring, give written notice to the VSL Tuition Protection Director of the circumstances of the default.

Notifying the VSL Tuition Protection Director of details of default

(3) The approved course provider must, within 3 business days of the default occurring, give a written notice to the VSL Tuition Protection Director specifying:

(a) the following information for each student in relation to whom the provider has defaulted:

(i) the student's full name and contact details;

(ii) the course, or part or parts of the course, that the student was enrolled in at the time of the default;

(iii) the amount of the tuition fees for each course, or part of the course, that student was enrolled in at the time of the default;

(iv) details about the payment of those tuition fees, including the amounts that are covered fees; and

(b) any other matter prescribed by the rules.

(4) If requested in writing by the VSL Tuition Protection Director, the approved course provider must give to the Director either of the following for a student in relation to whom the provider has defaulted:

(a) a copy of a statement of attainment or other Australian Qualifications Framework certification documentation issued by the course provider or an authorised issuing organisation in accordance with the Australian Qualifications Framework for the parts of the course that the student has completed;

(b) a copy of an authenticated VET transcript prepared by the Registrar (within the meaning of the Student Identifiers Act 2014) for the parts of the course that the student has completed.

Notice requirements

(5) A notice given under subsection (2) or (3) must comply with any requirements prescribed by the rules for the purposes of this subsection.

Civil penalty

(6) An approved course provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

Offence

(7) An approved course provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

66D Approved course providers must give notice of default to affected students

Application of section

(1) This section applies if an approved course provider defaults in relation to a student.

Notifying students of default

(2) The approved course provider must, within 24 hours of the default occurring, give written notice of the default to the students in relation to whom the provider has defaulted.

Notice requirements

(3) A notice given under subsection (2) must comply with any requirements prescribed by the rules for the purposes of this subsection.

Civil penalty

(4) An approved course provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

Offence

(5) An approved course provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

66E Student placement service

VSL Tuition Protection Director must decide

(1) If an approved course provider defaults in relation to a student, the VSL Tuition Protection Director must decide:

(a) that the Director is satisfied that there are one or more suitable replacement courses for the student; or

(b) that the Director is not satisfied that there is a suitable replacement course for the student.

Matters relating to whether a course is a suitable replacement course

(2) In deciding whether the VSL Tuition Protection Director is satisfied that there is a suitable replacement course for a student, the Director must have regard to the following matters:

(a) whether the replacement course leads to the same or a comparable qualification as the original course;

(b) whether the mode of delivery of the replacement course is the same as the mode of delivery of the original course;

(c) the location where the replacement course for a student will be primarily delivered;

(d) whether a student who enrols in the replacement course:

(i) will incur additional fees that are unreasonable; and

(ii) will be able to attend the course without unreasonable impacts on the student's prior commitments;

(e) any other matters prescribed by the rules.

Suitable replacement course available

(3) If paragraph (1)(a) applies, the VSL Tuition Protection Director must give a written notice to the student that includes the following:

(a) a description of each suitable replacement course, including the qualification that the course leads to;

(b) the contact details of the provider of each suitable replacement course;

(c) an explanation that, if tuition fees have been paid for the affected part of the original course, tuition fees would not be payable for the replacement component of the replacement course;

(d) an explanation that if the student chooses to enrol in another course, there is no obligation on the provider of the other course to offer a replacement component without charge to the student;

(e) an explanation of the matters the Director must have regard to under subsection (2);

(f) an explanation of the student's right to request reconsideration, under section 76, of the Director's decision within 28 days after the day on which the student is given the notice (or such longer period as the Director allows);

(g) an explanation that if, upon reconsideration, it is determined that there is no suitable replacement course for the student, an amount equal to the student's loan amount that has been used to pay tuition fees for the student for the affected part will be re-credited to the student's HELP balance;

(h) any other matters prescribed by the rules.

No suitable replacement course available

(4) If paragraph (1)(b) applies, the VSL Tuition Protection Director must give a written notice to the student that includes the following:

(a) an explanation of the matters the Director must have regard to under subsection (2);

(b) an explanation of the student's right to request reconsideration, under section 76, of the Director's decision within 28 days after the day on which the student is given the notice (or such longer period as the Director allows);

(c) a statement that, to facilitate early re-crediting, the student may, at any time during the 28 days, give the VSL Tuition Protection Director notice in writing that the student will not seek reconsideration of the decision;

(d) a statement that, if the decision is not reconsidered or is confirmed, an amount equal to the student's loan amount that has been used to pay tuition fees for the student for the affected part will be re-credited to the student's HELP balance.

66F Obligations of providers to provide information about replacement courses

(1) The VSL Tuition Protection Director may, by notice in writing, require an approved course provider to provide such information that the Director reasonably requires to enable the Director to make a decision under subsection 66E(1) regarding suitable replacement courses for a student in relation to whom a provider has defaulted.

(2) The information must be provided:

(a) in a form (if any) approved by the VSL Tuition Protection Director for the information; and

(b) in accordance with such other requirements as the Director makes.

Civil penalty

(3) An approved course provider contravenes this subsection if:

(a) the provider is given a notice under subsection (1); and

(b) the provider fails to comply with the notice.

Civil penalty: 60 penalty units.

Offence

(4) An approved course provider commits an offence of strict liability if:

(a) the provider is given a notice under subsection (1); and

(b) the provider fails to comply with the notice.

Penalty: 60 penalty units.

66G Obligations of replacement provider

Application of section

(1) This section applies if a student accepts an offer of a place in a replacement course.

Notice of acceptance

(2) The approved course provider who provides the replacement course must give written notice of the acceptance to the VSL Tuition Protection Director within 14 days of the acceptance.

Course credits must be granted etc.

(3) The approved course provider who provides the replacement course must ensure that the student:

(a) is granted course credits for parts of the original course successfully completed by the student, as evidenced by:

(i) a statement of attainment or other Australian Qualifications Framework certification documentation issued in accordance with the Australian Qualifications Framework; or

(ii) an authenticated VET transcript prepared by the Registrar (within the meaning of the Student Identifiers Act 2014); and

(b) if tuition fees have been paid for the affected part of the original course - is not charged tuition fees for the replacement component of the replacement course; and

(c) is enrolled in the replacement course as soon as practicable.

Civil penalty

(4) An approved course provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

Offence

(5) An approved course provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

66H Obligations where there is no replacement course

(1) This section applies if:

(a) an approved course provider defaults in relation to a student; and

(b) the VSL Tuition Protection Director decides, under paragraph 66E(1)(b), that the Director is not satisfied that there is a suitable replacement course for the student.

(2) The VSL Tuition Protection Director must give a written notice to the Secretary of that fact.

(3) The VSL Tuition Protection Director must give a written notice to the provider:

(a) stating that an amount equal to the loan amount that has been used to pay tuition fees for the student for the affected part:

(i) will be re-credited to the student's HELP balance; and

(ii) will be required to be paid by the provider to the Commonwealth; and

(b) inviting the provider to make written submissions to the Director about the amount of the re-credit within 28 days.

Note: The amount is re-credited by the Secretary under section 72A. The Secretary must consider submissions before re-crediting a student's HELP balance.

Part 5B - VSL Tuition Protection Fund, VSL Tuition Protection Director and VSL Tuition Protection Fund Advisory Board

Division 1 - VSL Tuition Protection Fund

66J Name of Fund

(1) The VSL Tuition Protection Fund is established by this section.

(2) The VSL Tuition Protection Fund is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.

66K Credits to the VSL Tuition Protection Fund

There must be credited to the VSL Tuition Protection Fund amounts equal to the following:

(a) each amount of VSL tuition protection levy received from an approved course provider;

(b) each amount paid by a course provider to the Commonwealth under section 22 that relates to an amount re-credited under section 72A if the balance of the Fund had previously been reduced under paragraph 66L(1)(f) in relation to that amount;

(c) any other money appropriated by the Parliament for the purposes of the VSL Tuition Protection Fund;

(d) any penalties for late payment of VSL tuition protection levy;

(e) each amount received by the Commonwealth for the purposes of the VSL Tuition Protection Fund.

Note 1: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account.

Note 2: VSL tuition protection levy is imposed by the VET Student Loans (VSL Tuition Protection Levy) Act 2019. The rules deal with collection of the levy (see subsection 49A(2)).

66L Purposes of the VSL Tuition Protection Fund

(1) The purposes of the VSL Tuition Protection Fund are as follows:

(a) making payments in connection with tuition protection;

(b) paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in the performance of the VSL Tuition Protection Director's functions, including in managing the VSL Tuition Protection Fund;

(c) paying any remuneration and allowances payable to the VSL Tuition Protection Director;

(d) paying any remuneration and allowances payable to the members of the VSL Tuition Protection Fund Advisory Board;

(e) paying any amount that is required or permitted to be repaid;

(f) reducing the balance of the Fund (and therefore the available appropriation for the Fund) without making a real or notional payment.

Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).

(2) The rules may, for the purposes of paragraph (1)(a), make provision in relation to such payments, including in relation to the following:

(a) the circumstances in which payments may be made;

(b) amounts of different kinds of payments;

(c) methods for calculating different kinds of payments.

Note: For example, the rules may provide that a replacement provider may receive a transfer payment if a student accepts an offer of a replacement course with the provider.

(3) The purposes in subsection (1) do not include paying or discharging any costs, expenses or other obligations associated with services provided to the VSL Tuition Protection Director by any employee or officer of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013).

Division 2 - VSL Tuition Protection Director

66M VSL Tuition Protection Director

(1) There is to be a VSL Tuition Protection Director.

(2) The office of VSL Tuition Protection Director is to be held by the person who holds the office of TPS Director under section 54A of the Education Services for Overseas Students Act 2000.

Note: The TPS Director also holds the office of HELP Tuition Protection Director under the Higher Education Support Act 2003.

(3) The reference in subsection (2) to the person who holds the office of TPS Director includes a reference to a person acting in that office for the time being because of an appointment under section 54K of the Education Services for Overseas Students Act 2000.

66N Functions of the VSL Tuition Protection Director

(1) The VSL Tuition Protection Director has the following functions:

(a) facilitating and monitoring the placement of students in relation to whom an approved course provider has defaulted;

(b) paying amounts out of, or reducing the balance of, the VSL Tuition Protection Fund under section 66L;

(c) reporting to the Minister on:

(i) the operation of Part 5A (tuition protection); and

(ii) the financial status of the VSL Tuition Protection Fund;

(d) managing the VSL Tuition Protection Fund in a way that ensures that it is able to meet all its liabilities from time to time (including entering into a loan agreement for the benefit of the VSL Tuition Protection Fund);

(e) making the legislative instrument each year for the purposes of section 12 of the VET Student Loans (VSL Tuition Protection Levy) Act 2019;

(f) recommending that the Secretary take action against an approved course provider that has defaulted in relation to a student or has otherwise not complied with this Act;

(g) any other function conferred by this Act or any other law of the Commonwealth;

(h) any other function that is incidental or conducive to the performance of the above functions.

(2) The VSL Tuition Protection Director has power to do all things necessary or convenient to be done for, or in connection with, the performance of the Director's functions.

66P Administrative provisions relating to the VSL Tuition Protection Director

(1) Each provision of the Education Services for Overseas Students Act 2000 specified in column 1 of an item in the following table applies in relation to the VSL Tuition Protection Director in accordance with columns 2 and 3 of the item.

(2) This subsection covers the following provisions of the Education Services for Overseas Students Act 2000:

(a) section 54C;

(b) section 54D;

(c) section 54E;

(d) section 54F;

(e) section 54J;

(f) section 54L;

(g) section 54N.

(3) For the purposes of section 54E of the Education Services for Overseas Students Act 2000, the Education Minister is taken to have given approval to the TPS Director to engage in paid employment as the VSL Tuition Protection Director.

(4) The Education Minister may terminate the appointment of the TPS Director if:

(a) the TPS Director engages, except with the Education Minister's approval, in paid employment outside the duties of his or her office as VSL Tuition Protection Director; or

(b) the VSL Tuition Protection Director fails, without reasonable excuse, to comply with section 54F of the Education Services for Overseas Students Act 2000 as applied to the VSL Tuition Protection Director by item 6 of the table in subsection (1) of this section.

(5) In this section:

TPS Director has the same meaning as in the Education Services for Overseas Students Act 2000.

Division 3 - VSL Tuition Protection Fund Advisory Board

66Q Establishment and membership

(1) The VSL Tuition Protection Fund Advisory Board is established by this section.

(2) The members of the VSL Tuition Protection Fund Advisory Board are the members of the TPS Advisory Board appointed under section 55D of the Education Services for Overseas Students Act 2000.

(3) The reference in subsection (2) to the members of the TPS Advisory Board includes a reference to a person for the time being acting as a member of that Board because of an appointment under subsection 55N(1) of the Education Services for Overseas Students Act 2000.

(4) The Chair of the VSL Tuition Protection Fund Advisory Board is the Chair of the TPS Advisory Board appointed under subsection 55C(3) of the Education Services for Overseas Students Act 2000.

(5) The reference in subsection (4) to the Chair of the TPS Advisory Board includes a reference to a person for the time being acting as the Chair of that Board because of an appointment under subsection 55N(2) of the Education Services for Overseas Students Act 2000.

(6) The Deputy Chair of the VSL Tuition Protection Fund Advisory Board is the Deputy Chair of the TPS Advisory Board appointed under subsection 55C(3) of the Education Services for Overseas Students Act 2000.

(7) Despite subsection 55C(2) of the Education Services for Overseas Students Act 2000, a person is eligible to be appointed to the TPS Advisory Board if the Education Minister is satisfied that the person has qualifications or experience that the Education Minister considers relevant to the performance of the VSL Tuition Protection Fund Advisory Board's functions.

66R Function of the VSL Tuition Protection Fund Advisory Board

The VSL Tuition Protection Fund Advisory Board's function is, either on its own initiative or at the request of the VSL Tuition Protection Director, to provide advice and make recommendations to the Director in relation to the making of a legislative instrument each year under section 12 of the VET Student Loans (VSL Tuition Protection Levy) Act 2019.

66S Administrative provisions relating to the VSL Tuition Protection Fund Advisory Board

(1) Each provision of the Education Services for Overseas Students Act 2000 specified in column 1 of an item in the following table applies in relation to the VSL Tuition Protection Fund Advisory Board in accordance with columns 2 and 3 of the item.

(2) This subsection covers the following provisions of the Education Services for Overseas Students Act 2000:

(a) section 55E;

(b) section 55H;

(c) section 55J;

(d) section 56A;

(e) section 56B;

(f) section 56C;

(g) section 56D;

(h) section 56E;

(i) section 56F;

(j) section 56G.