Chapter 1 - Introduction
Division 1 - Preliminary
SECTION 1-1
1-1
Short title
This Act may be cited as the
Higher
Education Support Act 2003.
SECTION 1-5
Commencement
1-5(1)
Each
provision of this Act specified in column 1 of the table commences, or is
taken to have commenced, in accordance with column 2 of the table. Any other
statement in column 2 has effect according to its terms.
Commencement information
|
Column 1
|
Column 2
|
Column 3
|
Provision(s)
|
Commencement
|
Date/Details
|
1. Sections 1-1 and 1-5 and anything in this Act
not elsewhere covered by this table |
The day on
which this Act receives the Royal Assent. |
19 December
2003 |
2. Sections 1-10 to 238-15 |
The
later of:
(a) 1 January 2004; and
(b) the day after the day
on which this Act receives the Royal Assent. |
1
January 2004 |
3. Schedule 1 |
The later
of:
(a) 1 January 2004; and
(b) the day after the day on which
this Act receives the Royal Assent. |
1
January 2004 |
Note:
This table relates only to the provisions of this Act as originally
passed by the Parliament and assented to. It will not be expanded to deal
with provisions inserted in this Act after assent.
1-5(2)
Column
3 of the table contains additional information that is not part of this Act.
Information in this column may be added to or edited in any published version
of this Act.
SECTION 1-10
Identifying defined terms
1-10(1)
Many
of the terms in this Act are defined in the Dictionary in Schedule 1.
1-10(2)
Most
of the terms that are defined in the Dictionary in Schedule
1 are identified by an asterisk appearing at the start
of the term: as in ``*accredited course''. The footnote with the asterisk
contains a signpost to the Dictionary.
1-10(3)
An
asterisk usually identifies the first occurrence of a term in a section (if
not divided into subsections), subsection or definition. Later occurrences
of the term in the same provision are not usually asterisked.
1-10(4)
Terms
are not asterisked in headings, notes, examples, explanatory tables, guides,
outline provisions or diagrams.
1-10(5)
If
a term is not identified by an asterisk, disregard that fact in deciding whether
or not to apply to that term a definition or other interpretation provision.
1-10(6)
The
following basic terms used throughout the Act are not identified with an asterisk:
Terms that are not identified
|
Item
|
This term:
|
is defined in:
|
1 |
enrol |
Schedule 1 |
2 |
higher
education provider |
section 16-1 |
3 |
student |
Schedule 1 |
4 |
unit of study |
Schedule 1 |
SECTION 1-15
1-15
Application of Chapter 6 etc.
(Repealed by No 74 of 2011)
History
S 1-15 repealed by No 74 of 2011, s 3 and Sch 2 item 1, effective 29 January 2012. S 1-15 formerly read:
SECTION 1-15 Application of Chapter 6 etc.
1-15
Chapter 6 and any regulation made for the purposes of that Chapter extend to every external Territory.
Division 2 - Objects
SECTION 2-1
2-1
Objects of this Act
The objects of this Act are:
(a)
to support a higher education system that:
(i)
is characterised by quality, diversity and equity of access; and
(ii)
contributes to the development of cultural and intellectual life in Australia; and
(iii)
is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and
(iv)
promotes and protects freedom of speech and academic freedom; and
(b)
to support the distinctive purposes of universities, which are:
(i)
the education of persons, enabling them to take a leadership role in the intellectual, cultural, economic and social development of their communities; and
(ii)
the creation and advancement of knowledge; and
(iii)
the application of knowledge and discoveries to the betterment of communities in Australia and internationally; and
(iv)
the engagement with industry and the local community to enable graduates to thrive in the workforce;
recognising that universities are established under laws of the Commonwealth, the States and the Territories that empower them to achieve their objectives as autonomous institutions through governing bodies that are responsible for both the university's overall performance and its ongoing independence; and
(c)
to strengthen Australia's knowledge base, and enhance the contribution of Australia's research capabilities to national economic development, international competitiveness and the attainment of social goals; and
(d)
to support students undertaking higher education and certain vocational education and training.
History
S 2-1 amended by No 22 of 2021, s 3 and Sch 1 item 1, by substituting "freedom of speech and academic freedom" for "free intellectual inquiry in learning, teaching and research" in para (a)(iv), effective 23 March 2021.
S 2-1 amended by No 93of 2020, s 3 and Sch 3 item 3, by inserting para (b)(iv), effective 1 January 2021.
S 2-1 amended by No 104 of 2011, s 3 and Sch 3 item 1, by inserting para (a)(iv), applicable in relation to the year commencing on 1 January 2012 or a later year.
S 2-1 amended by No 170 of 2007, s 3 and Sch 1 item 1, by inserting "and certain vocational education and training" at the end of para (d), effective 1 January 2008.
Division 3 - Overview of this Act
SECTION 3-1
3-1
General
This Act primarily provides for the Commonwealth to give financial support for higher education and certain vocational education and training:
(a)
through grants and other payments made largely to higher education providers; and
(b)
through financial assistance to students (usually in the form of loans).
History
S 3-1 amended by No 170 of 2007, s 3 and Sch 1 item 2, by inserting "and certain vocational education and training" after "for higher education", effective 1 January 2008,
SECTION 3-5
Grants for higher education assistance etc (Chapter 2)
3-5(1)
Chapter
2 sets out who are higher education providers, and provides for the following grants and payments:
(a)
grants under the Commonwealth Grant Scheme;
(aa)
grants for assisting Indigenous persons;
(b)
other grants for particular purposes;
(c)
grants for Commonwealth scholarships.
History
S 3-5(1) amended by No 14 of 2021, s 3 and Sch 2 item 1, by substituting "persons" for "students" in para (aa), effective 2 March 2021.
S 3-5(1) amended by No 74 of 2016, s 3 and Sch 1 item 1, by inserting para (aa), effective 1 January 2017.
3-5(2)
Higher education providers will be universities, self-accrediting entities or non self-accrediting entities.
History
S 3-5(2) amended by No 72 of 2007, s 3 and Sch 1 item 1, by substituting "self-accrediting entities or non self-accrediting entities" for "self-accrediting providers or non self-accrediting providers", effective 31 December 2007.
3-5(3)
Chapter
2 also provides for the direct payment to students of certain Commonwealth scholarships.
History
S 3-5(3) inserted by No 119 of 2007, s 3 and Sch 8 item 1, 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.
SECTION 3-10
3-10
Assistance to students (Chapter 3)
Chapter 3 provides for the following assistance to students:
(a)
HECS-HELP assistance for student contribution amounts;
(b)
FEE-HELP assistance for tuition fees;
(c)
OS-HELP assistance for overseas study;
(d)
SA-HELP assistance for meeting student services and amenities fees imposed by higher education providers;
(e)
STARTUP-HELP assistance for accelerator program courses.
Chapter 3 also deals with a person's Student Learning Entitlement.
History
S 3-10 amended by No 36 of 2023, s 3 and Sch 1 items 1 and 2, by substituting "providers;" for "providers." in para (d) and inserting para (e), effective 29 June 2023.
S 3-10 amended by No 93 of 2020, s 3 and Sch 4B item 1, by inserting "Chapter 3 also deals with a person's Student Learning Entitlement.", effective 1 January 2022.
S 3-10 amended by No 104 of 2011, s 3 and Sch 2 item 1, by omitting "Chapter 3 also provides for the Student Learning Entitlement." after para (d), applicable in relation to units of study whose census dates are on or after 1 January 2012. No 104 of 2011, s 3 and Sch 2 item 41 contains the following transitional provisions:
41 Effect of abolition of SLE on persons who have used some or all of their SLE
41
To avoid doubt, a person may be enrolled as a Commonwealth supported student on or after commencement regardless of whether the person has, before commencement, used some or all of the person's SLE.
S 3-10 amended by No 130 of 2011, s 3 and Sch 1 items 1 and 2, by inserting para (d), effective 1 January 2012.
SECTION 3-15
3-15
Repayment of loans (Chapter 4)
Chapter
4 sets
out how debts are incurred and worked out in relation to loans madeunder
Chapter
3, and provides for their
repayment.
SECTION 3-20
3-20
Administration (Chapter 5)
Chapter
5 provides
for several administrative matters relating to the operation of this Act.
SECTION 3-25
3-25
Provision of higher education in the external Territories (Chapter 6)
(Repealed by No 74 of 2011)
History
S 3-25 repealed by No 74 of 2011, s 3 and Sch 2 item 2, effective 29 January 2012. S 3-25 formerly read:
SECTION 3-25 Provision of higher education in the external Territories (Chapter 6)
3-25
Chapter 6 primarily provides for approval of universities, self-accrediting entities and non self-accrediting entities to operate in external Territories, and for accreditation of courses of study in those Territories.
S 3-25 substituted by No 72 of 2007, s 3 and Sch 1 item 1A, effective 31 December 2007. S 3-25 formerly read:
SECTION 3-25 Provision of higher education in the external Territories (Chapter 6)
3-25
Chapter 6 primarily provides for approval as self-accrediting entities, and for accreditation of courses of study, in external Territories.
SECTION 3-30
3-30
VET FEE-HELP Assistance Scheme (Schedule 1A)
Schedule
1A provides for financial assistance to students undertaking certain accredited vocational education and training (VET) courses.
History
S 3-30 inserted by No 170 of 2007, s 3 and Sch 1 item 3, effective 1 January 2008.
Division 5 - Application of Act to Table C providers
SECTION 5-1
Application of Act to Table C providers
General application to Table C providers
5-1(1)
The provisions of this Act not listed in the table in subsection
(2) or in subsection
(4) apply to a *Table C provider, the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
Modified application to Table C providers
5-1(2)
The provisions of this Act listed in the table apply to a *Table C provider in the way set out in the table.
Application of Act to Table C providers
|
Item
|
Provision
|
Application
|
1 |
Subdivision 19-C (quality requirements) |
Applies to the *Australian branch of the provider. However, *TEQSA may need to assess the overall performance of the provider as it relates to that branch. |
2 |
Subdivision 19-D (fairness requirements) |
Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
2A |
Section 19-66A (*tuition protection requirements) |
Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
3 |
Subdivision 19-F (contribution and fee requirements) |
Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
4 |
Part 3-3 (FEE-HELP assistance) |
Applies to eligible students of the *Australian branch of the provider, but only for units of study in which the students are enrolled at the Australian branch. |
5 |
Part 3-4 (OS-HELP assistance) |
Applies to eligible students of the *Australian branch of the provider. |
5A |
Part 3-5 (SA-HELP assistance) |
Applies to eligible students of the *Australian branch of the provider who are enrolled at the Australian branch in a *course of study or *bridging course for overseas-trained professionals. |
6 |
Chapter 4 (Repayment of loans) |
Applies to the *Australian branch of the provider and to students undertaking, or students who undertook, units of study at that branch. |
7 |
Part 5-2 (Administrative requirements on higher education providers) |
Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
8 |
Part 5-3 (Electronic communications) |
Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
9 |
Part 5-4 (Management of information) |
Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
10 |
Part 5-5 (Tax file numbers) |
Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
11 |
Part 5-7 (Review of decisions) |
Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
History
S 5-1(2) amended by No 111 of 2019, s 3 and Sch 2 item 1, by inserting table item 2A, effective 1 January 2012. For application and transitional provisions, see note under s 16-25.
S 5-1(2) amended by No 6 of 2012, s 3 and Sch 1 item 6, by substituting "Management of" for "Protection of personal" in table item 9, column headed "Provision", applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
S 5-1(2) amended by No 74 of 2011, s 3 and Sch 2 item 3, by substituting "*TEQSA" for "an audit by a *quality auditing body" in table item 1, effective 29 January 2012.
S 5-1(2) amended by No 130 of 2011, s 3 and Sch 1 item 3, by inserting table item 5A, effective 1 January 2012.
Provisions that do not apply to Table C providers
5-1(3)
The provisions of this Act listed in subsection
(4) do not apply to:
(a)
a *Table C provider; or
(b)
the *Australian branch of the provider; or
(c)
students in their capacity as students of that provider or of that branch.
5-1(4)
The provisions are as follows:
(a)
Part
2-2 (Commonwealth Grant Scheme);
(aa)
Part
2-2A (Indigenous student assistance grants);
(b)
Part
2-3 (Other grants);
(c)
Part
2-4 (Commonwealth scholarships);
(d)
Part
2-5 (Reduction and repayment of grants);
(e)
Part
3-2 (HECS-HELP assistance);
(ea)
Part
3-7 (STARTUP-HELP assistance);
(f)
Schedule
1A (VET FEE-HELP Assistance Scheme).
History
S 5-1(4) amended by No 36 of 2023, s 3 and Sch 1 item 3, by inserting para (ea), effective 29 June 2023.
S 5-1(4) amended by No 74 of 2016, s 3 and Sch 1 items 2 and 3, by inserting "as follows" after "The provisions are" and inserting para (aa), effective 1 January 2017.
S 5-1(4) amended by No 119 of 2007, s 3 and Sch 8 item 2, by omitting "Grants for" before "Commonwealth scholarships", 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.
S 5-1(4) amended by No 170 of 2007, s 3 and Sch 1 item 4, by inserting para (f) at the end, effective 1 January 2008.
Division 6 - Schedule 1A
History
Div 6 inserted by No 170 of 2007, s 3 and Sch 1 item 5, effective 1 January 2008.
SECTION 6-1
6-1
Schedule 1A
Schedule
1A has effect.
History
S 6-1 inserted by No 170 of 2007, s 3 and Sch 1 item 5, effective 1 January 2008.
Chapter 2 - Grants for higher education assistance etc
History
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
Division 8 - Introduction
SECTION 8-1
What this Chapter is about
This Chapter provides for who are higher education providers, and for 4 kinds of grants to be made.
Part 2-1 sets out who are higher education providers (universities, self-accrediting entities and non self-accrediting entities), the quality and accountability requirements for higher education providers and how bodies cease to be higher education providers.
Note:
Except in very limited cases, only higher education providers can get grants under this Chapter.
The 4 kinds of grants available under this Chapter are:
• grants under Part 2-2 (Commonwealth Grant Scheme) to certain higher education providers. These grants are paid in relation to Commonwealth supported places. Grants are made subject to conditions; and
• grants under Part 2-2A to Table A providers and Table B providers to assist Indigenous persons; and
• other grants under Part 2-3 to higher education providers and other bodies corporate for a variety of purposes; and
• grants for Commonwealth scholarships to certain higher education providers under Part 2-4.
The amount of a grant may be reduced, or an amount paid may be required to be repaid, if the recipient breaches a quality and accountability requirement or a condition of the grant (see Part 2-5).
Note:
A body's approval as a higher education provider may be suspended or revoked for such a breach.
This Chapter also provides for the direct payment to students of certain Commonwealth scholarships under Part 2-4.
History
S 8-1 amended by No 14 of 2021, s 3 and Sch 2 item 2, by substituting "Indigenous persons" for "Indigenous students", effective 2 March 2021.
S 8-1 amended by No 74 of 2016, s 3 and Sch 1 items 4 and 5, by substituting "4 kinds" for "3 kinds" (wherever occurring) and inserting "• grants under Part 2-2A to Table A providers and Table B providers to assist Indigenous students; and" after "• grants under Part 2-2 (Commonwealth Grant Scheme) to certain higher education providers. These grants are paid in relation to Commonwealth supported places. Grants are made subject to conditions; and", effective 1 January 2017.
S 8-1 amended by No 104 of 2011, s 3 and Sch 1 item 1, by substituting "These grants are paid in relation to Commonwealth supported places." for "Amounts of grants are based largely on the number of Commonwealth supported places that the Minister allocates to each provider.", applicable in relation to the year commencing on 1 January 2012 or a later year.
S 8-1 amended by No 72 of 2007, s 3 and Sch 1 item 2, by substituting "self-accrediting entities and non self-accrediting entities" for "self-accrediting providers and non self-accrediting providers", effective 31 December 2007.
S 8-1 amended by No 119 of 2007, s 3 and Sch 8 item 4, by inserting the para beginning with "This Chapter also" after the note at the end, 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.
PART 2-1 - HIGHER EDUCATION
PROVIDERS
Division 13 - Introduction
SECTION 13-1
13-1
What this Part is about
A body generally has to be approved as a higher education provider before it can receive grants, or its students can receive assistance, under this Act. Listed providers (universities and certain self-accrediting entities) have that approval upon commencement of this Act. Table C providers have that approval from the time they are included in Table C. Bodies that do not have that automatic approval, or whose approval has been revoked, have to apply for approval.
Higher education providers are subject to the quality and accountability requirements. c-text>A body's approval as a higher education provider may be revoked in circumstances such as breach of a quality and accountability requirement.
History
S 13-1 amended by No 72 of 2007, s 3 and Sch 1 item 3, by substituting "self-accrediting entities" for "self-accrediting providers", effective 31 December 2007.
SECTION 13-5
13-5
The Higher Education Provider Guidelines
Higher education providers and the *quality
and accountability requirements are also dealt with in the Higher Education
Provider Guidelines. The provisions of this Part indicate when a particular
matter is or may be dealt with in these Guidelines.
Note:
The Higher Education Provider Guidelines are made by the Minister under
section 238-10.
Division 16 - What is a higher education provider?
Subdivision 16-A - General
SECTION 16-1
Meaning of
higher education provider
16-1(1)
A
higher education provider
is a body corporate that is approved under this Division.
History
S 16-1 amended by No 83 of 2017, s 3 and Sch 3 item 1, by inserting "(1)" before "A", effective 17 August 2017.
16-1(2)
Despite subsection (1), a body other than a body corporate may be approved under this Division as a
higher education provider
if the body is covered by an exemption under subsection (3).
History
S 16-1(2) inserted by No 83 of 2017, s 3 and Sch 3 item 2, effective 17 August 2017.
16-1(3)
The Minister may, in writing, exempt a body for the purposes of this section if the body is established by or under a law of the Commonwealth, a State or a Territory.
History
S 16-1(3) inserted by No 83 of 2017, s 3 and Sch 3 item 2, effective 17 August 2017.
16-1(4)
If the Minister exempts a body under subsection (3), references in this Act, other than in this section, to a body corporate are taken to include the body.
History
S 16-1(4) inserted by No 83 of 2017, s 3 and Sch 3 item 2, effective 17 August 2017.
16-1(5)
An exemption given under this section is not a legislative instrument.
History
S 16-1(5) inserted by No 83 of 2017, s 3 and Sch 3 item 2, effective 17 August 2017.
SECTION 16-5
When a body becomes or ceases to be a higher education provider
16-5(1)
A *listed provider is taken to be approved as a higher education provider from the commencement of this Act.
16-5(1A)
A *Table C provider is taken to be approved as a higher education provider from the commencement of the provision that included the provider in Table C in section
16-22.
16-5(2)
A body corporate:
(a)
that is not a *listed provider or a *Table C provider; or
(b)
that is a listed provider or a Table C provider that has previously ceased to be a higher education provider;
becomes a provider if approved by the Minister under section 16-25.
16-5(3)
A higher education provider ceases to be a provider if the provider's approval is revoked or suspended under Division
22 or the notice of the provider's approval ceases to have effect under Part
2 of Chapter
3 (parliamentary scrutiny of legislative instruments) of the
Legislation Act 2003.
History
S 16-5(3) amended by No 126 of 2015, s 3 and Sch 1 item 259, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003", effective 5 March 2016.
S 16-5(3) amended by No 39 of 2009, s 3 and Sch 2 item 1, by inserting "or the notice of the provider's approval ceases to have effect under Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003" at the end, effective 24 June 2009. No 39 of 2009, s 3 and Sch 2 item 9 contains the following application and transitional provisions:
Application and transitional provisions
(1)
The amendments made by this Schedule apply in relation to the following decisions to approve bodies corporate as higher education providers or VET providers:
(a)
decisions that were made on or after 24 June 2009;
(b)
decisions that were made before 24 June 2009, except:
(i)
decisions that took effect before 24 June 2009; and
(ii)
decisions, notices of which ceased to have effect under Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003 before that commencement.
(2)
However, a decision to approve a body corporate as a higher education provider or VET provider takes effect on 24 June 2009 if:
(a)
notice of the approval was registered under the Legislative Instruments Act 2003 before 24 June 2009; and
(b)
apart from this subitem, the decision would have taken effect before 24 June 2009 because of the amendments made by this Schedule applying as described in subitem (1).
Subdivision 16-B - Which bodies are listed providers?
SECTION 16-10
16-10
Listed providers
The following are listed providers:
(a)
a *Table A provider;
(b)
a *Table B provider.
SECTION 16-15
Table A providers
16-15(1)
The following are
Table A providers
:
Table A providers
|
Providers
|
Australian National University |
Central Queensland University |
Charles Darwin University |
Charles Sturt University |
Curtin University |
Deakin University |
Edith Cowan University |
Federation University Australia |
Flinders University |
Griffith University |
James Cook University |
La Trobe University |
Macquarie University |
Monash University |
Murdoch University |
Queensland University of Technology |
Royal Melbourne Institute of Technology |
Southern Cross University |
Swinburne University of Technology |
The University of Adelaide |
The University of Melbourne |
The University of Notre Dame Australia |
The University of Queensland |
The University of Sydney |
The University of Western Australia |
University of Canberra |
University of Newcastle |
University of New England |
University of New South Wales |
University of South Australia |
University of Southern Queensland |
University of Tasmania |
University of Technology Sydney |
University of the Sunshine Coast |
University of Wollongong |
Victoria University |
Western Sydney University |
Australian Catholic University Limited |
Australian Maritime College |
Bachelor Institute of Indigenous Tertiary Education |
History
S 16-15(1) amended by No 39 of 2021, s 3 and Sch 2 item 1, by inserting table item "The University of Notre Dame Australia", effective 28 May 2021.
S 16-15(1) amended by No 93 of 2020, s 3 and Sch 5 items 11-13, by inserting table item "Australian National University", omitting table item "The Australian National University" after "Swinburne University of Technology" and inserting table item "Limited", effective 1 January 2021.
S 16-15(1) amended by No 62 of 2020, s 3 and Sch 5 items 3 and 4, by omitting table item "University of Western Sydney" after "University of the Sunshine Coast" and inserting table item "Western Sydney University", effective 16 June 2020.
S 16-15(1) amended by No 103 of 2019, s 3 and Sch 3 items 2-5, by substituting table item "Curtin University" for "Curtin University of Technology", inserting table item "Flinders University", omitting table item "The Flinders University of South Australia" after "The Australian National University" and substituting table item "Technology Sydney" for "Technology, Sydney", effective 28 November 2019.
S 16-15(1) amended by No 160 of 2015, s 3 and Sch 3 items 1 and 2, by inserting table item "Federation University Australia" and repealing table item dealing with "University of Ballarat" after "The University of Western Australia", effective 1 December 2015.
S 16-15(1) amended by No 72 of 2007, s 3 and Sch 7 item 1, by omitting "of Technology" in the table item dealing with "Victoria University of Technology", effective 28 May 2007.
16-15(2)
However, a body is not a Table A provider if its approval as a higher education provider is revoked or suspended.
SECTION 16-20
Table B providers
16-20(1)
The following are
Table B providers
:
Table B providers
|
Providers
|
Avondale University |
Bond University Limited |
University of Divinity |
Torrens University Australia Ltd |
History
S 16-20(1) amended by No 36 of 2023, s 3 and Sch 3 item 1, by inserting table item "Avondale University", applicable (a) in relation to the making of grants - on and after 1 January 2024; and (b) otherwise - on and after 29 June 2023.
S 16-20(1) amended by No 39 of 2021, s 3 and Sch 2 item 2, by omitting table item "The University of Notre Dame Australia" after "Bond University Limited", effective 28 May 2021.
S 16-20(1) amended by No 93 of 2020, s 3 and Sch 5 items 14 and 15, by inserting table items "Limited" after "Bond University" and "Ltd" after "University Australia", effective 1 January 2021.
S 16-20(1) amended by No 103 of 2019, s 3 and Sch 3 item 6, by substituting table item "University" for "MCD University", effective 28 November 2019.
S 16-20(1) amended by No 160 of 2015, s 3 and Sch 2 item 1, by inserting table item "Torrens University Australia", effective 1 December 2015.
S 16-20(1) amended by No 38 of 2012, s 3 and Sch 1 item 10, by substituting table item "MCD University of Divinity" for "Melbourne College of Divinity" in the table, effective 1 January 2012.
16-20(2)
However, a body is not a Table B provider if its approval as a higher education provider is revoked or suspended.
SECTION 16-22
Table C providers
16-22(1)
The following are
Table C providers
:
Table C providers
|
Providers
|
Carnegie Mellon University, a non-profit organisation
established under Pennsylvania law |
History
S 16-22(1) amended by No 93 of 2020, s 3 and Sch 5 item 2, by omitting "University College London, a non-profit organisation established under United Kingdom law" from the table, effective 28 October 2020.
S 16-22(1) amended by No 47 of 2010, s 3 and Sch 1 item 1, by inserting the item beginning with "University College London" at the end of the table, effective 1 January 2010. No 47 of 2010, s 3 and Sch 1 item 2 contains the following application provision:
Application
(1)
The amendment applies in relation to units of study offered by the University College London on or after 1 January 2010.
(2)
In this item:
unit of study
has the same meaning as in the Higher Education Support Act 2003.
16-22(2)
However, a body is not a
Table C provider
if its approval as a higher education provider is revoked or suspended.
Note:
A Table C provider is not entitled to receive a grant under this Chapter: see section 5-1.
Subdivision 16-C - How are bodies approved as higher education providers?
SECTION 16-25
Approval by the Minister
16-25(1)
The Minister, in writing, may approve a body corporate as a higher education provider if:
(a)
the body:
(i)
is established under the law of the Commonwealth, a State or a Territory; and
(ii)
carries on business in Australia; and
(iii)
has its central management and control in Australia; and
(aa)
subject to subsection (2), the body's principal purpose is, or is taken to be, either or both of the following:
(i)
to provide education;
(ii)
to conduct research; and
(b)
the body is:
(i)
an *Australian university; or
(ii)
a *self-accrediting entity; or
(iii)
a *non self-accrediting entity; and
(c)
the Minister is satisfied that the body will meet the *tuition protection requirements (if applicable); and
(d)
(Repealed by No 74 of 2011)
(da)
the body offers at least one *course of study that leads to a *higher education award; and
(db)
the course of study is an *accredited course inrelation to the body; and
(dc)
(Repealed by No 74 of 2011)
(e)
the body applies for approval as provided for in section
16-40; and
(f)
the Minister is satisfied that the body is willing and able to meet the *quality and accountability requirements; and
(fa)
the body complies with any requirements set out in the Higher Education Provider Guidelines; and
(fb)
the Minister is satisfied that the body has sufficient experience in the provision of higher education; and
(g)
the Minister is satisfied that:
(i)
the body; and
(ii)
each person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body's affairs;
is a fit and proper person.
History
S 16-25(1) amended by No 111 of 2019, s 3 and Sch 2 item 2, by substituting para (c), effective 1 January 2012. No 111 of 2019, s 3 and Sch 2 item 2 contains the following transitional provision:
Division 2 - Application and transitional provisions
34 Application and transitional provisions
43(1)
Subsection 5-1(2) of the Higher Education Support Act 2003, as amended by this Part, applies in relation to a Table C provider after the commencement of this Part, regardless of when the provider was, or was taken to be, approved.
43(2)
The amendment of section 16-25 of the Higher Education Support Act 2003 made by this Part applies in relation to applications for approval made:
(a)
after the commencement of this Part; or
(b)
before the commencement of this Part, if the application had not been decided before that commencement.
43(3)
If, before the commencement of this Part, a higher education provider ceased to provide a unit of study, then the Higher Education Support Act 2003 and any instruments in force under that Act immediately before that commencement continue to apply, after that commencement, in relation to the provider as if the amendments and repeals made by this Part had not happened.
43(4)
Section 19-66A and Part 5-1A of the Higher Education Support Act 2003, as inserted by this Part, apply in relation to a higher education provider after the commencement of this Part, regardless of when the provider was, or was taken to be, approved.
43(5)
The amendments of section 169-15 of the Higher Education Support Act 2003 made by this Part apply in relation to enrolments in a unit of study that occur after the commencement of this Part.
Para (c) formerly read:
(c)
the body either fulfils the *tuition assurance requirements or is exempted from those requirements under section 16-31; and
S 16-25(1) amended by No 83 of 2017, s 3 and Sch 3 item 3, by inserting para (fb), applicable in relation to:
(a) applications for approval made after 17 August 2017; and
(b) applications for approval made before 17 August 2017 but not yet decided before 17 August 2017.
S 16-25(1) amended by No 160 of 2012, s 3 and Sch 2 item 19, by inserting para (fa), effective 29 November 2012.
S 16-25(1) amended by No 74 of 2011, s 3 and Sch 2 items 37 and 38, by repealing para (d) and substituting para (db) for para (db) and (dc), applicable in relation to an application for approval made on or after 29 January 2012. Para (d), (db) and (dc) formerly read:
(d)
the body is in a State or Territory that the Minister is satisfied has legislation that complies with the *National Protocols; and
(db)
if the body is a self-accrediting entity:
(i)
the body is authorised by a *government accreditation authority to accredit that course; or
(ii)
the course is an *accredited course; and
(dc)
if the body is a non self-accrediting entity - the course is an accredited course; and
S 16-25(1) amended by No 72 of 2011, s 3 and Sch 1 items 1 to 3, by inserting "(1)" before "The Minister", substituting para (aa), and inserting para (g), applicable in relation to an application for approval made on or after 30 June 2011. Para (aa) formerly read:
(aa)
the body's principal purpose is either or both of the following:
(i)
to provide education;
(ii)
to conduct research; and
S 16-25 amended by No 6 of 2010, s 3 and Sch 1 item 1, by substituting "fulfils the *tuition assurance requirements" for "fulfilled the *tuition assurance requirements on the date of making an application under section 16-40" in para (c), effective 19 February 2010.
S 16-25 amended by No 72 of 2007, s 3 and Sch 1 items 5 and 6, by substituting para (b) and substituting paras (d), (da), (db) and (dc) for para (d), effective 31 December 2007. Paras (b) and (d) formerly read:
(b)
the body is either:
(i)
a *university; or
(ii)
a *self-accrediting provider; or
(iii)
a *non self-accrediting provider; and
(d)
in the case of a non self-accrediting provider, the body meets the additional requirements under section 16-35; and
16-25(2)
For the purpose of paragraph (1)(aa), the Minister may determine that a body's principal purpose is taken to be either or both of the following:
(a)
to provide education;
(b)
to conduct research;
if the Minister is satisfied that any of the body's purposes do not conflict with the body's purpose of providing education and/or conducting research.
History
S 16-25(2) inserted by No 72 of 2011, s 3 and Sch 1 item 3, applicable in relation to an application for approval made on or after 30 June 2011.
Former s 16-25(2) repealed by No 72 of 2007, s 3 and Sch 1 item 7, effective 31 December 2007. S 16-25(2) formerly read:
16-25(2)
A
university
means a body corporate:
(a)
that meets *National Protocol 1; and
(b)
that is established as a university, or recognised as a university, by or under a law of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory.
16-25(2A)
For the purposes of paragraph (1)(fb), the Minister may have regard to the following:
(a)
whether the body has been a *registered higher education provider for 3 or more years;
(b)
the history of the body, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the body's affairs, in delivering higher education;
(c)
the scope of courses and level of qualifications the body, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the body's affairs, has experience in providing.
History
S 16-25(2A) inserted by No 83 of 2017, s 3 and Sch 3 item 4, applicable in relation to:
(a) applications for approval made after 17 August 2017; and
(b) applications for approval made before 17 August 2017 but not yet decided before 17 August 2017.
16-25(3)
The Minister must, in deciding whether he or she is satisfied that a person is a fit and proper person, take into account the matters specified in an instrument under subsection (4). The Minister may take into account any other matters he or she considers relevant.
History
S 16-25(3) inserted by No 72 of 2011, s 3 and Sch 1 item 3, applicable in relation to an application for approval made on or after 30 June 2011.
Former s 16-25(3) repealed by No 72 of 2007, s 3 and Sch 1 item 7, effective 31 December 2007. S 16-25(3) formerly read:
16-25(3)
A
self-accrediting provider
is a body corporate, other than a *university, whose name is included in the *Australian Qualifications Framework Register as the name of a higher education institution empowered to issue its own qualifications.
16-25(4)
The Minister must, by legislative instrument, specify matters for the purposes of subsection (3).
History
S 16-25(4) inserted by No 72 of 2011, s 3 and Sch 1 item 3, applicable in relation to an application for approval made on or after 30 June 2011.
Former s 16-25(4) repealed by No 72 of 2007, s 3 and Sch 1 item 7, effective 31 December 2007. S 16-25(4) formerly read:
16-25(4)
A
non self-accrediting provider
is a body corporate:
(a)
whose name is included; or
(b)
who owns or controls a business name that is included;
in the list of Non Self-Accrediting Higher Education Institutions contained in the *Australian Qualifications Framework Register, as the name of an institution approved by an authorised accreditation authority to issue one or more *higher education awards.
SECTION 16-27
16-27
Body must be a registered higher education provider
Despite section
16-25, the Minister must not approve a body corporate as a higher education provider unless the body isa *registered higher education provider.
History
S 16-27 inserted by No 74 of 2011, s 3 and Sch 2 item 4, applicable in relation to an application for approval made on or after 29 January 2012.
SECTION 16-30
16-30
The tuition protection requirements
The
tuition protection requirements
are:
(a)
the requirements set out in Part
5-1A (including in the Higher Education Provider Guidelines made for the purposes of that Part); and
(b)
the requirements set out in the Higher Education Provider Guidelines for the purposes of this paragraph.
History
S 16-30 substituting by No 111 of 2019, s 3 and Sch 2 item 3 effective 1 January 2020. S 16-30 formerly read:
SECTION 16-30 The tuition assurance requirements
16-30
The
tuition assurance requirements
are that the body corporate complies with the requirements for tuition assurance set out in the Higher Education Provider Guidelines.
SECTION 16-31
16-31
Tuition assurance requirements exemption for approvals
(Repealed by No 111 of 2019)
History
S 16-31 repealed by No 111 of 2019, s 3 and Sch 2 item 3, effective 1 January 2020. S 16-31 formerly read:
SECTION 16-31 Tuition assurance requirements exemption for approvals
16-31(1)
The Minister may, in writing, exempt a body corporate from the *tuition assurance requirements for the purposes of approving the body under section 16-25.
Note:
This section only deals with exemptions from the tuition assurance requirements when approving bodies as higher education providers. For exemptions from the tuition assurance requirements after approval has happened, see subsection 19-40(2).
16-31(2)
An exemption is subject to such conditions as are specified in the exemption.
Note:
A body will not be exempt if a condition of the exemption is not complied with.
16-31(3)
An exemption given under this section is not a legislative instrument.
SECTION 16-35
16-35
Additional requirements for non self-accrediting providers
(Repealed by No 72 of 2007)
History
S 16-35 repealed by No 72 of 2007, s 3 and Sch 1 item 8, effective 31 December 2007. S 16-35 formerly read:
SECTION 16-35 Additional requirements for non self-accrediting providers
16-35
The additional requirements for *non self-accrediting providers are that the body:
(a)
is in a State or Territory that the Minister is satisfied has legislation that complies with the *National Protocols; and
(b)
offers at least one *course of study that leads to a *higher education award, and that course is accredited by a State or Territory under *National Protocol 3.
SECTION 16-40
Application
16-40(1)
A body corporate that is a *registered higher education provider may apply, in writing, to the Minister for approval as a higher education provider under this Act.
History
S 16-40(1) substituted by No 74 of 2011, s 3 and Sch 2 item 5, applicable in relation to an application for approval made on or after 29 January 2012. S 16-40(1) formerly read:
16-40(1)
A body corporate may apply in writing to the Minister for approval as a higher education provider.
16-40(1A)
However, if:
(a)
the body corporate made an application (the
earlier application
) under subsection (1); and
(b)
the Minister decided not to approve the earlier application;
the body corporate cannot make another application under that subsection within 6 months after the day on which notice of the decision on the earlier application was given to the body corporate.
History
S 16-40(1A) inserted by No 83 of 2017, s 3 and Sch 3 item 5, effective 17 August 2017.
16-40(2)
The application:
(a)
must be in the form approved by the Minister; and
(b)
must be accompanied by such information as the Minister requests; and
(c)
must be accompanied by the fee (if any) prescribed by, or worked out in accordance with the method prescribed by, the Higher Education Provider Guidelines.
Note:
The guidelines may prescribe different fees, or methods, for applications made by different kinds of applicant: see subsection 33(3A) of the Acts Interpretation Act 1901.
History
S 16-40(2) amended by No 86 of 2019, s 3 and Sch 1 item 1, by inserting para (c) and the note, effective 1 January 2020.
16-40(3)
A fee prescribed, or worked out in accordance with a method prescribed, for the purposes of subsection (2) must not be such as to amount to taxation.
History
S 16-40(3) inserted by No 86 of 2019, s 3 and Sch 1 item 2, effective 1 January 2020.
SECTION 16-42
16-42
Minister may seek information from TEQSA
(Repealed by No 23 of 2013)
History
S 16-42 repealed by No 23 of 2013, s 3 and Sch 5 item 1, effective 29 March 2013. S 16-42 formerly read:
SECTION 16-42 Minister may seek information from TEQSA
16-42
For the purposes of approving a body corporate as a higher education provider under this Act, the Minister may seek information from *TEQSA.
S 16-42 amended by No 160 of 2012, s 3 and Sch 2 item 20, by omitting all the words after "*TEQSA", applicable in relation to applications for approval as a higher education provider made before, on or after 29 November 2012. The words formerly read:
that:
(a)
relates to the body corporate's application for approval as a higher education provider; or
(b)
relates to the body corporate's ability to comply, or compliance, with the *quality and accountability requirements.
S 16-42 inserted by No 74 of 2011, s 3 and Sch 2 item 6, effective 29 January 2011.
SECTION 16-43
16-43
Minister may seek information from relevant VET regulator
(Repealed by No 23 of 2013)
History
S 16-43 repealed by No 23 of 2013 s 3 and Sch 5 item 1, effective 29 March 2013. S 16-43 formerly read:
SECTION 16-43 Minister may seek information from relevant VET regulator
16-43
For the purposes of approving a body corporate as a higher education provider under this Act, the Minister may seek information from the relevant *VET regulator.
S 16-43 inserted by No 160 of 2012, s 3 and Sch 2 item 21, applicable in relation to applications for approval as a higher education provider made before, on or after 29 November 2012.
SECTION 16-45
Minister may seek further information
16-45(1)
For
the purposes of determining an application, the Minister may, by notice in
writing, require an applicant to provide such further information as the Minister
directs within the period specified in the notice.
16-45(2)
If
an applicant does not comply with a requirement under subsection (1), the
application is taken to have been withdrawn.
16-45(3)
A
notice under this section must include a statement about the effect of subsection
(2).
SECTION 16-50
Minister to decide application
16-50(1)
The Minister must:
(a)
decide an application for approval as a higher education provider; and
(b)
cause the applicant to be notified in writing whether or not the applicant is approved as a higher education provider.
16-50(2)
For the purposes of paragraph
16-25(1)(f), the Minister may be satisfied that a body corporate is willing and able to meet the *quality and accountability requirements if the body gives the Minister such written undertakings as the Minister requires.
History
S 16-50(2) amended by No 72 of 2011, s 3 and Sch 1 item 4, by substituting "paragraph 16-25(1)(f)" for "paragraph 16-25(f)", effective 30 June 2011.
16-50(3)
The Minister's decision must be made:
(a)
within 90 days after receiving the application; or
(b)
if further information is requested under section
16-45 - within 60 days after the end of the period within which the information was required to be provided under that section;
whichever is the later.
16-50(3A)
However, contravention of subsection (3) does not affect the Minister's power to decide the application or the Minister's obligation to comply with subsection (1).
History
S 16-50(3A) inserted by No 6 of 2012, s 3 and Sch 1 item 1, applicable to decisions on applications made on or after 7 March 2012.
16-50(4)
If the Minister decides that an applicant is approved as a higher education provider, the notice must also contain such information as is specified in the Higher Education Provider Guidelines as information that must be provided to an applicant upon approval as a higher education provider.
SECTION 16-55
Approvals are legislative instruments
16-55(1)
A notice of approval under paragraph
16-50(1)(b) is a legislative instrument.
16-55(2)
A decision of the Minister to approve a body corporate as a higher education provider takes effect when the notice of approval commences under the
Legislation Act 2003.
Note:
Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.
History
S 16-55(2) substituted by No 126 of 2015, s 3 and Sch 1 item 260, effective 5 March 2016. S 16-55(2) formerly read:
16-55(2)
A decision of the Minister to approve a body corporate as a higher education provider takes effect when the notice of approval takes effect under the Legislative Instruments Act 2003.
Note:
Section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.
S 16-55(2) substituted by No 39 of 2009, s 3 and Sch 2 item 2, effective 24 June 2009. For application and transitional provisions, see note under s 16-5(3). S 16-55(2) formerly read:
16-55(2)
A decision of the Minister to approve a body corporate as a higher education provider takes effect at the later of the following times:
(a)
on the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the notice could be passed;
(b)
the day (if any) specified in the notice under paragraph 16-50(1)(b) as the day on which the approval takes effect.
SECTION 16-60
Conditions of approval
16-60(1)
The Minister may impose conditions on a body corporate's approval as a higher education provider. Such conditions need not be imposed at the time notice of approval is given to the provider.
16-60(2)
The Minister may vary a condition imposed under subsection (1).
16-60(3)
The conditions may include the following:
(a)
that a specified limit on the total number of students entitled to *FEE-HELP assistance applies to the provider for a specified period;
(b)
that a specified limit on the total amount of FEE-HELP assistance payable to the provider applies to the provider for a specified period;
(c)
that FEE-HELP assistance is payable only in relation to specified units of study offered by the higher education provider;
(d)
that FEE-HELP assistance is not payable in relation to specified units of study offered by the higher education provider;
(e)
that units of study provided in a specified manner or by a specified mode of delivery by the higher education provider are units in relation to which FEE-HELP assistance is unavailable.
History
S 16-60(3) inserted by No 83 of 2017, s 3 and Sch 3 item 6, effective 17 August 2017.
16-60(4)
Subsection (3) does not limit the conditions the Minister may impose on the approval.
History
S 16-60(4) inserted by No 83 of 2017, s 3 and Sch 3 item 6, effective 17 August 2017.
History
S 16-60 inserted by No 72 of 2011, s 3 and Sch 1 item 5, applicable in relation to a body approved as a higher education provider before, on or after 30 June 2011.
SECTION 16-65
16-65
Minister to cause higher education provider to be notified of change in condition of approval
The Minister must, within 30 days of his or her decision to impose or vary a condition on a higher education provider, cause the provider to be notified, in writing, of:
(a)
the decision; and
(b)
the reasons for the decision; and
(c)
the period for which the condition is imposed.
History
S 16-65 inserted by No 72 of 2011, s 3 and Sch 1 item 5, applicable in relation to a body approved as a higher education provider before, on or after 30 June 2011.
SECTION 16-70
Variation of approval if body's name changes
16-70(1)
If a body corporate is approved as a higher education provider under section
16-25 and the body's name changes, the Minister may vary the approval to include the new name.
16-70(2)
The Minister must notify the body in writing of the variation.
16-70(3)
A notice of variation under subsection (2) is a legislative instrument.
16-70(4)
The variation takes effect when the notice of variation commences under the
Legislation Act 2003.
Note:
Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.
History
S 16-70(4) substituted by No 126 of 2015, s 3 and Sch 1 item 261, effective 5 March 2016. S 16-70(4) formerly read:
16-70(4)
The variation takes effect when the notice of variation takes effect under the Legislative Instruments Act 2003.
Note:
Section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.
History
S 16-70 inserted by No 23 of 2013, s 3 and Sch 2 item 1, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013.
Division 19 - What are the quality and accountability requirements?
Subdivision 19-A - General
SECTION 19-1
19-1
The quality and accountability requirements
The
quality and accountability requirements
are:
(a)
the *financial viability requirements (see Subdivision
19-B); and
(b)
the *quality requirements (see Subdivision
19-C); and
(c)
the *fairness requirements (see Subdivision
19-D); and
(d)
the *compliance requirements (see Subdivision
19-E); and
(e)
the *contribution and fee requirements (see Subdivision
19-F); and
(f)
the *compact and academic freedom requirements (see Subdivision
19-G).
History
S 19-1 renumbered from s 19-1(1) by No 23 of 2013, s 3 and Sch 3 item 1, by omitting "(1)" before "The", applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider.
S 19-1(1) amended by No 104 of 2011, s 3 and Sch 3 item 2, by insering para (f), applicable in relation to the year commencing on 1 January 2012 or a later year.
19-1(2)
(Repealed by No 23 of 2013)
History
S 19-1(2) repealed by No 23 of 2013, s 3 and Sch 3 item 2, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider. S 19-1(2) formerly read:
19-1(2)
This Division does not of its own force require a higher education provider to do any act or thing.
Subdivision 19-B - The financial viability requirements
SECTION 19-5
19-5
Basic requirement
A higher education provider:
(a)
must be financially viable; and
(b)
must be likely to remain financially viable.
SECTION 19-10
Financial information must be provided
19-10(1)
A higher education provider must give to the Minister a financial statement for each *annual financial reporting period for the provider in which:
(a)
the provider receives assistance under this Chapter; or
(b)
a student of the provider receives assistance under Chapter
3.
19-10(2)
The statement:
(a)
must be in the form approved by the Minister; and
(ab)
must comply with any requirements prescribed by the Higher Education Provider Guidelines; and
(b)
must be provided together with a report on the statement by an independent *qualified auditor; and
(c)
must be provided within 6 months after the end of the *annual financial reporting period for which the statement was given.
History
S 19-10(2) amended by No 93 of 2020, s 3 and Sch 4 item 2, by inserting "must" in para (ab), effective 1 January 2021.
S 19-10(2) amended by No 83 of 2017, s 3 and Sch 3 item 7, by inserting para (ab), applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
19-10(2A)
Without limiting subsection
33(3A) of the
Acts Interpretation Act 1901, requirements made for the purposes of paragraph (2)(ab) of this section may make different provision in relation to different kinds of providers, circumstances or any other matter.
History
S 19-10(2A) inserted by No 83 of 2017, s 3 and Sch 3 item 8, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
19-10(3)
An
annual financial reporting period
, for a higher education provider, is the period of 12 months:
(a)
to which the provider's accounts relate; and
(b)
that is notified in writing to the Minister as the provider's annual financial reporting period.
SECTION 19-12
19-12
Minister to have regard to financial information and matters prescribed in Higher Education Guidelines
In determining whether a higher education provider is financially viable, and likely to remain so, the Minister must have regard to:
(a)
any financial statement provided by the provider under section
19-10; and
(b)
the matters (if any) prescribed by the Higher Education Provider Guidelines.
History
S 19-12 substituted by No 83 of 2017, s 3 and Sch 3 item 9, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021. S 19-12 formerly read:
SECTION 19-12 Minister to have regard to financial information
19-12
In determining whether a higher education provider is financially viable, and likely to remain so, the Minister must have regard to any financial statement provided by the provider under section 19-10.
Subdivision 19-C - The quality requirements
History
Subdiv 19-C substituted by No 74 of 2011, s 3 and Sch 2 item 7, effective 29 January 2012. Subdiv 19-C formerly read:
Subdivision 19-C - The quality requirements
SECTION 19-15 Provider must maintain quality
19-15(1)
A higher education provider must operate, and continue to operate, at an appropriate level of quality for an Australian higher education provider.
19-15(2)
The Minister must not determine that a higher education provider meets an appropriate level of quality for an Australian higher education provider, unless the Minister is satisfied that:
(a)
the provider meets the requirements of section 19-20; and
(b)
if the provider is not a *Table A provider - the provider meets the requirements of section 19-25; and
(c)
if the provider is a Table A provider - the provider meets the requirements of section 19-27.
History
S 19-15(2) amended by No 72 of 2007, s 3 and Sch 1 item 9, by substituting paras (a), (b) and (c) for paras (a) and (b), effective 31 December 2007. Paras (a) and (b) formerly read:
(a)
if the provider is not a *Table A provider - the provider meets the requirements of sections 19-20 and 19-25; or
(b)
if the provider is a Table A provider - the provider meets the requirements of section 19-27.
SECTION 19-20
SECTION 19-20 Provider to comply with National Protocols etc.
19-20
A higher education provider must:
(a)
be assessed, by a *government accreditation authority, as meeting the relevant requirements set out in the *National Protocols; and
(b)
comply with any requirement imposed on the provider by a government accreditation authority; and
(c)
comply with any requirement imposed on the provider by the Minister in writing in order to implement a specified recommendation of a *quality auditing body.
History
S 19-20 amended by No 72 of 2007, s 3 and Sch 1 items 10 to 12, by omitting "(other than a *Table A provider)" after "A higher education provider", substituting para (a) and substituting "a government accreditation authority" for "an authorised accreditation authority listed on the Australian Qualifications Framework Register" in para (b), effective 31 December 2007. Para (a) formerly read:
(a)
be assessed, by an authorised accreditation authority listed in the *Australian Qualifications Framework Register, as meeting the relevant protocols in the *National Protocols; and
SECTION 19-25 Quality assurance - provider (other than Table A provider)
19-25(1)
A higher education provider (other than a *Table A provider) must be audited:
(a)
by a *quality auditing body for the provider; and
(b)
as the auditing body requires.
History
S 19-25(1) amended by No 89 of 2008, s 3 and Sch 1 item 1, by inserting "for the provider" after "body" in para (a), effective 20 September 2008.
19-25(2)
The provider must also:
(a)
after a request from a *quality auditing body for the provider to audit the provider, allow the audit to start within the time agreed to by the body and provider; and
(b)
fully co-operate with the auditing body in the course of its audit; and
(c)
pay to the auditing body any charges payable for such an audit.
History
S 19-25(2) amended by No 89 of 2008, s 3 and Sch 1 item 2, by inserting "for the provider" after "body" in para (a), effective 20 September 2008.
19-25(3)
The provider's agreement under paragraph (2)(a) must be given to the *quality auditing body within one month after the body makes the request to the provider.
SECTION 19-27 Quality assurance - Table A provider
19-27(1)
A *Table A provider must be audited by a *quality auditing body for the provider at least once every 5 years.
History
S 19-27(1) amended by No 89 of 2008, s 3 and Sch 1 item 3, by inserting "for the provider", effective 20 September 2008.
19-27(2)
The provider must, in relation to each audit of the provider:
(a)
either:
(i)
before the start of the audit, reach agreement with the body on the time of, and the arrangements for, the audit; or
(ii)
comply with the Minister's determination under subsection (3); and
(b)
in relation to each audit, comply with any requests, made in the course of the audit by the body conducting the audit, that are reasonable having regard to the provider's circumstances.
19-27(3)
If the provider and the *quality auditing body are unable to agree on matters referred to in subparagraph (2)(a)(i) in relation to an audit of the provider, the Minister may, after consulting with the provider, determine in writing the audit arrangements for the provider.
SECTION 19-29 Quality auditing bodies
19-29
The Higher Education Provider Guidelines may:
(a)
list a body as a *quality auditing body for one or more kinds of higher education provider; and
(b)
set out requirements that must be met by quality auditing bodies in conducting audits of higher education providers.
History
S 19-29 inserted by No 89 of 2008, s 3 and Sch 1 item 4, effective 20 September 2008.
SECTION 19-15
19-15
Provider must maintain quality
A higher education provider must operate, and continue to operate, at a level of quality:
(a)
that meets the Threshold Standards (within the meaning of the *TEQSA Act); and
(b)
that meets the requirements imposed by or under the TEQSA Act on, or in relation to, the provider.
History
S 19-15 substituted by No 74 of 2011, s 3 and Sch 2 item 17, effective 29 January 2012. For former wording see note under Subdiv 19-C heading.
Subdivision 19-D - The fairness requirements
SECTION 19-30
19-30
Basic requirement
A higher education provider must treat fairly:
(a)
all of its students; and
(b)
all of the persons seeking to enrol
with the provider.
SECTION 19-35
Benefits and opportunities must be available equally to all students
19-35(1)
A higher education provider that receives assistance under this Chapter in respect of a student, or a class of students, must ensure that the benefits of, and the opportunities created by, the assistance are made equally available to all such students, or students in such class, in respect of whom that assistance is payable.
19-35(2)
A higher education provider that receives:
(a)
any grant or allocation under this Chapter; or
(b)
any payment under section
124-1 on account of amounts of *OS-HELP assistance;
must have open, fair and transparent procedures that, in the provider's reasonable view, are based on merit for making decisions about the selection of students who are to benefit from the grant, allocation or payment.
19-35(3)
Subsection
(2) does not prevent a higher education provider taking into account, in making such decisions about the selection of students, educational disadvantages that a particular student has experienced.
19-35(4)
A higher education provider that receives any payment under section
110-1 on account of amounts of *FEE-HELP assistance for a unit of study must have open, fair and transparent procedures that, in the provider's reasonable view, are based on merit for making decisions about:
(a)
the selection, from among the persons who seek to enrol with the provider in that unit of study, of persons to enrol; and
(b)
the treatment of students undertaking that unit of study.
19-35(5)
Subsection
(4) does not prevent a higher education provider taking into account, in making decisions mentioned in that subsection, educational disadvantages that a particular student has experienced.
19-35(5)
A higher education provider that receives any payment under section
128D-1 on account of amounts of *STARTUP-HELP assistance for an *accelerator program course must have open, fair and transparent procedures that, in the provider's reasonable view, are based on merit for making decisions about:
(a)
the selection, from among the persons who seek to enrol with the provider in that accelerator program course, of persons to enrol; and
(b)
the selection of students for receipt of STARTUP-HELP assistance in relation to that accelerator program course; and
(c)
the treatment of students undertaking that accelerator program course.
History
S 19-35(5) inserted by No 36 of 2023, s 3 and Sch 1 item 4, effective 29 June 2023.
19-35(6)
Subsections
(4) and
(5) do not prevent a higher education provider taking into account, in making decisions mentioned in those subsections, educational disadvantages that a particular student has experienced.
History
S 19-35(6) inserted by No 36 of 2023, s 3 and Sch 1 item 4, effective 29 June 2023.
SECTION 19-36
19-36
Misrepresenting assistance under Chapter 3
A higher education provider must not represent, whether by publishing or otherwise, that assistance payable under Chapter
3:
(a)
is not a loan; or
(b)
does not have to be repaid.
Civil penalty: 240 penalty units.
History
S 19-36 inserted by No 83 of 2017, s 3 and Sch 3 item 10, applicable on and after 1 January 2018 in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-36A
Offering certain inducements
19-36A(1)
A higher education provider must not offer or provide a benefit, or cause a benefit to be offered or provided, if the benefit would be reasonably likely to induce a person to make a *request for Commonwealth assistance in relation to enrolling in a unit of study with the provider.
Civil penalty: 120 penalty units.
19-36A(2)
Subsection
(1) does not apply in relation to a benefit specified in the Higher Education Provider Guidelines.
19-36A(3)
A higher education provider must not offer or provide a benefit, or cause a benefit to be offered or provided, if the benefit would be reasonably likely to induce a person to make a *request for Commonwealth assistance in relation to enrolling in an *accelerator program course with the provider.
Civil penalty: 120 penalty units.
History
S 19-36A(3) inserted by No 36 of 2023, s 3 and Sch 1 item 5, effective 29 June 2023.
19-36A(4)
Subsection
(3) does not apply in relation to a benefit specified in the Higher Education Provider Guidelines.
History
S 19-36A(4) inserted by No 36 of 2023, s 3 and Sch 1 item 5, effective 29 June 2023.
History
S 19-36A inserted by No 83 of 2017, s 3 and Sch 3 item 10, applicable on and after 1 January 2018 in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-36B
Engaging in cold-calling
19-36B(1)
This section applies if a higher education provider cold-calls another person to market, advertise or promote a unit of study or a *course of study, or an *accelerator program course.
History
S 19-36B(1) amended by No 36 of 2023, s 3 and Sch 1 item 6, by inserting ", or an *accelerator program course", effective 29 June 2023.
19-36B(2)
The higher education provider must not mention the possible availability of assistance payable under Chapter
3 for students undertaking the unit of study or *course of study, or *accelerator program course.
Civil penalty: 60 penalty units.
History
S 19-36B(2) amended by No 36 of 2023, s 3 and Sch 1 item 7, by inserting ", or *accelerator program course", effective 29 June 2023.
S 19-36B(2) amended by No 55 of 2021, s 3 and Sch 1 item 24, by substituting "assistance payable under Chapter 3" for "*FEE-HELP assistance", applicable in relation to cold-calls made on or after 25 June 2021.
19-36B(3)
For the purposes of this section,
cold-calling
includes making unsolicited contact with a person:
(a)
in person; or
(b)
by telephone, email or other form of electronic communication.
19-36B(4)
The Higher Education Provider Guidelines may set out conduct that is taken to be
cold-calling
for the purposes of this section.
History
S 19-36B inserted by No 83 of 2017, s 3 and Sch 3 item 10, applicable on and after 1 January 2018 in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-36C
Use of third party contact lists
19-36C(1)
This section applies if a higher education provider:
(a)
receives a person's contact details from another person; and
(b)
contacts the student:
(i)
to market, advertise or promote a unit of study or a *course of study, or enrol the student in a unit of study or course of study; or
(ii)
to market, advertise or promote an *accelerator program course, or enrol the student in an accelerator program course.
History
S 19-36C(1) amended by No 36 of 2023, s 3 and Sch 1 item 8, by substituting para (b), effective 29 June 2023. Para (b) formerly read:
(b)
contacts the student to market, advertise or promote a unit of study or a *course of study, or enrol the student in a unit of study or course of study.
19-36C(2)
The higher education provider must not mention the possible availability of assistance payable under Chapter
3 for students undertaking the unit of study or *course of study, or *accelerator program course.
Civil penalty: 60 penalty units.
History
S 19-36C(2) amended by No 36 of 2023, s 3 and Sch 1 item 9, by inserting ", or *accelerator program course", effective 29 June 2023.
S 19-36C(2) amended by No 55 of 2021, s 3 and Sch 1 item 24, by substituting "assistance payable under Chapter 3" for "*FEE-HELP assistance", applicable in relation to a contact with a student (as referred to in paragraph 19-36C(1)(b) of that Act) that occurs on or after 25 June 2021.
19-36C(3)
Subsection (2) does not apply in circumstances specified in the Higher Education Provider Guidelines.
History
S 19-36C inserted by No 83 of 2017, s 3 and Sch 3 item 10, applicable on and after 1 January 2018 in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-36D
Other marketing requirements
19-36D(1)
The Higher Education Provider Guidelines may set out requirements in relation to the marketing of courses in circumstances where assistance may be payable by the Commonwealth under Chapter
3.
19-36D(2)
A higher education provider contravenes this subsection if the provider:
(a)
is subject to a requirement under subsection (1); and
(b)
fails to comply with the requirement.
Civil penalty: 60 penalty units.
History
S 19-36D inserted by No 83 of 2017, s 3 and Sch 3 item 10, applicable on and after 1 January 2018 in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-36E
19-36E
Requirements relating to requests for Commonwealth assistance
A higher education provider must not complete any part of a *request for Commonwealth assistance that a student is required to complete.
Civil penalty: 120 penalty units.
History
S 19-36E inserted by No 83 of 2017, s 3 and Sch 3 item 10, applicable on and after 1 January 2018 in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-37
Requiring membership of certain organisations or payment of certain amounts
19-37(1)
A higher education provider must not:
(a)
require a person to be or to become a member of an organisation of students, or of students and other persons; or
(b)
require a person enrolled with, or seeking to enrol with, the provider to pay to the provider or any other entity an amount in respect of an organisation of students, or of students and other persons;
unless the person has chosen to be or to become a member of the organisation.
19-37(2)
A higher education provider must not require a person enrolled with, or seeking to enrol with, the provider to pay to the provider or any other entity an amount for the provision to students of an amenity, facility or service that is not of an academic nature, unless the person has chosen to use the amenity, facility or service.
19-37(3)
Subsection
(2) does not apply to an amount that the higher education provider requires the person to pay if the amount is for goods or services that:
(a)
are essential for the course of study, or *accelerator program course, in which the person is enrolled or seeking to enrol; and
(b)
the person has the choice of acquiring from, but does not acquire from, a supplier other than the higher education provider; and
(c)
either:
(i)
are goods that become the property of the person that are not intended to be consumed during the course of study or accelerator program course; or
(ii)
consist of food, transport or accommodation associated with provision of field trips in connection with the course of study or accelerator program course.
History
S 19-37(3) amended by No 36 of 2023, s 3 and Sch 1 items 10 and 11, by inserting ", or *accelerator program course," in para (a) and "or accelerator program course" in para (c)(i) and (ii), effective 29 June 2023.
19-37(4)
Subsection
(2) does not apply to a *student services and amenities fee that the higher education provider requires the person to pay.
History
S 19-37(4) inserted by No 130 of 2011, s 3 and Sch 1 item 4, effective 1 January 2012.
19-37(5)
A
student services and amenities fee
is an amount:
(a)
that a higher education provider requires a person enrolled, or seeking to enrol, with the provider to pay for a period starting on or after 1 January 2012 to support the provision to students of amenities and services not of an academic nature, regardless of whether the person chooses to use any of those amenities and services; and
(b)
that is determined by the provider in accordance with the Administration Guidelines; and
(c)
that is not more than the amount worked out for that period for the person in accordance with those guidelines; and
(d)
that is payable on a day determined in accordance with those guidelines; and
(e)
that is such that the total of all amounts that are covered by paragraphs
(a),
(b),
(c) and
(d) for the same provider and person is not more than $263, for amounts for periods falling wholly or partly within a calendar year starting on or after 1 January 2012.
Note 1:
The Administration Guidelines are made by the Minister under section 238-10.
Note 2:
The amount of $263 mentioned in subparagraph (5)(e) is indexed under Part 5-6.
Note 3:
Paragraph 19-102(3)(b) prevents a student services and amenities fee from being a fee as defined in section 19-102.
History
S 19-37(5) amended by No 38 of 2012, s 3 and Sch 1 items 1-4, by substituting "1 January 2012" for "1 January 2011" in para (a) and (e), and substituting "$263" for "$250" in para (e) and note 2, effective 1 January 2012.
S 19-37(5) inserted by No 130 of 2011, s 3 and Sch 1 item 4, effective 1 January 2012.
19-37(6)
If a higher education provider determines a *student services and amenities fee, the provider:
(a)
must publish, in accordance with the Administration Guidelines:
(i)
enough information to enable a person liable to pay the fee to work out the amount of the fee; and
(ii)
notice of the day on which the fee is payable; and
(b)
must, on request by a person who is or may become liable to pay the fee, inform the person of the amount of the fee and the day on which it is or would be payable.
History
S 19-37(6) inserted by No 130 of 2011, s 3 and Sch 1 item 4, effective 1 January 2012.
SECTION 19-38
Higher education providers' expenditure of student services and amenities fees
19-38(1)
A higher education provider must not spend an amount paid to the provider as a *student services and amenities fee to support:
(a)
a political party; or
(b)
the election of a person as a member of:
(i)
the legislature of the Commonwealth, a State or a Territory; or
(ii)
a local government body.
19-38(2)
If a higher education provider pays a person or organisation an amount paid to the provider as a *student services and amenities fee, the provider must make the payment on the condition that none of the payment is to be spent by the person or organisation to support:
(a)
a political party; or
(b)
the election of a person as a member of:
(i)
the legislature of the Commonwealth, a State or a Territory; or
(ii)
a local government body.
19-38(3)
A higher education provider must not spend, for a purpose other than that specified in subsection
(4), an amount paid to the provider as a *student services and amenities fee.
19-38(4)
Subsection
(3) does not prohibit expenditure for a purpose that relates to the provision of any of the following services:
(a)
providing food or drink to students on a campus of the higher education provider;
(b)
supporting a sporting or other recreational activity by students;
(c)
supporting the administration of a club most of whose members are students;
(d)
caring for children of students;
(e)
providing legal services to students;
(f)
promoting the health or welfare of students;
(g)
helping students secure accommodation;
(h)
helping students obtain employment or advice on careers;
(i)
helping students with their financial affairs;
(j)
helping students obtain insurance against personal accidents;
(k)
supporting debating by students;
(l)
providing libraries and reading rooms (other than those provided for academic purposes) for students;
(m)
supporting an artistic activity by students;
(n)
supporting the production and dissemination to students of media whose content is provided by students;
(o)
helping students develop skills for study, by means other than undertaking *courses of study or *accelerator program courses in which they are enrolled;
(p)
advising on matters arising under the higher education provider's rules (however described);
(q)
advocating students' interests in matters arising under the higher education provider's rules (however described);
(r)
giving students information to help them in their orientation;
(s)
helping meet the specific needs of *overseas students relating to their welfare, accommodation and employment.
Note:
Examples of expenditure for a purpose that relates to the provision of a service specified in subsection (4) include:
(a) expenditure by the higher education provider in directly providing the service; and
(b) expenditure by the higher education provider in getting someone else to provide the service or subsidising the provision of the service by someone else; and
(c) expenditure by the higher education provider on infrastructure for the provision of the service.
History
S 19-38(4) amended by No 36 of 2023, s 3 and Sch 1 item 12, by inserting "or *accelerator program courses" in para (o), effective 29 June 2023.
19-38(5)
Without limiting who is a child of a person for the purposes of paragraph
(4)(d), someone is the
child
of a person if he or she is a child of the person within the meaning of the
Family Law Act 1975.
19-38(6)
To avoid doubt, subsections
(1),
(2) and
(3) apply to an advance made to a higher education provider on account of *SA-HELP assistance in the same way as they apply to an amount paid to the provider as a *student services and amenities fee.
Note:
An amount of SA-HELP assistance paid to a provider is an amount paid to the provider as a student services and amenities fee because, under section 128-1, the SA-HELP assistance is paid to discharge the student's liability to pay the fee.
19-38(7)
Subsection
(6) does not limit subsection
164-10(2).
Note:
Subsection 164-10(2) applies to an advance on account of an amount the conditions that would apply to payment of the amount.
History
S 19-38 inserted by No 130 of 2011, s 3 and Sch 1 item 5, effective 1 January 2012.
SECTION 19-40
19-40
Compliance with the tuition assurance requirements
(Repealed by No 111 of 2019)
History
S 19-40 repealed by No 111 of 2019, s 3 and Sch 2 item 4, effective 1 January 2020. S 19-40 formerly read:
SECTION 19-40 Compliance with the tuition assurance requirements
19-40(1)
A higher education provider, other than a *Table A provider or a body declared under subsection (2), must comply with the *tuition assurance requirements.
Civil penalty: 60 penalty units.
History
S 19-40(1) amended by No 83 of 2017, s 3 and Sch 3 item 11, by inserting civil penalty at the end, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017.
19-40(2)
The Minister may, by declaration in writing, exempt a specified higher education provider from the requirement in subsection (1).
19-40(3)
An exemption:
(a)
is subject to such conditions as are specified in the exemption; and
(b)
may be expressed to be in force for a period specified in the exemption.
Note:
A body will not be exempt if a condition of the exemption is not complied with.
19-40(4)
An exemption given under this section is not a legislative instrument.
SECTION 19-42
Assessment of students as academically suited
19-42(1)
Before enrolling a student in a unit of study, a higher education provider must assess the student as academically suited to undertake the unit concerned.
Civil penalty: 120 penalty units.
19-42(1A)
Before enrolling a person in an *accelerator program course, a higher education provider must assess the person as academically suited to undertake that accelerator program course.
Civil penalty: 120 penalty units.
History
S 19-42(1A) inserted by No 36 of 2023, s 3 and Sch 1 item 13, effective 29 June 2023.
19-42(2)
The assessment for the purposes of subsection
(1) or
(1A) must be done in accordance with any requirements specified in the Higher Education Provider Guidelines.
History
S 19-42(2) amended by No 36 of 2023, s 3 and Sch 1 item 14, by inserting "or (1A)", effective 29 June 2023.
History
S 19-42 inserted by No 83 of 2017, s 3 and Sch 3 item 12, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-43
Support for students policy
Providers must have a support for students policy
19-43(1)
A higher education provider must have a policy (a
support for students policy
) that deals with the support provided to the provider's students to assist them to successfully complete the units of study in which they are enrolled.
19-43(2)
A higher education provider's support for students policy must:
(a)
include information on:
(i)
the provider's processes for identifying students that are at risk of not successfully completing their units of study; and
(ii)
the supports available from or on behalf of the provider to assist students to successfully complete the units of study in which they are enrolled; and
(b)
comply with any requirements specified in the Higher Education Provider Guidelines.
19-43(3)
Without limiting paragraph
(2)(b), the requirements may relate to the following:
(a)
requirements for the higher education provider's support for students policy to include specified information;
(b)
requirements about the presentation, format and availability of the policy.
Provider to comply with support for students policy
19-43(4)
A higher education provider must comply with its support for students policy.
Provider must report on compliance with support for students policy
19-43(5)
A higher education provider must give a report to the Minister about the provider's compliance with its support for students policy.
19-43(6)
The report must:
(a)
include the information required by the Higher Education Provider Guidelines; and
(b)
be given within the period, or at the intervals, specified in the Higher Education Provider Guidelines.
Civil penalty for non-compliance
19-43(7)
A higher education provider contravenes this subsection if the provider:
(a)
is subject to a requirement under this section; and
(b)
does not comply with the requirement.
Civil penalty: 60 penalty units.
History
S 19-43 inserted by No 89 of 2023, s 3 and Sch 1 item 6, applicable on and after 1 January 2024 in relation to higher education providers approved under section 16-25, or taken to be approved under section 16-5, whether approved, or taken to be approved, before or after 1 January 2024.
SECTION 19-45
Student grievance and review procedures
Must have grievance and review procedures
19-45(1)
A higher education provider must have:
(a)
a grievance procedure for dealing with complaints by the provider's students, and persons who seek to enrol in *courses of study or *accelerator program courses with the provider, relating to non-academic matters; and
(b)
a grievance procedure for dealing with complaints by the provider's students relating to academic matters; and
(c)
a review procedure for dealing with review of decisions made by the provider:
(i)
under subsection 36-12(2) or 36-20(1); or
(ii)
relating to assistance under Chapter 3.
Note:
Part 5-7 also deals with reconsideration and review of decisions.
History
S 19-45(1) amended by No 89 of 2023, s 3 and Sch 1 item 7, by substituting "or" for ", paragraph 36-13(2)(b) or subsection" in para (c)(i), effective 1 January 2024.
S 19-45(1) amended by No 36 of 2023, s 3 and Sch 1 item 15, by inserting "or *accelerator program courses" in para (a), effective 29 June 2023.
S 19-45(1) amended by No 93 of 2020, s 3 and Sch 4 item 39A, by substituting para (c)(i), effective 1 January 2022. Para (c)(i) formerly read:
(i)
under subsection 36-12(2) or 36-20(1); or
S 19-45(1) amended by No 93 of 2020, s 3 and Sch 4 item 3, by substituting para (c)(i), effective 1 January 2021. Para (c)(i) formerly read:
(i)
under section 36-20; or
S 19-45(1) amended by No 104 of 2011, s 3 and Sch 2 item 2, by substituting "36-20" for "36-22" in para (c)(i), 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.
No 104 of 2011, s 3 and Sch 2 item 39 contains the following saving provisions:
39 Saving - review procedures and appointments of review officers
(1)
A review procedure referred to in paragraph 19-45(1)(c) of the old Act that was in force immediately before commencement, so far as it relates to review of decisions made under section 36-22 of the old Act, has effect on and after commencement as if it also related to decisions made under section 36-20 of the new Act.
(2)
An appointment referred to in subsection 19-50(1) of the old Act that was in force immediately before commencement, so far as it relates to review of decisions made under section 36-22 of the old Act, has effect on and after commencement as if it also related to decisions made under section 36-20 of the new Act.
19-45(2)
Except where the provider is a *Table A provider, the grievance procedures referred to in paragraphs
(1)(a) and
(b) must comply with the requirements of the Higher Education Provider Guidelines.
19-45(3)
The review procedure referred to in paragraph
(1)(c) must comply with the requirements of the Higher Education Provider Guidelines.
Guidelines may provide for matters relating to reviews
19-45(4)
The Higher Education Provider Guidelines may provide for matters relating to reviews of decisions made by higher education providers:
(a)
under subsection
36-12(2) or
36-20(1); or
(b)
relating to assistance under Chapter
3;
including procedures that are to be followed by *review officers when reviewing those decisions.
History
S 19-45(4) amended by No 89 of 2023, s 3 and Sch 1 item 8, by substituting "or" for ", paragraph 36-13(2)(b) or subsection" in para (a), effective 1 January 2024.
S 19-45(4) amended by No 93 of 2020, s 3 and Sch 4 item 39B, by substituting para (a), effective 1 January 2022. Para (a) formerly read:
(a)
under subsection 36-12(2) or 36-20(1); or
S 19-45(4) amended by No 93 of 2020, s 3 and Sch 4 item 4, by substituting para (a), effective 1 January 2021. Para (a) formerly read:
(a)
under section 36-20; or
S 19-45(4) amended by No 104 of 2011, s 3 and Sch 2 item 3, by substituting "36-20" for "36-22" in para (a), 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.
Provider to comply with procedures
19-45(5)
The provider must comply with its grievance and review procedures.
Civil penalty: 60 penalty units.
History
S 19-45(5) amended by No 83 of 2017, s 3 and Sch 3 item 13, by inserting civil penalty at the end, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
Provider to provide information about procedures
19-45(6)
The provider must publish, and make publicly available, up to date information setting out the procedures.
Provider to provide information about other complaint mechanisms
19-45(7)
The provider must publish information about any other complaint mechanisms available to complain about the provider's decisions.
SECTION 19-50
Higher education providers to appoint review officers
19-50(1)
A higher education provider must appoint a *review officer to undertake reviews of decisions made by the provider:
(a)
under subsection
36-12(2) or
36-20(1); or
(b)
relating to assistance under Chapter
3.
Note:
The Secretary may delegate to a review officer of a higher education provider the power to reconsider decisions of the provider under Division 209: see subsection 238-1(2).
History
S 19-50(1) amended by No 89 of 2023, s 3 and Sch 1 item 8, by substituting "or" for ", paragraph 36-13(2)(b) or subsection" in para (a), effective 1 January 2024.
S 19-50(1) amended by No 93 of 2020, s 3 and Sch 4 item 39C, by substituting para (a), effective 1 January 2022. Para (a) formerly read:
(a)
under subsection 36-12(2) or 36-20(1); or
S 19-50(1) amended by No 93 of 2020, s 3 and Sch 4 item 5, by substituting para (a), effective 1 January 2021. Para (a) formerly read:
(a)
under section 36-20; or
S 19-50(1) amended by No 104 of 2011, s 3 and Sch 2 item 4, by substituting "36-20" for "36-22" in para (a), 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. For saving provisions see note under s 19-45(1).
19-50(2)
A
review officer
of a higher education provider is a person, or a person included in a class of persons, whom:
(a)
the chief executive officer of the provider; or
(b)
a delegate of the chief executive officer of the provider;
has appointed to be a review officer of the provider for the purposes of reviewing decisions made by the provider:
(c)
under subsection
36-12(2) or
36-20(1)); or
(d)
relating to assistance under Chapter
3.
History
S 19-50(2) amended by No 89 of 2023, s 3 and Sch 1 item 8, by substituting "or" for ", paragraph 36-13(2)(b) or subsection" in para (c), effective 1 January 2024.
S 19-50(2) amended by No 93 of 2020, s 3 and Sch 4 item 39D, by substituting para (c), effective 1 January 2022. Para (c) formerly read:
(c)
under subsection 36-12(2) or 36-20(1); or
S 19-50(2) amended by No 93 of 2020, s 3 and Sch 4 item 6, by substituting para (c), effective 1 January 2021. Para (c) formerly read:
(c)
under section 36-20; or
S 19-50(2) amended by No 104 of 2011, s 3 and Sch 2 item 5, by substituting "36-20" for "36-22" in para (c), 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.
SECTION 19-55
19-55
Review officers not to review own decisions
A higher education provider must ensure that
a *review officer of the provider:
(a)
does
not review a decision that the review officer was involved in making; and
(b)
in reviewing a decision
of the provider, occupies a position that is senior to that occupied by any
person involved in making the original decision.
SECTION 19-60
Procedures relating to personal information
19-60(1)
A higher education provider must comply with the Australian Privacy Principles in respect of *personal information obtained for the purposes of subsection
36-12(2) or
36-20(1) or Chapter
3 or
4.
History
S 19-60(1) amended by No 89 of 2023, s 3 and Sch 1 item 9, by substituting "or" for ", paragraph 36-13(2)(b), subsection", effective 1 January 2024.
S 19-60(1) amended by No 93 of 2020, s 3 and Sch 4 item 39E, by substituting "subsection 36-12(2), paragraph 36-13(2)(b), subsection 36-20(1) or" for "subsection 36-12(2) or 36-20(1)", effective 1 January 2022.
S 19-60(1) amended by No 93 of 2020, s 3 and Sch 4 item 7, by substituting "subsection 36-12(2) or 36-20(1)" for "section 36-20", effective 1 January 2021.
S 19-60(1) amended by No 197 of 2012, s 3 and Sch 5 item 42, by substituting "Australian Privacy Principles" for "information privacy principles set out in section 14 of the Privacy Act 1988", effective 12 March 2014.
S 19-60(1) amended by No 104 of 2011, s 3 and Sch 2 item 6, by substituting "36-20" for "36-22", 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.
19-60(2)
A higher education provider must have a procedure under which a student enrolled with the provider may apply to the provider for, and receive, a copy of *personal information that the provider holds in relation to that student.
19-60(3)
The provider must comply with:
(a)
the requirements of the Higher Education Provider Guidelines relating to *personal information in relation to students; and
(b)
the procedure referred to in subsection
(2).
Subdivision 19-E - The compliance requirements
SECTION 19-65
Basic requirements
19-65(1)
A higher education provider must comply with:
(a)
this Act and the regulations; and
(b)
the Guidelines made under section
238-10 that apply to the provider; and
(c)
a condition imposed on the provider's approval as a higher education provider.
History
S 19-65(1) substituted by No 23 of 2013, s 3 and Sch 3 item 3, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider. S 19-65(1) formerly read:
19-65(1)
A higher education provider must comply with the requirements of this Act and the regulations, and the requirements of the Guidelines made under section 238-10 that apply to the provider.
19-65(2)
A higher education provider must provide information to the Minister in relation to the affairs of the provider in accordance with the requirements of this Act.
19-65(3)
A higher education provider's administrative arrangements must support the provision of assistance under this Act.
SECTION 19-66
Higher education provider charge
19-66(1)
A higher education provider must pay the following when it is due and payable by the provider:
(a)
*higher education provider charge;
(b)
any penalty for late payment of higher education provider charge.
Note:
Higher education provider charge is imposed by the Higher Education Support (Charges) Act 2019.
19-66(2)
The Higher Education Provider Guidelines may make provision for, or in relation to, all or any of the following matters:
(a)
the issue of notices setting out the amount of *higher education provider charge payable by a provider;
(b)
when higher education provider charge is due and payable;
(c)
the issue of notices extending the time for payment of higher education provider charge;
(d)
penalties for late payment of higher education provider charge;
(e)
to whom higher education provider charge and any penalties for late payment are payable;
(f)
the refund, remission or waiver of higher education provider charge or penalties for late payment;
(g)
the review of decisions made under the Higher Education Provider Guidelines in relation to the collection or recovery of higher education provider charge;
(h)
any other matters relating to the collection or recovery of higher education provider charge.
History
S 19-66 inserted by No 86 of 2019, s 3 and Sch 1 item 3, effective 1 January 2020.
SECTION 19-66A
Tuition protection requirements
19-66A(1)
A higher education provider to whom Part
5-1A applies must comply with the *tuition protection requirements.
Note:
See section 166-5 for the providers to whom Part 5-1A applies.
Civil penalty: 60 penalty units.
19-66A(2)
A higher education provider to whom Part
5-1A applies must pay the following when it is due and payable by the provider:
(a)
*HELP tuition protection levy;
(b)
any penalty for late payment of HELP tuition protection levy.
Note:
HELP tuition protection levy is imposed by the Higher Education Support (HELP Tuition Protection Levy) Act 2020.
History
S 19-66A(2) amended by No 101 of 2020, s 3 and Sch 2 item 71, by substituting the note, effective 1 January 2021. The note formerly read:
Note:
HELP tuition protection levy is imposed by the Higher Education Support (HELP Tuition Protection Levy) Act 2019. Amounts of levy for a year are either determined before, or indexed on, 1 August in the year: see sections 9 and 10 of that Act.
19-66A(3)
The Higher Education Provider Guidelines may make provision for, or in relation to, all or any of the following matters:
(a)
the issue of notices setting out the amount of *HELP tuition protection levy payable by a provider;
(b)
when HELP tuition protection levy is due and payable;
(c)
the issue of notices extending the time for payment of HELP tuition protection levy;
(d)
penalties for late payment of HELP tuition protection levy;
(e)
to whom HELP tuition protection levy and any penalties for late payment are payable;
(f)
the refund, remission or waiver of HELP tuition protection levy or penalties for late payment;
(g)
the review of decisions made under the Higher Education Provider Guidelines in relation to the collection or recovery of HELP tuition protection levy;
(h)
any other matters relating to the collection or recovery of HELP tuition protection levy.
History
S 19-66A inserted by No 111 of 2019, s 3 and Sch 2 item 5, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 19-67
Special requirements for student services, amenities, representation and advocacy in 2012 and later years
19-67(1)
A higher education provider that receives a grant under Part 2-2 in respect of the year 2012 or a later year must comply in respect of the year with the requirements of the Student Services, Amenities, Representation and Advocacy Guidelines as those guidelines were in force on the 30 June just before the year.
Note:
The Student Services, Amenities, Representation and Advocacy Guidelines are made by the Minister under section 238-10.
19-67(2)
The Student Services, Amenities, Representation and Advocacy Guidelines may provide for:
(a)
requirements for providing students with information about services that are not of an academic nature and that support students; and
(b)
requirements for providing students with access to such services; and
(c)
requirements relating to the representation and advocacy of the interests of students.
19-67(3)
However, the Student Services, Amenities, Representation and Advocacy Guidelines cannot require a provider to fund an organisation of students, or of students and other persons.
19-67(4)
Subsection
19-65(1) does not apply in relation to the Student Services, Amenities, Representation and Advocacy Guidelines.
History
S 19-67 inserted by No 130 of 2011, s 3 and Sch 1 item 6, effective 1 January 2012.
SECTION 19-70
Provider to provide statement of general information
19-70(1)
A higher education provider must give to the Minister such statistical and other information that the Minister by notice in writing requires from the provider in respect of:
(a)
the provision of higher education by the provider; and
(b)
compliance by the provider with the requirements of this Act.
19-70(2)
The information must be provided:
(a)
in a form (if any) approved by the Minister for the information; and
(b)
in accordance with such other requirements as the Minister makes.
History
S 19-70(2) amended by No 6 of 2012, s 3 and Sch 1 item 21, by substituting "(if any) approved by the Minister for the information" for "approved by the Minister" in para (a), applicable in relation to information required after 7 March 2012.
19-70(3)
A notice under this section must not require the giving of information that a higher education provider is required to give to the Minister under section
19-95.
19-70(4)
A higher education provider contravenes this subsection if the provider:
(a)
is subject to a requirement under this section; and
(b)
does not comply with the requirement.
Civil penalty: 60 penalty units.
History
S 19-70(4) inserted by No 83 of 2017, s 3 and Sch 3 item 14, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-71
Co-operation with HESA and TEQSA investigators
19-71(1)
A higher education provider must co-operate with *HESA investigators and *TEQSA investigators who are performing functions or exercising powers under this Act.
19-71(2)
A higher education provider must not obstruct or hinder a *HESA investigator or a *TEQSA investigator who is performing functions or exercising powers under this Act.
Civil penalty: 60 penalty units.
History
S 19-71 inserted by No 83 of 2017, s 3 and Sch 3 item 15, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-72
Providers must keep records
19-72(1)
A higher education provider must keep records of a kind, in the manner and for the period specified in the Higher Education Provider Guidelines.
19-72(2)
A higher education provider contravenes this subsection if the provider:
(a)
is subject to a requirement under this section; and
(b)
does not comply with the requirement.
Civil penalty: 60 penalty units.
History
S 19-72 inserted by No 83 of 2017, s 3 and Sch 3 item 15, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-73
Providers must publish information
19-73(1)
A higher education provider must publish information of the kind, in the manner and within the period specified in the Higher Education Provider Guidelines.
19-73(2)
A higher education provider contravenes this subsection if the provider:
(a)
is subject to a requirement under this section; and
(b)
does not comply with the requirement.
Civil penalty: 60 penalty units.
History
S 19-73 inserted by No 83 of 2017, s 3 and Sch 3 item 15, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 19-75
19-75
Notice of events that affect provider's ability to comply with conditions of Commonwealth assistance
A higher education provider must by writing inform the Minister of any event affecting:
(a)
the provider; or
(b)
a *related body corporate of the provider;
that may significantly affect the provider's capacity to meet the conditions of grants under this Chapter or the *quality and accountability requirements.
Civil penalty: 60 penalty units.
History
S 19-75 amended by No 83 of 2017, s 3 and Sch 3 item 16, by inserting civil penalty at the end, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before,on or after 1 January 2021.
SECTION 19-77
19-77
Notice of events affecting accreditation
A higher education provider must by writing inform the Minister of any event affecting:
(a)
the provider; or
(b)
a *related body corporate of the provider; that relates to:
(c)
the provider's authority conferred by or under the *TEQSA Act to self-accredit one or more *courses of study; or
(d)
TEQSA's accreditation of a course of study that is an *accredited course in relation to the provider.
Civil penalty: 60 penalty units.
History
S 19-77 amended by No 83 of 2017, s 3 and Sch 3 item 16, by inserting civil penalty at the end, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
S 19-77 amended by No 74 of 2011, s 3 and Sch 2 item 8, by substituting para (c) and (d), effective 29 January 2012. Para (c) and (d) formerly read:
(c)
the provider's authority to accredit *courses of study leading to *higher education awards; or
(d)
the accreditation by a *government accreditation authority, of such courses offered by the provider.
S 19-77 inserted by No 72 of 2007, s 3 and Sch 1 item 13, effective 31 December 2007.
SECTION 19-78
Notice of events significantly affecting TEQSA registration
19-78(1)
A higher education provider must by writing inform the Minister of any event significantly affecting:
(a)
the provider; or
(b)
a *related body corporate of the provider;
that relates to the provider's registration as a *registered higher education provider.
Civil penalty: 60 penalty units.
History
S 19-78(1) amended by No 83 of 2017, s 3 and Sch 3 item 17, by inserting civil penalty at the end, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
19-78(2)
If a higher education provider informs the Minister of an event under section
19-77, the provider need not inform the Minister of the event under this section.
History
S 19-78 inserted by No 74 of 2011, s 3 and Sch 2 item 9, applicable in relation to an event happening before, on or after 29 January 2012.
SECTION 19-80
Compliance assurance
19-80(1)
The Minister may require a higher education provider to be audited as to compliance with any one or more of the following requirements:
(a)
the *financial viability requirements;
(b)
the *fairness requirements;
(c)
the *compliance requirements;
(d)
the *contribution and fee requirements.
History
S 19-80(1) amended by No 93 of 2020, s 3 and Sch 4 item 9, by omitting "(other than a *Table A provider)" after "higher education provider", effective 1 January 2021.
19-80(2)
The audit must be conducted:
(a)
by a body determined in writing by the Minister; and
(b)
at such time or times, and in such manner, as the Minister requires.
19-80(2A)
To avoid doubt, if the Minister makes a determination under subsection (2) in relation to *TEQSA, the determination is not a direction for the purposes of subsection 136(2) of the *TEQSA Act.
History
S 19-80(2A) inserted by No 74 of 2011, s 3 and Sch 2 item 10, effective 29 January 2012.
19-80(3)
The provider must:
(a)
fully co-operate with the auditing body in the course of its audit; and
(b)
pay to the auditing body any charges payable for such an audit.
19-80(3A)
A higher education provider contravenes this subsection if the provider:
(a)
is being audited under this section; and
(b)
does not co-operate with the auditing body in the course of its audit.
Civil penalty: 60 penalty units.
History
S 19-80(3A) inserted by No 83 of 2017, s 3 and Sch 3 item 18, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
19-80(4)
A determination made under paragraph (2)(a) is not a legislative instrument.
SECTION 19-82
Compliance notices
Grounds for giving a compliance notice
19-82(1)
The Minister may give a higher education provider a written notice (a
compliance notice
) in accordance with this section if the Minister is satisfied that the provider has not complied with, or is aware of information that suggests that the provider may not comply with, one or more of the following:
(a)
this Act or the regulations;
(b)
the Guidelines made under section
238-10 that apply to the provider;
(c)
a condition imposed on the provider's approval as a higher education provider.
Content of compliance notice
19-82(2)
The compliance notice must:
(a)
set out the name of the provider to which the notice is given; and
(b)
set out brief details of the non-compliance or possible non compliance; and
(c)
specify action that the provider must take, or refrain from taking, in order to address the non-compliance or possible non-compliance; and
(d)
specify a reasonable period within which the provider must take, or refrain from taking, the specified action; and
(e)
if the Minister considers it appropriate - specify a reasonable period within which the provider must provide the Minister with evidence that the provider has taken, or refrained from taking, the specified action; and
(f)
in any case - state that a failure to comply with the notice is a breach of a *quality and accountability requirement which may lead to the provider's approval as a higher education provider being suspended or revoked; and
(g)
in any case-set out any other matters specified in the Higher Education Provider Guidelines for the purposes of this paragraph.
Matters that Minister must consider in giving compliance notice
19-82(3)
In deciding whether to give the compliance notice, the Minister must consider all of the following matters:
(a)
whether the non-compliance or possible non compliance is of a minor or major nature;
(b)
the period for which the provider has been approved as a higher education provider;
(c)
the provider's history of compliance with:
(i)
this Act and the regulations; and
(ii)
the Guidelines made under section 238-10 that apply to the provider; and
(iii)
any conditions imposed on the provider's approval as a higher education provider;
(d)
the impact of the higher education provider's non-compliance or possible non-compliance, and of the proposed compliance notice, on:
(i)
the provider's students; and
(ii)
the provision of higher education generally;
(e)
the public interest;
(f)
any other matter specified in the Higher Education Provider Guidelines for the purposes of this paragraph.
Higher Education provider to comply with compliance notice
19-82(4)
A higher education provider must comply with a compliance notice given to the provider under this section.
Civil penalty: 60 penalty units.
History
S 19-82(4) substituted by No 83 of 2017, s 3 and Sch 3 item 19, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021. S 19-82(4) formerly read:
Higher Education provider to comply with compliance notice
19-82(4)
A higher education provider must comply with a compliance notice given to the provider under this section.
Note:
A failure to comply with a compliance notice is a breach of a quality and accountability requirement which may lead to the provider's approval as a higher education provider being suspended or revoked (see sections 22-15 and 22-30).
Variation and revocation of compliance notice
19-82(5)
The Minister may, by written notice given to the higher education provider, vary or revoke a compliance notice if, at the time of the variation or revocation, the Minister considers that taking such action is in the public interest.
Note:
A variation could, for example, specify different action to be taken by the provider or a different period for complying with the notice.
19-82(6)
In deciding whether to vary or revoke the compliance notice, the Minister must consider any submissions that are received from the higher education provider before the end of the period mentioned in paragraph (2)(d).
Compliance notice not required before suspending or revoking approval
19-82(7)
To avoid doubt, the Minister need not give a compliance notice under this section before suspending or revoking the provider's approval as a higher education provider in accordance with Division
22.
History
S 19-82 inserted by No 23 of 2013, s 3 and Sch 3 item 4, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider. S 19-82 also applies in relation to a compliance notice given on or after 29 March 2013, even if the act or omission alleged to give rise to the notice occurred before 29 March 2013.
Subdivision 19-F - What are the contribution and fee requirements?
SECTION 19-85
19-85
Basic requirement
A higher education provider must charge, in accordance with the requirements of this Act:
(a)
*student contribution amounts and *tuition fees for each unit of study in which it enrols students; and
(b)
an *accelerator program course fee for each *accelerator program course in which it enrols students.
History
S 19-85 substituted by No 36 of 2023, s 3 and Sch 1 item 16, effective 29 June 2023. S 19-85 formerly read:
SECTION 19-85 Basic requirement
19-85
A higher education provider must charge, in accordance with the requirements of this Act, *student contribution amounts and *tuition fees for each unit of study in which it enrols students.
SECTION 19-87
Determining student contribution amounts for all places in units
19-87(1)
This section applies to a unit of study:
(a)
that a higher education provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines; and
(b)
in relation to which the provider may advise a person that he or she is a *Commonwealth supported student.
History
S 19-87(1) amended by No 72 of 2007, s 3 and Sch 8 item 1, by substituting para (b), effective 28 May 2007. Para (b) formerly read:
(b)
that may form part of a *course of study in which the provider or, where the provider is a *Table A provider, another Table A provider may enrol students as *Commonwealth supported students.
19-87(2)
The provider must determine, for places in the unit, one or more *student contribution amounts that are to apply to students who may enrol in the unit during the period.
History
S 19-87(2) and (2A) substituted for s 19-87(2) by No 121 of 2006, s 3 and Sch 3 item 1, effective 4 November 2006. S 19-87(2) formerly read:
19-87(2)
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 period.
19-87(2A)
In determining more than one *student contribution amount under subsection (2), the provider may have regard to any matters the provider considers appropriate, other than matters specified in the Higher Education Provider Guidelines as matters to which a provider must not have regard.
History
S 19-87(2) and (2A) substituted for s 19-87(2) by No 121 of 2006, s 3 and Sch 3 item 1, effective 4 November 2006.
19-87(3)
The provider must not vary a *student contribution amount unless the provider:
(a)
does so:
(i)
before the date ascertained in accordance with the Higher Education Provider Guidelines; and
(ii)
in circumstances specified in the Higher Education Provider Guidelines; or
(b)
does so with the written approval of the Minister.
SECTION 19-88
19-88
Determining student contribution amounts for places in units for student cohorts
(Repealed by No 121 of 2006)
History
S 19-88 repealed by No 121 of 2006, s 3 and Sch 3 item 2, effective 4 November 2006. No 121 of 2006, s 3 and Sch 3 item 13, contains the following savings provision:
13 Saving provision for determinations of student contribution amounts for student cohorts
(1)
This item applies to a determination (the
saved determination
) made by a higher education provider under section 19-88 of the Higher Education Support Act 2003before that section was repealed.
(2)
Section 19-97 of the Higher Education Support Act 2003 continues to apply in relation to the saved determination despite the repeal of that section.
(3)
The definition, in subsection 93-5(1) of the Higher Education Support Act 2003, of a person's
student contribution amount
for a unit is modified if:
(a)
the person is in the student cohort to which the saved determination relates; and
(b)
the saved determination has not been revoked under subitem (4); and
(c)
the unit forms part of a course of study with the provider who made the saved determination; and
(d)
the person is undertaking the unit with the provider; and
(e)
the person satisfies any conditions that apply to the cohort under the saved determination;
so that the person's
student contribution amount for a place
in the unit is the student contribution amount for the unit specified in the saved determination.
(4)
The provider may revoke the saved determination if the provider:
(a)
does so:
(i)
before the date set out in the Higher Education Provider Guidelines; and
(ii)
in the circumstances (if any) specified in the Higher Education Provider Guidelines; or
(b)
does so with the written approval of the Minister.
(5)
From the time the provider revokes the saved determination, a determination in effect under section 19-87 starts to apply, according to its terms, to the students who were in the cohort.
(6)
Before revoking the saved determination, the provider must notify the students who are in the cohort of the provider's intention to revoke the determination.
(7)
The Higher Education Provider Guidelines made under the Higher Education Support Act 2003 may provide for matters:
(a)
required or permitted by this item to be provided; or
(b)
necessary or convenient to be provided in order to carry out or give effect to this item.
(8)
Expressions used in this item that are defined in the Higher Education Support Act 2003 have the same meaning in this item as they have in that Act.
S 19-88 formerly read:
SECTION 19-88 Determining student contribution amounts for places in units for student cohorts
19-88(1)
This section applies to a unit of study:
(a)
that a higher education provider provides or proposes to provide as part of a *student cohort's *course of study; and
(b)
in which the provider may enrol students as *Commonwealth supported students.
19-88(2)
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.
19-88(3)
The provider may only determine one amount for the unit to apply to students in that *student cohort.
19-88(4)
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.
19-88(5)
However, the provider may only determine conditions under subsection (4) of the kind or kinds specified for the purposes of that subsection in the Higher Education Provider Guidelines.
SECTION 19-90
Determining tuition fees for all students
19-90(1)
This section applies to a unit of study that a higher education provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines.
19-90(2)
The provider must determine, for the unit, one or more *fees that are to apply to students who may enrol in the unit during the period.
History
S 19-90(2) substituted by No 121 of 2006, s 3 and Sch 3 item 3, effective 4 November 2006. 19-90(2) formerly read:
19-90(2)
The provider must determine a *fee for the unit that is to apply to all students who may enrol in the unit during the period.
19-90(3)
In determining more than one *fee under subsection (2), the provider may have regard to any matters the provider considers appropriate, other than matters specified in the Higher Education Provider Guidelines as matters to which a provider must not have regard.
History
S 19-90(3) substituted by No 121 of 2006, s 3 and Sch 3 item 3, effective 4 November 2006. No 121 of 2006, s 3 and Sch 3 item 12 contains the following saving provision:
Saving provision relating to substitution of subsection 19-90(3) (determination of different tuition fees for different courses)
12
If, immediately before subsection 19-90(3) of the Higher Education Support Act 2003 was repealed and substituted, a determination made in accordance with that subsection had effect, the determination is taken to continue in effect as if it had been made in accordance with subsection 19-90(3) of that Act as in force 4 November 2006.
S 19-90(3) formerly read:
19-90(3)
However, if the unit can form part of more than one *course of study, the provider may determine under subsection (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.
19-90(4)
The provider must not vary a *fee unless the provider:
(a)
does so:
(i)
before the date ascertained in accordance with the Higher Education Provider Guidelines; and
(ii)
in circumstances specified in the Higher Education Provider Guidelines; or
(b)
does so with the written approval of the Minister.
SECTION 19-91
19-91
Determining tuition fees for students in student cohorts
(Repealed by No 121 of 2006)
History
S 19-91 repealed by No 121 of 2006, s 3 and Sch 3 item 4, effective 4 November 2006. No 121 of 2006, s 3 and Sch 3 item 14 contains the following savings provision:
14 Saving provision for determinations of tuition fees for student cohorts
(1)
This item applies to a determination (the
saved determination
) made by a higher education provider under section 19-91 of the Higher Education Support Act 2003 before that section was repealed.
(2)
Section 19-97 of the Higher Education Support Act 2003 continues to apply in relation tothe saved determination despite the repeal of that section.
(3)
The definition, in section 19-105 of the Higher Education Support Act 2003, of a person's
tuition fee
for a unit is modified, if:
(a)
the person is in the student cohort to which the saved determination relates; and
(b)
the saved determination has not been revoked under subitem (4); and
(c)
the unit forms part of a course of study with the provider who made the saved determination; and
(d)
the person is undertaking the unit with the provider; and
(e)
the person satisfies any conditions that apply to the cohort under the saved determination;
so that the person's
tuition fee
for the unit is the fee for the unit specified in the saved determination.
(4)
The provider may revoke the saved determination if the provider:
(a)
does so:
(i)
before the date set out in the Higher Education Provider Guidelines; and
(ii)
in the circumstances (if any) specified in the Higher Education Provider Guidelines; or
(b)
does so with the written approval of the Minister.
(5)
From the time the provider revokes the saved determination, a determination in effect under section 19-90 starts to apply, according to its terms, to the students who were in the cohort.
(6)
Before revoking the saved determination, the provider must notify the students who are in the cohort of the provider's intention to revoke the determination.
(7)
The Higher Education Provider Guidelines made under the Higher Education Support Act 2003 may provide for matters:
(a)
required or permitted by this item to be provided; or
(b)
necessary or convenient to be provided in order to carry out or give effect to this item.
(8)
Expressions used in this item that are defined in the Higher Education Support Act 2003 have the same meaning in this item as they have in that Act.
S 19-91 formerly read:
SECTION 19-91 Determining tuition fees for students in student cohorts
19-91(1)
This section 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.
19-91(2)
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.
19-91(3)
The provider may only determine one *fee for the unit to apply to students in that *student cohort.
19-91(4)
The provider may also determine conditions for that *student cohort that are to apply in relation to the *fee for the unit.
19-91(5)
However, the provider may only determine conditions under subsection (4) of the kind or kinds specified for the purposes of that subsection in the Higher Education Provider Guidelines.
SECTION 19-92
Determining accelerator program course fees for all students
19-92(1)
This section applies to an *accelerator program course that a higher education provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines.
19-92(2)
The provider must determine one *accelerator program course fee that is to apply to students who may enrol in the course during the period.
19-92(3)
A
person's accelerator program course fee
for an *accelerator program course is the fee determined for the course under subsection
(2).
History
S 19-92 inserted by No 36 of 2023, s 3 and Sch 1 item 17, effective 29 June 2023.
SECTION 19-95
Schedules of student contribution amounts for places and tuition fees
19-95(1)
A higher education provider must give the Minister a schedule of the *student contribution amounts for places, and *tuition fees, determined under sections
19-87 and
19-90 for all the units of study it provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines. It must give the schedule:
(a)
in a form approved by the Minister; and
(b)
in accordance with the requirements that the Minister determines in writing.
19-95(2)
The provider must:
(a)
ensure that the schedule provides sufficient information to enable a person to work out, for each unit of study the provider provides or is to provide:
(i)
the person's *student contribution amount; or
(ii)
if the provider determined more than one student contribution amount for places in a unit under section 19-87 - which of those student contribution amounts applies to the person; and
(aa)
ensure that the schedule provides sufficient information to enable a person to work out, for each unit of study the provider provides or is to provide:
(i)
the person's *tuition fee; and
(ii)
if the provider determined more than one tuition fee for a unit under section 19-90 - which of those tuition fees applies to the person; and
(b)
publish the schedule for a particular period by the date ascertained in accordance with the Higher Education Provider Guidelines; and
(c)
ensure that the schedule is available to all students enrolled, and persons seeking to enrol, with the provider on request and without charge.
Civil penalty: 60 penalty units.
History
S 19-95(2) amended by No 83 of 2017, s 3 and Sch 3 item 20, by inserting civil penalty at the end, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
S 19-95(2) amended by No 121 of 2006, s 3 and Sch 3 item 5, by substituting paras (a) and (aa) for para (a), effective 4 November 2006. Para (a) formerly read:
(a)
ensure that the schedule provides sufficient information to enable a person to work out his or her *student contribution amount and tuition fee determined under sections 19-87 and 19-90 for each unit of study that the provider provides or is to provide; and
Replacement schedules
19-95(3)
If:
(a)
the provider has given the Minister a schedule (the
previous schedule
) under:
(i)
subsection (1); or
(ii)
this subsection; and
(b)
the provider:
(i)
varies a *student contribution amount in the previous schedule; or
(ii)
varies a *tuition fee in the previous schedule;
the provider must:
(c)
by written notice given to the Minister:
(i)
withdraw the previous schedule; and
(ii)
inform the Minister of the variation; and
(d)
give the Minister a replacement schedule incorporating the variation.
Note 1:
The provider must comply with subsection 19-87(3) when varying a student contribution amount.
Note 2:
The provider must comply with subsection 19-90(4) when varying a tuition fee.
Civil penalty: 60 penalty units.
History
S 19-95(3) amended by No 83 of 2017, s 3 and Sch 3 item 21, by inserting civil penalty at the end, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
19-95(4)
Subsections (1) and (2) apply to the replacement schedule in a corresponding way to the way in which they apply to the previous schedule.
SECTION 19-97
Schedules of accelerator program course fees
19-97(1)
This section applies if a higher education provider is required by section
19-92 to determine an *accelerator program course fee for an *accelerator program course the provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines.
19-97(2)
The provider must give the Minister a schedule of the *accelerator program course fees determined under section
19-92 for all the *accelerator program courses it provides or proposes to provide during the period. It must give the schedule:
(a)
in a form approved in writing by the Minister (if any); and
(b)
in accordance with the requirements that the Minister determines in writing (if any).
19-97(3)
The provider must:
(a)
ensure that the schedule provides sufficient information to enable a person to work out, foreach *accelerator program course the provider provides or is to provide during the period, the person's *accelerator program course fee; and
(b)
publish the schedule for a particular period by the date ascertained in accordance with the Higher Education Provider Guidelines; and
(c)
ensure that the schedule is available to all students enrolled, and persons seeking to enrol, with the provider on request and without charge.
Civil penalty: 60 penalty units.
History
S 19-97 inserted by No 36 of 2023, s 3 and Sch 1 item 18, effective 29 June 2023.
S 19-97 repealed by No 121 of 2006, s 3 and Sch 3 item 6, effective 4 November 2006. S 19-97 formerly read:
SECTION 19-97 Information on student contribution amounts for places and tuition fees for student cohorts
19-97(1)
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:
(a)
sufficient information to enable a person in a student cohort to work out his or 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
(b)
any conditions that are to apply in relation to the amount or fee for each unit of study for each student cohort.
19-97(2)
The information mentioned in subsection (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.
SECTION 19-100
19-100
Limits on fees for courses of study
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 with the provider by
the person as part of the course.
SECTION 19-101
19-101
Meaning of
student cohort
(Repealed by No 121 of 2006)
History
S 19-101 repealed by No 121 of 2006, s 3 and Sch 3 item 6, effective 4 November 2006. S 19-101 formerly read:
SECTION 19-101 Meaning of
student cohort
19-101
A
student cohort
, in relation to a particular *course of study of which a unit of study forms a part, is the group of all of the students who commence the course in a particular year with a particular higher education provider.
SECTION 19-102
Meaning of
fee
19-102(1)
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.
19-102(2)
A
fee
may also include any fee payable to the provider in respect of the granting of a *higher education award.
19-102(3)
A
fee
does not include a fee that is:
(a)
payable in respect of an organisation of students, or of students and other persons; or
(b)
payable in respect of the provision to students of amenities or services that are not of an academic nature; or
(c)
payable in respect of residential accommodation; or
(d)
imposed in accordance with the Higher Education Provider Guidelines for the imposition of fees in respect of *overseas students; or
(e)
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
(f)
determined, in accordance with the Higher Education Provider Guidelines, to be a fee of a kind that is incidental to studies that may be undertaken with a higher education provider; or
(g)
a *student contribution amount payable in respect of a student.
19-102(4)
The definition of
fee
in this section does not apply for the purposes of section
104-50.
History
S 19-102(4) amended by No 74 of 2011, s 3 and Sch 2 item 11, by substituting "section 104-50" for "sections 104-50 and 225-25", effective 29 January 2012.
SECTION 19-105
19-105
Meaning of
tuition fee
A person's
tuition fee
for a unit of study is:
(a)
if only one fee has been determined for the unit under subsection
19-90(2) - that fee; or
(b)
if more than one fee has been determined for the unit under that subsection - the fee determined under that subsection that applies to the person.
History
S 19-105 substituted by No 121 of 2006, s 3 and Sch 3 item 7, effective 4 November 2006. S 19-105 formerly read:
SECTION 19-105 Meaning of
tuition fee
19-105
A person's
tuition fee
for a unit of study is:
(a)
if all of the following apply:
(i)
the unit forms part of a *course of study with a higher education provider;
(ia)
the person is undertaking the unit with the provider;
(ii)
the person commenced that *course of study in a particular *student cohort;
(iii)
the provider has determined, in accordance with section 19-91, a *fee for the unit that applies to students in that cohort;
(iv)
the person satisfies any conditions that apply to the cohort under that section in relation to the fee for the unit;
the fee determined under that section for the cohort; or
(b)
if paragraph (a) does not apply and a different fee for the unit has been determined for each course of study in accordance with subsection 19-90(3) - the fee determined for the unit for the person's course of study; or
(c)
in all other cases - the fee determined under subsection 19-90(2).
Subdivision 19-G - The compact and academic freedom requirements
History
Subdiv 19-G inserted by No 104 of 2011, s 3 and Sch 3 item 3, applicable in relation to the year commencing on 1 January 2012 or a later year. For transitional provisions see note under s 19-110.
SECTION 19-110
Table A providers and Table B providers must enter into mission based compacts
19-110(1)
A higher education provider that is a *Table A provider or a *Table B provider must, in respect of each year for which a grant is paid to the provider under this Act, enter into a mission based compact with the Commonwealth for a period that includes that year.
19-110(2)
The Minister may, on behalf of the Commonwealth, enter into a mission based compact with a *Table A provider or a *Table B provider.
19-110(3)
The mission based compact must include:
(a)
a statement of the provider's mission; and
(b)
a statement of the provider's strategies for teaching and learning; and
(c)
a statement of the provider's strategies for:
(i)
undertaking research; and
(ii)
research training; and
(iii)
innovation; and
(d)
a statement of the provider's strategies for engaging with industry; and
(e)
a statement of the provider's strategies for improving equality of opportunity in higher education.
Note:
A mission based compact may include other matters.
History
S 19-110(3) amended by No 93 of 2020, s 3 and Sch 3 item 1, by inserting para (d) and (e), effective 28 October 2020 and applicable in relation to a mission based compact in respect of 2021 and later calendar years.
19-110(4)
The *Secretary must cause a copy of each mission based compact to be published on the Department's website within 28 days after the making of the compact.
History
S 19-110 inserted by No 104 of 2011, s 3 and Sch 3 item 3, applicable in relation to the year commencing on 1 January 2012 or a later year. No 104 of 2011, s 3 and Sch 3 item 10 contains the following transitional provision:
10 Transitional - mission based compacts
(1)
This item applies if:
(a)
the Minister entered into a mission based compact with a Table A provider or a Table B provider before commencement; and
(b)
the compact satisfies the requirements of subsection 19-110(3) of the new Act; and
(c)
the compact is still in force immediately before commencement.
19-110(2)
The compact is taken to have been entered into under section 19-110 of the new Act.
19-110(3)
If it has not previously been published on the Department's website, the Secretary must cause a copy of the compact to be published on the Department's website within 28 days after commencement.
SECTION 19-115
19-115
Provider to have policy upholding freedom of speech and academic freedom
A higher education provider that is a *Table A provider or a *Table B provider must have a policy that upholds freedom of speech and academic freedom.
History
S 19-115 amended by No 22 of 2021, s 3 and Sch 1 item 3, by substituting "freedom of speech and academic freedom" for "free intellectual inquiry in relation to learning, teaching and research", effective 23 March 2021.
S 19-115 inserted by No 104 of 2011, s 3 and Sch 3 item 3, applicable in relation to the year commencing on 1 January 2012 or a later year. For transitional provisions see note under s 19-110.
Division 22 - When does a body cease to be a higher education provider?
Subdivision 22-A - General
SECTION 22-1
Cessation of approval as a provider
22-1(1)
A body ceases to be approved as a higher education provider:
(a)
if a decision to revoke the approval is in effect under Subdivision
22-AA,
22-B or
22-D; or
(b)
while the approval is suspended under section
22-30; or
(c)
if the notice of the provider's approval ceases to have effect under Part 2 of Chapter
3 (parliamentary scrutiny of legislative instruments) of the
Legislation Act 2003.
History
S 22-1(1) amended by No 126 of 2015, s 3 and Sch 1 item 262, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003" in para (c), effective 5 March 2016.
S 22-1(1) amended by No 23 of 2013, s 3 and Sch 1 item 1, by inserting "22-AA," in para (a), applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013.
S 22-1(1) amended by No 160 of 2012, s 3 and Sch 2 item 1, by substituting para (a), applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012. Para (a) formerly read:
(a)
if the approval is revoked under Subdivision 22-B or 22-D; or
S 22-1(1) renumbered from s 22-1 by No 74 of 2011, s 3 and Sch 2 item 12, by inserting "(1)" before "A body", effective 29 January 2012.
S 22-1(1) (formerly s 22-1) amended by No 39 of 2009, s 3 and Sch 2 item 3, by inserting para (c) at the end, effective 24 June 2009. For application and transitional provisions, see note under s 16-5(3).
22-1(2)
If a body ceases to be approved as a higher education provider, the Minister must ensure that *TEQSA is notified, in writing, of the cessation.
History
S 22-1(2) inserted by No 74 of 2011, s 3 and Sch 2 item 13, effective 29 January 2012.
Subdivision 22-AA - Revocation of approval if registration ceases or winding up order made
History
Subdiv 22-AA inserted by No 23 of 2013, s 3 and Sch 1 item 2, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013.
SECTION 22-2
Automatic revocation of approval if registration ceases
22-2(1)
The Minister must revoke a body's approval as a higher education provider if:
(a)
the body is no longer a *registered higher education provider; and
(b)
in a case where *TEQSA has made either of the following decisions under the *TEQSA Act, the decision has not been set aside or quashed, and is no longer *subject to review:
(i)
a decision under section 36 of that Act to refuse an application to renew the body's registration under Part 3 of that Act;
(ii)
a decision under section 101 of that Act to cancel the body's registration under Part 3 of that Act.
22-2(2)
The Minister must notify the body in writing of the revocation. The notice must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.
History
S 22-2(2) amended by No 126 of 2015, s 3 and Sch 1 item 263, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
22-2(3)
A notice of revocation under subsection (2) is a legislative instrument, but section
42 (disallowance) of the
Legislation Act 2003 does not apply to the notice.
History
S 22-2(3) amended by No 126 of 2015, s 3 and Sch 1 item 264, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003", effective 5 March 2016.
22-2(4)
A decision of the Minister to revoke a body's approval as a higher education provider takes effect on the day that the notice of revocation under subsection (2) is registered in the *Federal Register of Legislation.
History
S 22-2(4) amended by No 126 of 2015, s 3 and Sch 1 item 265, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
History
S 22-2 inserted by No 23 of 2013, s 3 and Sch 1 item 2, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a higher education provider that ceases to be a registered higher education provider on or after 29 March 2013.
SECTION 22-3
Automatic revocation of approval if winding up order made
22-3(1)
The Minister must revoke a body's approval as a higher education provider if:
(a)
an order is made by a court, or by the Australian Securities and Investments Commission under Part
5.4C of the
Corporations Act 2001, for the winding up of the body; and
(b)
the order has not been set aside or quashed, and is no longer *subject to review.
22-3(2)
The Minister must notify the body in writing of the revocation. The notice must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.
History
S 22-3(2) amended by No 126 of 2015, s 3 and Sch 1 item 265, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
22-3(3)
A notice of revocation under subsection (2) is a legislative instrument, but section
42 (disallowance) of the
Legislation Act 2003 does not apply to the notice.
History
S 22-3(3) amended by No 126 of 2015, s 3 and Sch 1 item 266, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003", effective 5 March 2016.
22-3(4)
A decision of the Minister to revoke a body's approval as a higher education provider takes effect on the day that the notice of revocation under subsection (2) is registered in the *Federal Register of Legislation.
History
S 22-3(4) amended by No 126 of 2015, s 3 and Sch 1 item 267, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
History
S 22-3 inserted by No 23 of 2013, s 3 and Sch 1 item 2, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a higher education provider if an order is made, on or after 29 March 2013 for the winding up of the provider.
Subdivision 22-B - Revocation for cause
SECTION 22-5
22-5
Revocation of approval if application for approval as a provider is false or misleading
The Minister may revoke a body's approval as
a higher education provider if the Minister:
(a)
is
satisfied that the body's application under section
16-40 for
approval as a higher education provider contained material that was false
or misleading; and
(b)
complies
with the requirements of section
22-20.
SECTION 22-7
Revocation of approval if providing education and/or conducting research ceases to be the body's principal purpose
22-7(1)
The Minister may revoke a body's approval as a higher education provider if:
(a)
the body's principal purpose is no longer, or is no longer taken to be, either or both of the following:
(i)
to provide education;
(ii)
to conduct research; and
(b)
(Repealed by No 72 of 2011)
(c)
the Minister complies with the requirements of section
22-20.
History
S 22-7(1) amended by No 72 of 2011, s 3 and Sch 1 items 6 and 7, by inserting "(1)" before "The Minister" and substituting para (a) for paras (a) and (b), applicable in relation to an approval given before, on or after 30 June 2011. Paras (a) and (b) formerly read:
(a)
at the last time the body became a higher education provider, the body's principal purpose was either or both of the following:
(i)
to provide education;
(ii)
to conduct research; and
(b)
since that time, the body's circumstances have changed so that it no longer satisfies paragraph 16-25(aa); and
S 22-7 amended by No 72 of 2007, s 3 and Sch 1 item 14, by substituting "16-25(aa)" for "16-25(1)(aa)" in para (b), effective 31 December 2007.
22-7(2)
The Minister may also revoke a body's approval as a higher education provider if:
(a)
the Minister is satisfied that any of the body's purposes conflict with the body's principal purpose of providing education and/or conducting research; and
(b)
the Minister complies with the requirements of section
22-20.
History
S 22-7(2) inserted by No 72 of 2011, s 3 and Sch 1 item 8, applicable in relation to an approval given before, on or after 30 June 2011.
SECTION 22-10
Revocation of approval if status or accreditation changes
Bodies that cease to be Australian universities
22-10(1)
The Minister may revoke a body's approval as a higher education provider if:
(a)
the body was an *Australian university at the last time the body became a higher education provider; and
(b)
since that time, the body has ceased to be an Australian university; and
(c)
the Minister complies with the requirements of section
22-20.
History
S 22-10(1) amended by No 72 of 2007, s 3 and Sch 1 items 15 and 16, by substituting "an *Australian university" for "a *university" in para (a) and substituting "an Australian university" for "a university" in para (b), effective 31 December 2007.
Bodies that cease to be self-accrediting entities
22-10(2)
The Minister may revoke a body's approval as a higher education provider if:
(a)
the body was a *self-accrediting entity at the last time the body became a higher education provider; and
(b)
since that time, the body has ceased to be a self-accrediting entity; and
(c)
the Minister complies with the requirements of section
22-20.
History
S 22-10(2) amended by No 72 of 2007, s 3 and Sch 1 items 17 and 18, by substituting "entity" for "provider" (first occurring) in para (a) and substituting "entity" for "provider" in para (b), effective 31 December 2007.
Self-accrediting entities that cease to have authority to accredit courses
22-10(2A)
The Minister may revoke a body's approval as a higher education provider if:
(a)
the body was a *self-accrediting entity at the last time the body became a higher education provider; and
(b)
the body is no longer authorised by or under the *TEQSA Act to self-accredit a *course of study that the body was authorised to self-accredit at that time; and
(c)
the Minister complies with the requirements of section
22-20.
History
S 22-10(2A) amended by No 74 of 2011, s 3 and Sch 2 item 14, by substituting para (b), effective 29 January 2012. Para (b) formerly read:
(b)
the body is no longer authorised by a *government accreditation authority to accredit a *course of study that the body was authorised to accredit at that time; and
S 22-10(2A) inserted by No 72 of 2007, s 3 and Sch 19, effective 31 December 2007.
Bodies that were non self-accrediting providers
22-10(3)
The Minister may revoke a body's approval as a higher education provider if:
(a)
the body was a *non self-accrediting entity at the last time the body became a higher education provider; and
(b)
since that time, the body has ceased to be a non self-accrediting entity; and
(c)
the Minister complies with the requirements of section
22-20.
History
S 22-10(3) amended by No 72 of 2007, s 3 and Sch 1 items 20 and 21, by substituting "entity" for "provider (first occurring) in para (a) and substituting "entity" for "provider" in para (b), effective 31 December 2007.
Bodies offering courses that cease to be accredited courses
22-10(4)
The Minister may revoke a body's approval as a higher education provider if:
(a)
the body was a *self-accrediting entity or a *non self-accrediting entity at the last time the body became a higher education provider; and
(b)
a *course of study offered by the body that was an *accredited course ceases to be an accredited course; and
(c)
the Minister complies with the requirements of section
22-20
History
S 22-10(4) inserted by No 72 of 2007, s 3 and Sch 1 item 22, effective 31 December 2007.
Bodies that no longer meet certain approval criteria
22-10(5)
The Minister may revoke a body's approval as a higher education provider if:
(a)
the body no longer meets a requirement set out in:
(i)
paragraph 16-25(1)(a); or
(ii)
paragraph 16-25(1)(da); and
(b)
the Minister complies with the requirements of section
22-20.
History
S 22-10(5) amended by No 72 of 2011, s 3 and Sch 1 items 9 and 10, by substituting "paragraph 16-25(1)(a)" for "paragraph 16-25(a)" in para (a)(i) and "paragraph 16-25(1)(da)" for "paragraph 16-25(da)" in para (a)(ii), effective 30 June 2011.
S 22-10(5) inserted by No 89 of 2008, s 3 and Sch 1 item 5, effective 20 September 2008.
22-10(6)
(Repealed by No 23 of 2013)
History
S 22-10(6) repealed by No 23 of 2013, s 3 and Sch 1 item 3, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013. S 22-10(6) continues to apply in relation to a higher education provider that had ceased to be a registered higher education provider before 29 March 2013. S 22-10(6) formerly read:
Bodies that are no longer registered under the TEQSA Act
22-10(6)
The Minister may revoke a body's approval as a higher education provider if:
(a)
the body is no longer a *registered higher education provider; and
(b)
the Minister complies with the requirements of section 22-20.
S 22-10(6) inserted by No 74 of 2011, s 3 and Sch 2 item 15, effective 29 January 2012.
SECTION 22-15
Revocation of approval as a provider for a breach of conditions or the quality and accountability requirements
22-15(1)
The Minister may revoke a body's approval as a higher education provider if the Minister:
(a)
is satisfied that the body has:
(i)
breached a condition of a grant made to the body under Part 2-2, 2-2A, 2-3 or 2-4; or
(ii)
breached a *quality and accountability requirement; or
(iii)
breached a condition imposed on the body's approval; and
(b)
is satisfied that it is appropriate to take that action (see subsection (2)); and
(c)
complies with the requirements of section
22-20.
Note:
Section 16-60 allows conditions to be imposed on the body's approval.
History
S 22-15(1) amended by No 74 of 2016, s 3 and Sch 1 item 6, by inserting "2-2A," in para (a)(i), effective 1 January 2017.
S 22-15(1) amended by No 72 of 2011, s 3 and Sch 1 items 11 to 14, by omitting "either" from para (a), substituting "; or" for "; and" in para (a)(ii), inserting para (a)(iii) and inserting the note at the end, applicable in relation to a body approved as a higher education provider before, on or after 30 June 2011.
22-15(2)
Without limiting the matters that the Minister may consider in deciding whether it is appropriate under this section to revoke a body's approval as a higher education provider, the Minister may consider any or all of the following matters:
(a)
whether the breach in question is of a minor or major nature;
(b)
whether the breach has occurred before and, if so, how often;
(c)
the impact that the breach may have on the body's students;
(d)
the impact of the breach on the higher education provided by the body;
(e)
the impact of the breach on Australia's reputation as a provider of high quality higher education;
(f)
any other matter set out in the Higher Education Provider Guidelines.
SECTION 22-17
Revocation of approval as a provider if provider etc. not a fit and proper person
22-17(1)
The Minister may revoke a body's approval as a higher education provider if the Minister:
(a)
is satisfied that:
(i)
the body; or
(ii)
at least one person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body's affairs;
is not a fit and proper person; and
(b)
complies with the requirements of section
22-20.
22-17(2)
The Minister must, in deciding whether he or she is satisfied that a person is not a fit andproper person, take into account the matters specified in an instrument under subsection
16-25(4). The Minister may take into account any other matters he or she considers relevant.
History
S 22-17 inserted by No 72 of 2011, s 3 and Sch 1 item 15, applicable in relation to an approval given before, on or after 30 June 2011.
Subdivision 22-C - Process for decisions on revocation under Subdivision 22-B
SECTION 22-20
Process for revoking approval
22-20(1)
Before revoking a body's approval as a higher education provider under Subdivision
22-B, the Minister must give the body notice in writing:
(a)
stating that the Minister is considering revoking the body's approval; and
(b)
stating the reasons why the Minister is considering revoking the body's approval; and
(c)
inviting the body to make written submissions to the Minister within 28 days concerning why the approval should not be revoked.
22-20(2)
In deciding whether or not to revoke a body's approval under Subdivision
22-B, the Minister must consider any submissions received from the body within the 28 day period.
22-20(3)
The Minister must notify the body in writing of his or her decision whether to revoke the body's approval under Subdivision
22-B. The notice:
(a)
must be in writing; and
(b)
must be given within the period of 28 days following the period in which submissions may have been given to the Minister under subsection (1); and
(c)
if the Minister decides to revoke the body's approval - must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.
History
S 22-20(3) amended by No 126 of 2015, s 3 and Sch 1 item 268, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments" in para (c), effective 5 March 2016.
S 22-20(3) amended by No 160 of 2012, s 3 and Sch 2 item 2, by substituting para (c), applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012. Para (c) formerly read:
(c)
if the Minister decides to revoke the body's approval - must specify the day that the revocation takes effect.
22-20(3A)
A notice of revocation under subsection (3) is a legislative instrument.
History
S 22-20(3A) inserted by No 160 of 2012, s 3 and Sch 2 item 3, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012.
22-20(4)
If no notice is given within the period provided for in subsection (3), the Minister is taken to have decided not to revoke the approval.
22-20(5)
A decision of the Minister to revoke a body's approval as a higher education provider takes effect on the day that the notice of revocation under subsection (3) is registered in the *Federal Register of Legislation.
History
S 22-20(5) amended by No 126 of 2015, s 3 and Sch 1 item 269, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
S 22-20(5) substituted by No 160 of 2012, s 3 and Sch 2 item 4, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012. S 22-20(5) formerly read:
22-20(5)
If the Minister decides to revoke the body's approval:
(a)
the revocation takes effect on the day specified in the notice under subsection (3); and
(b)
a copy of the notice must be published in the Gazette.
22-20(6)
If the notice of revocation under subsection (3) ceases to have effect under Part
2 of Chapter
3 (parliamentary scrutiny of legislative instruments) of the
Legislation Act 2003, then the decision to revoke the approval ceases to have effect at the same time.
History
S 22-20(6) amended by No 126 of 2015, s 3 and Sch 1 item 270, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003", effective 5 March 2016.
S 22-20(6) inserted by No 160 of 2012, s 3 and Sch 2 item 4, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012.
SECTION 22-22
22-22
Minister may seek information from TEQSA
(Repealed by No 23 of 2013)
History
S 22-22 repealed by No 23 of 2013, s 3 and Sch 5 item 1, effective 29 March 2013. S 22-22 formerly read:
SECTION 22-22 Minister may seek information from TEQSA
22-22
For the purpose of determining whether:
(a)
to revoke a body's approval as a higher education provider; or
(b)
to suspend a body's approval as a higher education provider;
the Minister may seek information from *TEQSA.
S 22-22 substituted by No 160 of 2012, s 3 and Sch 2 item 22, applicable in relation to decisions to revoke or suspend a body's approval as a higher education provider made before, on or after 29 November 2012. S 22-22 formerly read:
SECTION 22-22 Minister may seek information from TEQSA
22-22
For the purposes of determining whether to revoke a body's approval as a higher education provider, the Minister may seek information from *TEQSA.
S 22-22 inserted by No 74 of 2011, s 3 and Sch 2 item 16, effective 29 January 2012.
SECTION 22-23
22-23
Minister may seek information from relevant VET regulator
(Repealed by No 23 of 2013)
History
S 22-23 repealed by No 23 of 2013, s 3 and Sch 5 item 1, effective 29 March 2013. S 22-23 formerly read:
SECTION 22-23 Minister may seek information from relevant VET regulator
22-23
For the purpose of determining whether:
(a)
to revoke a body's approval as a higher education provider; or
(b)
to suspend a body's approval as a higher education provider;
the Minister may seek information from the relevant *VET regulator.
S 22-23 inserted by No 160 of 2012, s 3 and Sch 2 item 22, applicable in relation to decisions to revoke or suspend a body's approval as a higher education provider made before, on or after 29 November 2012.
SECTION 22-25
Determination retaining approval as a provider in respect of existing students
22-25(1)
The Minister may determine, in writing, that a revocation of a body's approval as a higher education provider under Subdivision
22-B is of no effect for the purposes of:
(a)
grants to the body under this Chapter; and
(b)
assistance payable to the body's students under Chapter
3;
to the extent that the grants or assistance relate to students of the body who have not completed the *courses of study in which they were enrolled with the body on the day referred to in subsection 22-20(5).
History
S 22-25(1) amended by No 160 of 2012, s 3 and Sch 2 item 5, by substituting "referred to in subsection 22-20(5)" for "specified for the purposes of paragraph 22-20(5)(a)", applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012.
22-25(2)
The determination may be included in the notice of revocation under subsection
22-20(3).
22-25(3)
The body is taken, for the purposes of this Act, to continue to be a higher education provider, but only to the extent referred to in subsection (1).
22-25(4)
Subsection (3) does not prevent the Minister subsequently revoking the body's approval as a higher education provider under this Division.
SECTION 22-30
Suspension of approval as a provider
22-30(1)
The Minister may, by legislative instrument, determine that, with effect from a specified day, a body's approval as a higher education provider is suspended pending the making of a decision under Subdivision
22-B as to whether to revoke the body's approval as a provider.
History
S 22-30(1) amended by No 72 of 2007, s 3 and Sch 10 item 1, by substituting "may, by legislative instrument, determine" for "may determine in writing", effective 28 May 2007.
22-30(2)
A copy of the determination must be given to the body concerned.
22-30(2A)
Before the Minister makes a determination under subsection (1) in respect of a body, the Minister must give the body notice in writing:
(a)
stating that the Minister is considering suspending the body's approval; and
(b)
stating the reasons why the Minister is considering suspending the body's approval; and
(c)
inviting the body to respond to the Minister, in writing, within 14 days of the date of the notice.
History
S 22-30(2A) inserted by No 72 of 2011, s 3 and Sch 1 item 16, applicable in relation to a notice given under subsection 22-30(2A) of the Higher Education Support Act 2003 (as inserted) after 30 June 2011.
22-30(2B)
In deciding whether or not to make a determination under subsection (1), the Minister must consider any response received from the body within the 14 day period.
History
S 22-30(2B) inserted by No 72 of 2011, s 3 and Sch 1 item 16, applicable in relation to a notice given under subsection 22-30(2A) of the Higher Education Support Act 2003 (as inserted) after 30 June 2011.
22-30(3)
If the Minister makes a determination under subsection (1) in respect of a body, the Minister must give to the body a notice under section
22-20 within a reasonable period of time after giving a copy of the determination to the body.
History
S 22-30(3) amended by No 72 of 2011, s 3 and Sch 1 item 17, by substituting "a reasonable period of time" for "48 hours", applicable in relation to a notice given under subsection 22-30(2A) of the Higher Education Support Act 2003 (as inserted) after 30 June 2011.
22-30(4)
A determination under this section:
(a)
takes effect accordingly on the day specified in the determination; and
(b)
ceases to have effect if the Minister decides not to revoke the body's approval as a higher education provider.
SECTION 22-32
Determination retaining approval as a provider in respect of existing students following suspension of approval
22-32(1)
The Minister may determine, in writing, that a suspension of a body's approval as a higher education provider under section
22-30 is of no effect for the purposes of:
(a)
grants to the body under this Chapter; and
(b)
assistance payable to the body's students under Chapter
3;to the extent that the grants or assistance relate to students of the body who have not completed the *courses of study in which they were enrolled with the body on the day specified for the purposes of paragraph
22-30(4)(a).
22-32(2)
A copy of the determination must be given to the body concerned.
22-32(3)
The body is taken, for the purposes of this Act, to continue to be a higher education provider, but only to the extent referred to in subsection (1).
22-32(4)
Subsection (3) does not prevent the Minister subsequently revoking the body's approval as a higher education provider under this Division.
22-32(5)
A determination made under subsection (1) is not a legislative instrument.
History
S 22-32 inserted by No 170 of 2007, s 3 and Sch 1 item 6, effective 1 January 2008.
SECTION 22-35
22-35
Revocations are legislative instruments
(Repealed by No 160 of 2012)
History
S 22-35 repealed by No 160 of 2012, s 3 and Sch 2 item 6, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012. S 22-35 formerly read:
SECTION 22-35 Revocations are legislative instruments
22-35(1)
A notice of revocation under subsection 22-20(3) is a legislative instrument.
22-35(2)
A decision of the Minister to revoke the approval of a higher education provider takes effect at the later of the following times:
(a)
on the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the notice could be passed;
(b)
the day specified in the notice of revocation under subsection 22-20(3) as the day on which the revocation takes effect.
Subdivision 22-D - Revocation of approval on application
SECTION 22-40
Revocation of approval as a provider on application
22-40(1)
The Minister may revoke the approval of a body as a higher education provider if the body requests the Minister in writing to revoke the approval.
22-40(2)
The request must be given to the Minister at least 30 days before the day on which the revocation is requested to have effect.
22-40(3)
The Minister must cause the body to be notified of the revocation. The notice must:
(a)
be in writing; and
(b)
be given to the body at least 14 days before the day on which the revocation is to take effect.
22-40(3A)
A notice of revocation under subsection (3) is a legislative instrument.
History
S 22-40(3A) inserted by No 72 of 2007, s 3 and Sch 10 item 2, effective 28 May 2007.
22-40(4)
The revocation has effect on the day requested unless another day is specified in the notice under subsection (3).
Subdivision 22-E - Notice of approval or revocation ceasing to have effect under the Legislation Act 2003
History
Subdiv 22-E heading substituted by No 126 of 2015, s 3 and Sch 1 item 271, effective 5 March 2016. The heading formerly read:
Subdivision 22-E - Notice of approval or revocation ceasing to have effect under the Legislative Instruments Act 2003
Subdiv 22-E heading substituted by No 160 of 2012, s 3 and Sch 2 item 7, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012. The heading formerly read:
Subdivision 22-E - Notice of approval ceasing to have effect under the Legislative Instruments Act 2003
Subdiv 22-E inserted by No 39 of 2009, s 3 and Sch 2 item 4, effective 24 June 2009. For application and transitional provisions, see note under s 16-5(3).
SECTION 22-45
Notice of approval ceasing to have effect under the
Legislation Act 2003
22-45(1)
This section applies if:
(a)
a decision of the Minister to approve a body corporate as a higher education provider has taken effect; and
(b)
the body ceases to be approved as a higher education provider because the notice of the approval ceases to have effect under Part
2 of Chapter
3 (parliamentary scrutiny of legislative instruments) of the
Legislation Act 2003.
History
S 22-45(1) amended by No 126 of 2015, s 3 and Sch 1 item 273, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003", effective 5 March 2016.
22-45(2)
The fact that the body ceases to be approved as a higher education provider does not:
(a)
affect:
(i)
the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or
(ii)
anything duly done or suffered in relation to the body before the cessation; or
(b)
affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or
(c)
affect any penalty, forfeiture or punishment incurred in respect of the body having been a higher education provider; or
(d)
affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the body had not ceased to be approved as a higher education provider.
History
S 22-45 inserted by No 39 of 2009, s 3 and Sch 2 item 4, effective 24 June 2009. For application and transitional provisions, see note under s 16-5(3).
SECTION 22-50
Notice of revocation ceasing to have effect under the
Legislation Act 2003
22-50(1)
This section applies if:
(a)
a decision of the Minister to revoke a body's approval as a higher education provider has taken effect; and
(b)
the decision to revoke the approval ceases to have effect because the notice of revocation ceases to have effect under Part
2 of Chapter
3 (parliamentary scrutiny of legislative instruments) of the
Legislation Act 2003.
History
S 22-50(1) amended by No 126 of 2015, s 3 and Sch 1 item 275, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003" in para (b), effective 5 March 2016.
22-50(2)
The fact that the decision to revoke the approval ceases to have effect does not:
(a)
affect:
(i)
the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or
(ii)
anything duly done or suffered in relation to the body before the cessation; or
(b)
affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or
(c)
affect any penalty, forfeiture or punishment incurred in respect of the body before the cessation; or
(d)
affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the decision to revoke the approval had not ceased to have effect.
History
S 22-50 inserted by No 160 of 2012, s 3 and Sch 2 item 8, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012.
PART 2-2 - COMMONWEALTH
GRANT SCHEME
Division 27 - Introduction
SECTION 27-1
27-1
What this Part is about
Grants are payable under this Part to higher education providers that meet certain requirements. These grants are paid in relation to Commonwealth supported places. Grants are subject to several conditions relating to the provision of Commonwealth supported places and other matters. Amounts of grants may be reduced, or some or all of a grant may be repayable if a condition is breached (see Part
2-5).
Note:
This Part does not apply to Table C providers: see section 5-1.
History
S 27-1 amended by No 104 of 2011, s 3 and Sch 1 item 2, by substituting "These grants are paid in relation to Commonwealth supported places." for "Amounts of grants are based largely on the number of Commonwealth supported places that the Minister allocates to each provider.", applicable in relation to the year commencing on 1 January 2012 or a later year.
SECTION 27-5
27-5
Commonwealth Grant Scheme Guidelines
The grants payable under this Part are also dealt with in the Commonwealth Grant Scheme Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The Commonwealth Grant Scheme Guidelines are made by the Minister under section 238-10.
History
S 27-5 substituted by No 93 of 2020, s 3 and Sch 5 item 3, effective 28 October 2020. S 27-5 formerly read:
SECTION 27-5 Guidelines
27-5(1)
The grants payable under this Part are also dealt with in the Commonwealth Grant Scheme Guidelines and the Tuition Fee Guidelines.
27-5(2)
The provisions of this Part indicate:
(a)
when a particular matter is, or may be, dealt with in the guidelines; and
(b)
whether the matter is dealt with in the Commonwealth Grant Scheme Guidelines or the Tuition Fee Guidelines.
Note 1:
The Commonwealth Grant Scheme Guidelines and the Tuition Fee Guidelines are made by the Minister under section 238-10.
Note 2:
The Commonwealth Grant Scheme Guidelines may also deal with matters arising under section 93-10.
Division 30 - Which higher education providers are eligible for
a grant?
Subdivision 30-A - Basic rules
SECTION 30-1
Eligibility for grants
30-1(1)
A grant under this Part is payable, as a benefit to students, to a higher education provider, in respect of the year 2005 or a later year, if:
(a)
the provider:
(i)
is a *Table A provider; and
(ii)
has entered into a funding agreement with the Commonwealth under section 30-25 in respect of a period that includes that year; or
(b)
all of the following apply:
(i)
the provider is a higher education provider specified in the Commonwealth Grant Scheme Guidelines as a higher education provider that can be paid grants under this Part;
(ii)
the Minister has made an allocation under section 30-10 to the provider for that year;
(iii)
the provider has entered into a funding agreement with the Commonwealth under section 30-25 in respect of a period that includes that year.
(c)
(Repealed by No 104 of 2011)
History
S 30-1(1) amended by No 93 of 2020, s 3 and Sch 1 item 1, by substituting para (b)(ii), effective 28 October 2020. For application provisions, see note under s 30-12. Para (b)(ii) formerly read:
(ii)
the Minister has allocated a *number of Commonwealth supported places to the provider for that year under section 30-10;
S 30-1(1) amended by No 104 of 2011, s 3 and Sch 1 item 3, by substituting para (a) and (b) for para (a), (b) and (c), applicable in relation to the year commencing on 1 January 2012 or a later year. Para (a), (b) and (c) formerly read:
(a)
the provider is:
(i)
a *Table A provider; or
(ii)
a higher education provider specified in the Commonwealth Grant Scheme Guidelines as a higher education provider that can be paid grants under this Part; and
(b)
the Minister has allocated a *number of Commonwealth supported places to the provider for that year under section 30-10; and
(c)
the provider has entered into a funding agreement with the Commonwealth under section 30-25 in respect of a period that includes that year.
S 30-1(1) amended by No 119 of 2007, s 3 and Sch 3 item 10, by omitting "in respect of that year or" after "under section 30-25" in para (c), applicable:
(a) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2009 and later years; and
(b) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in respect of each year in a period of 3 years that includes 2008.
S 30-1(1) amended by No 119 of 2007, s 3 and Sch 3 item 1, by inserting "or in respect of a period that includes that year" in para (c), applicable to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2008 or in respect of a period that includes 2008.
30-1(2)
However, a grant is payable to a higher education provider that is not a *Table A provider only if the grant relates only to *national priorities.
SECTION 30-5
30-5
Maximum grants
(Repealed by No 104 of 2011)
[
CCH Note:
No 178 of 2011, s 3 and Sch 1 item 1 contains the following application provision:
1 Continued and modified application of section 30-5
(1)
Despite the repeal of section 30-5 of the Higher Education Support Act 2003, that section continues to apply in respect of 2011 as if the reference to $5,011,996,000 were a reference to $5,061,668,000.
(2)
To avoid doubt, the Higher Education Support Act 2003 as it otherwise has effect continues to apply for the purposes of subitem (1).
]
History
S 30-5 repealed by No 104 of 2011, s 3 and Sch 1 item 4, applicable in relation to the year commencing on 1 January 2012 or a later year. S 30-5 formerly read:
SECTION 30-5 Maximum grants
30-5(1)
The Minister must ensure that the total amounts of all grants payable under this Part in respect of a year, as a result of all the allocations to higher education providers for that year under section 30-10, does not exceed:
(a)
for the year 2005 - $3,066,956,000; or
(b)
for the year 2006 - $3,266,479,000; or
(c)
for the year 2007 - $3,512,501,000; or
(d)
for the year 2008 - $3,793,766,000; or
(e)
for the year 2009 - $4,138,233,000; or
(f)
for the year 2010 - $4,833,034,000; or
(g)
for the year 2011 - $5,011,996,000.
(h)
(Omitted)
History
S 30-5(1) amended by No 129 of 2010, s 3 and Sch 1 item 1, by substituting paras (f) and (g), effective 1 December 2010. Paras (f) and (g) formerly read:
(f)
for the year 2010 - $4,467,881,000; or
(g)
for the year 2011 - $4,695,755,000.
S 30-5(1) amended by No 86 of 2009, s 3 and Sch 1 item 1, by substituting paras (f) and (g) for paras (f) to (h), effective 18 September 2009. Paras (f) to (h) formerly read:
(f)
for the year 2010 - $4,307,474,000; or
(g)
for the year 2011 - $4,439,813,000; or
(h)
for the year 2012 - $4,547,229,000.
S 30-5(1) amended by No 43 of 2008, s 3 and Sch 2 item 1, by substituting paras (d) to (h) for paras (d) to (g), effective 25 June 2008. Paras (d) to (g) formerly read:
(d)
for the year 2008 - $3,843,664,000; or
(e)
for the year 2009 - $3,907,818,000; or
(f)
for the year 2010 - $3,956,115,000; or
(g)
for the year 2011 - $3,986,485,000.
S 30-5 amended by No 119 of 2007, s 3 and Sch 1 item 1, by substituting paras (d) to (g) for paras (d) to (f), effective 28 June 2007. Paras (d) to (f) formerly read:
(d)
for the year 2008 - $3,605,670,000; or
(e)
for the year 2009 - $3,654,404,000; or
(f)
for the year 2010 - $3,694,619,000.
S 30-5 amended by No 121 of 2006, s 3 and Sch 1 item 2, by substituting paras (c), (d), (e) and (f) for paras (c), (d) and (e), effective 4 November 2006. Paras (c), (d) and (e) formerly read:
(c)
for the year 2007 - $3,415,627,000; or
(d)
for the year 2008 - $3,483,528,000; or
(e)
for the year 2009 - $3,512,238,000.
30-5(2)
For the purposes of subsection (1), regard must be had to any adjustments under Subdivision 33-C to amounts for the year.
Note:
The adjustments would be in respect of the preceding year.
History
S 30-5(2) amended by No 119 of 2007, s 3 and Sch 4 item 1, by substituting "Subdivision 33-C" for "section 33-20", effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
Subdivision 30-B - Allocation of places
SECTION 30-10
Allocation of places
30-10(1)
The Minister may allocate a specified number of Commonwealth supported places for a year to:
(a)
a *Table A provider in relation to *designated higher education courses; and
(b)
a higher education provider referred to in subparagraph
30-1(1)(b)(i).
Note:
The Minister does not allocate places to Table A providers in relation to higher education courses or demand driven higher education courses.
History
S 30-10(1) amended by No 39 of 2021, s 3 and Sch 2 item 3, by substituting "Commonwealth supported places" for "Commonwealth support places", effective 28 May 2021. No 39 of 2021, s 3 and Sch 2 item 4 contain the following application, saving and transitional provisions:
4 Application, saving and transitional provisions
(1)
Parts 2-2 and 2-4 of the Higher Education Support Act 2003 apply on and after the commencement of this item to the University of Notre Dame Australia, in relation to the calendar year 2021, as if it continued to be a Table B provider.
(2)
The amendments made by this Schedule do not affect the validity of a grant to the University of Notre Dame Australia, being a grant that was approved under Part 2-2A or 2-3 of the Higher Education Support Act 2003 before the commencement of this item.
(3)
If:
(a)
immediately before the commencement of this item, the University of Notre Dame Australia was providing a unit of study; and
(b)
at any time, in relation to that unit of study, there is a FEE-HELP debt under subsection 137-10(1) of the Higher Education Support Act 2003;
then:
(c)
if the census date for that unit of study was before the commencement of this item - paragraph 137-10(2)(a) of the Higher Education Support Act 2003 applies in relation to the debt; and
(d)
if the census date for that unit of study is on or after the commencement of this item - paragraph 137-10(2)(b) or (c) of the Higher Education Support Act 2003 applies in relation to the debt (as the case requires).
S 30-10(1) substituted by No 93 of 2020, s 3 and Sch 1 item 2, effective 28 October 2020. For application provisions, see note under s 30-12. S 30-10(1) formerly read:
30-10(1)
Before the commencement of a year, the Minister may, for that year, allocate a specified *number of Commonwealth supported places to:
(a)
a *Table A provider in relation to *designated courses of study; and
(b)
a higher education provider referred to in subparagraph 30-1(1)(b)(i).
Note:
The Minister does not allocate places to Table A providers in relation to non-designated courses of study.
S 30-10(1) substituted by No 104 of 2011, s 3 and Sch 1 item 5, applicable in relation to the year commencing on 1 January 2012 or a later year. S 30-10(1) formerly read:
30-10(1)
Before the commencement of a year, the Minister may allocate a specified *number of Commonwealth supported places to a higher education provider for that year.
30-10(2)
The allocation must specify the distribution of those places between the *funding clusters.
30-10(2A)
If the provider has indicated to the Minister its preferred distribution of those places, the Minister must have regard to that preferred distribution in deciding the distribution of those places.
30-10(3)
(Repealed by No 104 of 2011)
History
S 30-10(3) repealed by No 104 of 2011, s 3 and Sch 1 item 6, applicable in relation to the year commencing on 1 January 2012 or a later year. S 30-10(3) formerly read:
30-10(3)
The allocation may also specify:
(a)
the number of those places that have a regional loading; and
(b)
the number of those places that have a medical student loading; and
(c)
the number of those places that have an enabling loading; and
(d)
the number of those places that have a transitional loading.
S 30-10(3) amended by No 43 of 2008, s 3 and Sch 2 item 2, by inserting para (d) at the end, applicable in respect of the year 2009 or a later year.
30-10(4)
If the provider is not a *Table A provider, the allocation must specify:
(a)
that it is only in respect of *national priorities; and
(b)
the number of places for each national priority for which the provider is allocated places; and
(c)
the number of places (if any) for each *funding cluster that are in respect of *non-grandfathered students; and
(d)
the number of places (if any) for each funding cluster (other than the *first funding cluster and the *second funding cluster) that are in respect of *grandfathered students; and
(e)
the number of places (if any) for each *grandfathered funding cluster part that are in respect of grandfathered students.
History
S 30-10(4) amended by No 93 of 2020, s 3 and Sch 1 item 3, by inserting para (c) to (e), effective 28 October 2020. For application provisions, see note under s 30-12.
30-10(5)
If the allocation made under subsection (1) is made in writing, the allocation is not a legislative instrument.
History
S 30-10(5) inserted by No 104 of 2011, s 3 and Sch 1 item 7, applicable in relation to the year commencing on 1 January 2012 or a later year.
SECTION 30-12
Designated higher education courses
30-12(1)
Each of the following is a
designated higher education course
in relation to a *Table A provider:
(a)
a *course of study in medicine;
(b)
a *course of study of a kind determined under subsection (2).
30-12(2)
The Minister may, by legislative instrument, determine a kind of *course of study for the purposes of paragraph (1)(b).
History
S 30-12 substituted by No 93 of 2020, s 3 and Sch 1 item 4, effective 28 October 2020. No 93 of 2020, s 3 and Sch 1 items 41 and 42 contains the following application provisions:
41 Application of amendments
41
The amendments of the Higher Education Support Act 2003 made by this Schedule apply in relation to the following:
(a)
funding agreements entered into under Part 2-2 of that Act in respect of 2021 and later calendar years;
(b)
grants payable under that Part for 2021 and later calendar years.
42 Indexation
42
Despite anything in Division 198 of Part 5-6 of the Higher Education Support Act 2003, an amount specified in subsection 33-10(1) or (2) of that Act, as amended by this Schedule, is not to be indexed on 1 January 2021.
S 30-12 formerly read:
SECTION 30-12 Designated courses of study
30-12(1)
Each of the following are
designated courses of study
in relation to a *Table A provider:
(a)
non-research *postgraduate courses of study;
(b)
*courses of study in medicine;
(c)
courses of study specified by the Minister under subsection (2).
30-12(2)
The Minister may, by legislative instrument, specify *courses of study for the purposes of paragraph (1)(c).
S 30-12 inserted by No 104 of 2011, s 3 and Sch 1 item 8, applicable in relation to the year commencing on 1 January 2012 or a later year.
SECTION 30-15
30-15
Funding clusters
The
funding clusters
are:
Funding clusters
|
Item
|
Funding clusters
|
1 |
Law, Accounting, Administration, Economics, Commerce, Communications, Society and Culture |
2 |
Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology, Professional Pathway Social Work |
3 |
Nursing, Indigenous and Foreign Languages, Engineering, Surveying, Environmental Studies, Science |
4 |
Agriculture, Medicine, Dentistry, Veterinary Science, Pathology |
History
S 30-15 amended by No 55 of 2021, s 3 and Sch 1 item 25, by substituting "Indigenous and Foreign Languages" for "Foreign Languages" in table item 3, effective 25 June 2021 and applicable in relation to the following: (a) funding agreements entered into under Part 2-2 of that Act in respect of 2021 and later calendar years; (b) grants payable under Part 2-2 of that Act for 2021 and later calendar years.
S 30-15 substituted by No 93 of 2020, s 3 and Sch 1 item 5, effective 28 October 2020. For application provisions, see note under s 30-12. S 30-15 formerly read:
SECTION 30-15 Funding clusters
30-15
The
funding clusters
are:
Funding clusters
|
Law, Accounting, Administration, Economics, Commerce |
Humanities |
Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health |
Education |
Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts |
Nursing |
Engineering, Science, Surveying |
Dentistry, Medicine, Veterinary Science, Agriculture |
S 30-15 amended by No 86 of 2009, s 3 and Sch 2 item 1, by substituting the table, effective 1 January 2010. No 86 of 2009, s 3 and Sch 2 item 4 contains the following transitional provision:
Transitional provision
4
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2010 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made.
The table formerly read:
Funding clusters
|
Law, Accounting, Administration, Economics, Commerce |
Humanities |
Mathematics, Statistics, Behavioural Science, Social Studies, Education, Computing, Built Environment, Other Health |
Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts |
Nursing |
Engineering, Science, Surveying |
Dentistry, Medicine, Veterinary Science, Agriculture |
S 30-15 (table) substituted by No 119 of 2007, s 3 and Sch 2 item 1, effective 1 January 2008. The table formerly read:
Funding clusters
|
Law |
Accounting, Administration, Economics, Commerce |
Humanities |
Mathematics, Statistics |
Behavioural Science, Social Studies |
Computing, Built Environment, Health |
Foreign Languages, Visual and Performing Arts |
Engineering, Science, Surveying |
Dentistry, Medicine, Veterinary Science |
Agriculture |
Education |
Nursing |
SECTION 30-20
30-20
National priorities
A
national priority
is
a particular outcome:
(a)
that relates to
the provision of higher education; and
(b)
that is an outcome specified in the Commonwealth Grant Scheme
Guidelines as a national priority.
Note:
The following are examples of national priorities:
(a) increasing the number of persons undertaking particular courses
of study;
(b) increasing the number of particular kinds of persons undertaking
courses of study;
(c) increasing the number of persons in particular regions undertaking
courses of study.
Subdivision 30-C - Funding agreements
SECTION 30-25
Funding agreements
30-25(1)
The Minister may, on behalf of the Commonwealth, enter into a funding agreement with a higher education provider relating to grants under this Part in respect of each year in a period of 3 years (the
grant years
).
History
S 30-25(1) substituted by No 119 of 2007, s 3 and Sch 3 item 11, applicable:
(a) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2009 and later years; and
(b) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in respect of each year in a period of 3 years that includes 2008.
S 30-25(1) formerly read:
30-25(1)
The Minister may, on behalf of the Commonwealth, enter into a funding agreement with a higher education provider:
(a)
relating to a grant under this Part in respect of a year (the
grant year
); or
(b)
relating to grants under this Part in respect of each year in a period of 3 years (the
grant years
).
S 30-25(1) substituted by No 119 of 2007, s 3 and Sch 3 item 2, applicable to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2008 or in respect of a period that includes 2008. S 30-25(1) formerly read:
30-25(1)
The Minister may, on behalf of the Commonwealth, enter into a funding agreement with a higher education provider relating to a grant under this Part in respect of a year (the grant year).
30-25(1A)
In negotiating the agreement the Minister must have regard to all of the types of matters that the provider has indicated to the Minister it wishes to be specified in the agreement.
30-25(2)
The agreement may specify conditions to which the grants are subject, that are additional to the conditions that apply under Division
36.
Note:
It is a condition of the grants that the provider comply with the agreement: see section 36-65.
History
S 30-25(2) amended by No 119 of 2007, s 3 and Sch 3 items 12 and 13, by substituting "the grants are" for "the grant is, or the grants are," and omitting "grant or" after "condition of the" in the note, applicable:
(a) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2009 and later years; and
(b) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in respect of each year in a period of 3 years that includes 2008.
S 30-25(2) amended by No 119 of 2007, s 3 and Sch 3 items 3 and 4, by inserting ", or the grants are," after "the grant is" and inserting "or grants" after "the grant" in the note, applicable to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2008 or in respect of a period that includes 2008.
30-25(2A)
However, the agreement must not specify as a condition to which the grants are subject a matter in respect of which the Minister could have made a determination under subsection
36-15(2) (or could have made such a determination but for subsection
36-15(3)).
Note:
The Minister has the power under subsection 36-15(2) to determine that students are not to be enrolled as Commonwealth supported students in particular courses. The determination is disallowable (see subsection 36-15(3)).
History
S 30-25(2A) amended by No 119 of 2007, s 3 and Sch 3 item 14, by substituting "the grants are" for "the grant is, or the grants are,", applicable:
(a) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2009 and later years; and
(b) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in respect of each year in a period of 3 years that includes 2008.
S 30-25(2A) amended by No 119 of 2007, s 3 and Sch 3 item 5, by inserting ", or the grants are," after "the grant is", applicable to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003in relation to grants in respect of 2008 or in respect of a period that includes 2008.
30-25(2B)
Where the agreement specifies conditions to which the grants are subject, that are additional to the conditions that apply under Division
36, those conditions must not relate to industrial relations matters.
History
S 30-25(2B) amended by No 119 of 2007, s 3 and Sch 3 item 14, by substituting "the grants are" for "the grant is, or the grants are,", applicable:
(a) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2009 and later years; and
(b) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in respect of each year in a period of 3 years that includes 2008.
S 30-25(2B) amended by No 119 of 2007, s 3 and Sch 3 item 5, by inserting ", or the grants are," after "the grant is", applicable to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2008 or in respect of a period that includes 2008.
30-25(3)
Without limiting subsection (2), the agreement may specify:
(aa)
the *number of Commonwealth supported places allocated to the provider for a *funding cluster, or a *grandfathered funding cluster part, for the grant year; and
(a)
in relation to one or more of the following:
(i)
places in *undergraduate courses of study;
(ii)
places in non-research *postgraduate courses of study;
(iii)
places in courses of study in medical programs;
(iv)
places in courses of study in *enabling courses;
the minimum *number of Commonwealth supported places that the provider must provide in the grant year or grant years, or the maximum number of Commonwealth supported places that the provider may provide in the grant year or grant years, or both; and
(b)
(Repealed by No 93 of 2020)
(c)
the maximum number of Commonwealth supported places provided by the provider which can have a medical student loading in the grant years; and
(ca)
(Repealed by No 93 of 2020)
(cb)
(Repealed by No 93 of 2020)
(d)
(Repealed by No 93 of 2020)
(da)
(Repealed by No 93 of 2020)
(e)
the maximum amount of transition fund loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and
(g)
adjustments that will apply to the amount of a grant payable to the provider under this Part if the provider breaches a condition of the grant.
History
S 30-25(3) amended by No 93 of 2020, s 3 and Sch 3 item 4, by repealing para (b), (ca), (d) and (da), effective 1 January 2021. Para (b), (ca), (d) and (da) formerly read:
(b)
the maximum number of Commonwealth supported places provided by the provider which can have a regional loading in the grant years; and
(ca)
the maximum number of Commonwealth supported places provided by the provider which can have an enabling loading in the grant years; and
(d)
the maximum amount of regional loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and
(da)
the maximum amount of enabling loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and
S 30-25(3) amended by No 93 of 2020, s 3 and Sch 1 items 6-8, by substituting "for a *funding cluster, or a *grandfathered funding cluster part," for "under section 30-10" in para (aa), repealing para (cb) and substituting "transition fund" for "transitional" in para (e), effective 28 October 2020. For application provisions, see note under s 30-12. Para (cb) formerly read:
(cb)
the maximum number of Commonwealth supported places provided by the provider which can have a transitional loading in the grant years; and
S 30-25(3) amended by No 104 of 2011, s 3 and Sch 1 item 9, by inserting para (aa), applicable in relation to the year commencing on 1 January 2012 or a later year.
S 30-25(3) amended by No 43 of 2008, s 3 and Sch 2 items 3 and 4, by inserting paras (ca) and (e), applicable in respect of the year 2009 or a later year.
S 30-25(3) amended by No 119 of 2007, s 3 and Sch 3 item 15, by omitting "grant year or" before "grant years" in paras (b) to (da), applicable:
(a) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2009 and later years; and
(b) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in respect of each year in a period of 3 years that includes 2008.
S 30-25(3) amended by No 119 of 2007, s 3 and Sch 3 items 6 and 7, by inserting ", or grant years" after "grant year" in para (a) (wherever occurring), applicable to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2008 or in respect of a period that includes 2008.
30-25(4)
(Repealed by No 104 of 2011)
History
S 30-25(4) repealed by No 104 of 2011, s 3 and Sch 3 item 4, applicable in relation to the year commencing on 1 January 2012 or a later year. S 30-25(4) formerly read:
30-25(4)
The Minister must cause a copy of the agreement to be laid before each House of the Parliament within 15 sitting days of that House after the making of the agreement.
SECTION 30-27
Specification of maximum basic grant amounts in funding agreements
Maximum basic grant amounts for Table A providers
30-27(1)
Subject to subsections (2), (3) and (5), a funding agreement for a higher education provider that is a *Table A provider:
(a)
must specify an amount as the
maximum basic grant amount
payable to the provider for a *grant year for *higher education courses; and
(b)
may specify an amount as the
maximum basic grant amount
payable to the provider for a *grant year for each of the following:
(i)
*designated higher education courses;
(ii)
*demand driven higher education courses.
Table A providers - maximum basic grant amount for higher education courses
30-27(2)
If a funding agreement for a *Table A provider is in respect of 2021, 2022 and 2023, the maximum basic grant amount for the provider for each of those years for *higher education courses must not be less than the amount specified in the Commonwealth Grant Scheme Guidelines for the purposes of this subsection for the provider for each of those years for those courses.
30-27(3)
If a funding agreement for a *Table A provider is in respect of other later years, the maximum basic grant amount for the provider for each of those years for *higher education courses must not be less than:
(a)
for 2024 - the amount specified in the Commonwealth Grant Scheme Guidelines for the purposes of this paragraph for the provider for that year for those courses; and
(b)
for any other later year - the maximum basic grant amount specified in the provider's funding agreement for the preceding year for those courses.
30-27(4)
Without limiting subsection (2) and paragraph (3)(a), the Commonwealth Grant Scheme Guidelines may:
(a)
specify different amounts for different years for the purposes of that subsection; and
(b)
specify different amounts for different *Table A providers for the purposes of that subsection or paragraph.
Table A providers - maximum basic grant amount for designated higher education courses
30-27(5)
The maximum basic grant amount for a *Table A provider for a *grant year for *designated higher education courses must not be less than the amount worked out for the year for those courses using the method statement set out in paragraph
33-5(3)(b) with the following modifications:
(a)
read a reference in step 1 of that statement to places provided by the provider in a *funding cluster as a reference to places allocated under section
30-10 to the provider in that funding cluster;
(b)
disregard paragraph (a) of that step.
Maximum basic grant amount for non-Table A providers
30-27(6)
Subject to subsection (7), a funding agreement for a higher education provider (other than a *Table A provider) may specify an amount as the
maximum basic grant amount
payable to the provider for a *grant year.
30-27(7)
The maximum basic grant amount for a higher education provider (other than a *Table A provider) for a *grant year must not be less than the amount worked out for the year using the method statement set out in paragraph
33-5(7)(b) with the following modifications:
(a)
read a reference in steps 1, 2 and 3 of that statement to places provided by the provider in a *funding cluster or a *grandfathered funding cluster part as a reference to places allocated under section
30-10 to the provider in that funding cluster or grandfathered funding cluster part;
(b)
disregard paragraph (a) of each of those steps.
History
S 30-27 substituted by No 93 of 2020, s 3 and Sch 1 item 9, effective 28 October 2020. For application provisions, see note under s 30-12. S 30-27 formerly read:
SECTION 30-27 Funding agreement may specify maximum basic grant amounts
30-27(1)
A funding agreement may:
(a)
for a higher education provider that is a *Table A provider - specify a
maximum basic grant amount
payable to the provider for a grant year for:
(i)
*designated courses of study; and
(ii)
*non-designated courses of study; and
(b)
for a higher education provider that is not a Table A provider - specify a
maximum basic grant amount
payable to the provider for a grant year.
Table A providers - maximum basic grant amounts for designated courses of study
30-27(2)
The *maximum basic grant amount for a *Table A provider for *designated courses of study must not be less than the amount worked out under subsection 33-5(4) for the provider for the grant year.
Table A providers - maximum basic grant amounts for non-designated courses of study
30-27(3)
The *maximum basic grant amount for a *Table A provider for *non-designated courses of study must not be less than:
(a)
if a maximum basic grant amount was specified in the provider's funding agreement for the preceding year for non designated courses of study - the amount that was so specified; or
(b)
if a maximum basic grant amount was not specified in the provider's funding agreement for the preceding year for non-designated courses of study - the amount worked out under paragraph 33-5(5)(a) for the provider for the preceding year.
30-27(4)
(Repealed by No 104 of 2011)
History
S 30-27(4) repealed by No 104 of 2011, s 3 and Sch 3 item 4, applicable in relation to the year commencing on 1 January 2012 or a later year. S 30-27(4) formerly read:
Non-Table A providers - maximum basic grant amounts
30-27(4)
The *maximum basic grant amount for a provider that is not a *Table A provider must not be less than the amount worked out under subsection 33-5(8) for the provider for the grant year.
S 30-27 inserted by No 104 of 2011, s 3 and Sch 1 item 10, applicable in relation to the year commencing on 1 January 2012 or a later year. No 104 of 2011, s 3 and Sch 1 item 35 contains the following transitional provision:
35 Transitional-maximum basic grant amount for non-designated courses of study for Table A providers for 2012
35
For the purposes of working out the amount mentioned in paragraph 30-27(3)(b) of the new Act for the year 2012, the amount is to be worked out as if paragraph 33-5(5)(a) of the new Act applied to the year 2011.
SECTION 30-28
30-28
Funding agreement to be published
The *Secretary must cause a copy of each funding agreement to be published on the Department's website within 28 days after the making of the agreement.
History
S 30-28 inserted by No 104 of 2011, s 3 and Sch 3 item 5, applicable in relation to the year commencing on 1 January 2012 or a later year.
Division 33 - How are grant amounts worked out?
Subdivision 33-A - Basic rule
SECTION 33-1
How grant amount is worked out
33-1(1)
The amount of a grant payable to a higher education provider under this Part for a year is worked out by:
(a)
working out the *total basic grant amount for the provider for that year under Subdivision
33-B; and
(b)
adding:
(i)
(Repealed by No 93 of 2020)
(ii)
the amount of any medical student loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and
(iii)
(Repealed by No 93 of 2020)
(iv)
the amount of any transition fund loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and
(v)
the amount of any performance funding grant amount worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year.
(c)
(Repealed by No 104 of 2011)
History
S 33-1(1) amended by No 93 of 2020, s 3 and Sch 3 item 5, by repealing para (b)(i) and (iii), effective 1 January 2021. Para (b)(i) and (iii) formerly read:
(i)
the amount of any regional loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and
(iii)
the amount of any enabling loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and
S 33-1(1) amended by No 93 of 2020, s 3 and Sch 1 items 10 and 11, by substituting "*total basic" for "*basic" in para (a) and "transition fund" for "transitional" in para (b)(iv), effective 28 October 2020. For application provisions, see note under s 30-12.
S 33-1(1) amended by No 104 of 2011, s 3 and Sch 1 items 11 and 12, by substituting para (b) and repealing para (c), applicable in relation to the year commencing on 1 January 2012 or a later year.No 104 of 2011, s 3 and Sch 1 item 36 contains the following transitional provisions:
36 Transitional-adjustment of basic grant amount for 2012
36
A higher education provider's basic grant amount for the year 2012 (as worked out under the new Act) is to be adjusted as if the amendments made by items 11, 15, 16 and 18 of this Schedule had not been made.
Note:
Adjustments of basic grant amounts for 2011 or an earlier year are not affected by the amendments in this Schedule.
Para (b) and (c) formerly read:
(b)
if applicable, adjusting the basic grant amount under Subdivision 33-C; and
(c)
if applicable, and if the year is 2011 or a later year - adding the performance funding grant amount for the provider for that year.
S 33-1(1) amended by No 86 of 2009, s 3 and Sch 1 item 2, by inserting para (c) at the end, effective 18 September 2009.
33-1(1A)
(Repealed by No 104 of 2011)
History
S 33-1(1A) repealed by No 104 of 2011, s 3 and Sch 1 item 13, applicable in relation to the year commencing on 1 January 2012 or a later year. S 33-1(1A) formerly read:
33-1(1A)
In subsection (1):
performance funding grant amount
for a higher education provider for a year is the amount (if any) worked out under the Commonwealth Grant Scheme Guidelines.
S 33-1(1A) inserted by No 86 of 2009, s 3 and Sch 1 item 3, effective 18 September 2009.
33-1(2)
Advances may be paid to a higher education provider under Subdivision
33-D.
Note:
Part 5-1 deals with how payments can be made.
Subdivision 33-B - Total basic grant amounts
History
Subdiv 33-B heading substituted by No 93 of 2020, s 3 and Sch 1 item 12, effective 28 October 2020. For application provisions, see note under s 30-12. The heading formerly read:
Subdivision 33-B - Basic grant amounts
SECTION 33-5
Total basic grant amounts
Total basic grant amount for Table A providers
33-5(1)
The
total basic grant amount
for a *Table A provider for a year is the sum of the following amounts:
(a)
the amount for *higher education courses (see subsection (2));
(b)
the amount for *designated higher education courses (see subsections (3) and (4));
(c)
the amount for *demand driven higher education courses (see subsections (5) and (6)).
Table A providers - amount for higher education courses
33-5(2)
For the purposes of paragraph (1)(a), the amount for *higher education courses is the lesser of:
(a)
the *maximum basic grant amount for the year for those courses that is specified in the *Table A provider's funding agreement; and
(b)
the amount worked out for the year using the following method statement.
Method statement
Step 1.
For each *funding cluster in which the provider has provided places in those courses in respect of *non-grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by
(b) the *Commonwealth contribution amount for a place in that funding cluster.
Step 2.
For each *funding cluster (other than the *first funding cluster and the *second funding cluster) in which the provider has provided places in those courses in respect of *grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by
(b) the *Commonwealth contribution amount for a place in that funding cluster.
Step 3.
For each *grandfathered funding cluster part in which the provider has provided places in those courses in respect of *grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that grandfathered funding cluster part in respect of those students; by
(b) the *grandfathered Commonwealth contribution amount for a place in that grandfathered funding cluster part.
Step 4.
Add together all of the amounts worked out under steps 1, 2 and 3.
Table A providers - amount for designated higher education courses
33-5(3)
For the purposes of paragraph (1)(b) and subject to subsection (4), the amount for *designated higher education courses is the lesser of:
(a)
the *maximum basic grant amount for the year for those courses that is specified in the *Table A provider's funding agreement; and
(b)
the amount worked out for the year using the following method statement.
Method statement
Step 1.
For each *funding cluster in which the provider has provided places in those courses, multiply the *Commonwealth contribution amount for a place in that funding cluster by the lesser of the following:
(a) the number that is the sum of the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of *non-grandfathered students and in respect of *grandfathered students;
(b) the number of Commonwealth supported places allocated to the provider for that funding cluster.
Step 2.
Add together all of the amounts worked out under step 1.
33-5(4)
If a *maximum basic grant amount for the year for the *designated higher education courses is not specified in the *Table A provider's funding agreement, the amount for those courses is the amount worked out for the year using the method statement set out in paragraph (3)(b).
Table A providers - amount for demand driven higher education courses
33-5(5)
For the purposes of paragraph (1)(c) and subject to subsection (6), the amount for *demand driven higher education courses is the lesser of:
(a)
the *maximum basic grant amount for the year for those courses that is specified in the *Table A provider's funding agreement; and
(b)
the amount worked out for the year using the following method statement.
Method statement
Step 1.
For each *funding cluster in which the provider has provided places in those courses in respect of *non-grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by
(b) the *Commonwealth contribution amount for a place in that funding cluster.
Step 2.
For each *funding cluster (other than the *first funding cluster and the *second funding cluster) in which the provider has provided places in those courses in respect of *grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by
(b) the *Commonwealth contribution amount for a place in that funding cluster.
Step 3.
For each *grandfathered funding cluster part in which the provider has provided places in those courses in respect of *grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that grandfathered funding cluster part in respect of those students; by
(b) the *grandfathered Commonwealth contribution amount for a place in that grandfathered funding cluster part.
Step 4.
Add together all of the amounts worked out under steps 1, 2 and 3.
33-5(6)
If a *maximum basic grant amount for the year for the *demand driven higher education courses is not specified in the *Table A provider's funding agreement, the amount for those courses is the amount worked out for the year using the method statement set out in paragraph (5)(b).
Total basic grant amount for non-Table A providers
33-5(7)
Subject to subsection (8), the
total basic grant amount
for a higher education provider (other than a *Table A provider) for a year is the lesser of:
(a)
the *maximum basic grant amount for the year that is specified in the provider's funding agreement; and
(b)
the amount worked out for the year using the following method statement.
Method statement
Step 1.
For each *funding cluster in which the provider has provided places in respect of *non-grandfathered students, multiply the *Commonwealth contribution amount for a place in that funding cluster by the lesser of the following:
(a) the *number of Commonwealth supported places provided by the provider in that funding cluster in respect of those students;
(b) the number of Commonwealth supported places allocated to the provider for that funding cluster in respect of those students.
Step 2.
For each *funding cluster (other than the *first funding cluster and the *second funding cluster) in which the provider has provided places in respect of *grandfathered students, multiply the *Commonwealth contribution amount for a place in that funding cluster by the lesser of the following:
(a) the *number of Commonwealth supported places provided by the provider in that funding cluster in respect of those students;
(b) the number of Commonwealth supported places allocated to the provider for that funding cluster in respect of those students.
Step 3.
For each *grandfathered funding cluster part in which the provider has provided places in respect of *grandfathered students, multiply the *grandfathered Commonwealth contribution amount for a place in that grandfathered funding cluster part by the lesser of the following:
(a) the *number of Commonwealth supported places provided by the provider in that part in respect of those students;
(b) the number of Commonwealth supported places allocated to the provider for that part in respect of those students.
Step 4.
Add together all of the amounts worked out under steps 1, 2 and 3.
33-5(8)
If a *maximum basic grant amount for the year is not specified in the funding agreement of the higher education provider referred to in subsection (7), the
total basic grant amount
for the provider is the amount worked out for the year using the method statement set out in paragraph (7)(b).
History
S 33-5 substituted by No 93 of 2020, s 3 and Sch 1 item 13, effective 28 October 2020. For application provisions, see note under s 30-12. S 33-5 formerly read:
SECTION 33-5 Basic grant amounts
33-5(1)
This section sets out how to work out the
basic grant amount
for a higher education provider for a year.
Basic grant amounts for Table A providers
33-5(2)
For a *Table A provider, the *basic grant amount for a year is the sum of:
(a)
the amount for *designated courses of study (see subsection (3)); and
(b)
the amount for *non-designated courses of study (see subsections (5) and (6)).
Table A providers - amount for designated courses of study
33-5(3)
For the purposes of paragraph (2)(a), the amount for *designated courses of study is the lesser of:
(a)
the sum of the amounts worked out, for each *funding cluster in which the provider has provided places in *designated courses of study, by multiplying:
(i)
the *number of Commonwealth supported places provided by the provider in designated courses of study in that funding cluster; by
(ii)
the *Commonwealth contribution amount for a place in that funding cluster; and
(b)
either:
(i)
if there is a *maximum basic grant amount specified in the provider's funding agreement for designated courses of study - that specified amount; or
(ii)
if there is no maximum basic grant amount specified in the provider's funding agreement for designated courses of study - the amount worked out under subsection (4).
33-5(4)
For the purposes of subparagraph (3)(b)(ii), the amount is the sum of the amounts worked out, for each *funding cluster to which the Minister has allocated places to the provider under section 30-10, by multiplying:
(a)
the *number of Commonwealth supported places allocated to that funding cluster; by
(b)
the *Commonwealth contribution amount for a place in that funding cluster.
Table A providers - amount for non-designated courses of study
33-5(5)
For the purposes of paragraph (2)(b) and subject to subsection (6), the amount for *non-designated courses of study is the lesser of:
(a)
the sum of the amounts worked out, for each *funding cluster in which the provider has provided places in non designated courses of study, by multiplying:
(i)
the *number of Commonwealth supported places provided by the provider in non-designated courses of study in that funding cluster; by
(ii)
the *Commonwealth contribution amount for a place in that funding cluster; and
(b)
the *maximum basic grant amount specified in the provider's funding agreement in relation to non-designated courses of study.
33-5(6)
If a *maximum basic grant amount is not specified in the provider's funding agreement in relation to *non-designated courses of study, the amount for non designated courses of study is the amount worked out under paragraph (5)(a).
Basic grant amounts for non-Table A providers
33-5(7)
For a provider that is not a *Table A provider, the *basic grant amount for a year is the lesser of:
(a)
the sum of the amounts worked out, for each *funding cluster in which the provider has provided places, by multiplying:
(i)
the *number of Commonwealth supported places provided by the provider in that funding cluster; by
(ii)
the *Commonwealth contribution amount for a place in that funding cluster; and
(b)
either:
(i)
if there is a *maximum basic grant amount specified in the provider's funding agreement - that specified amount; or
(ii)
if there is no maximum basic grant amount specified in the provider's funding agreement - the amount worked out under subsection (8).
33-5(8)
For the purposes of subparagraph (7)(b)(ii), the amount is the sum of the amounts worked out, for each *funding cluster to which the Minister has allocated places to the provider under section 30-10, by multiplying:
(a)
the *number of Commonwealth supported places allocated to that funding cluster; by
(b)
the *Commonwealth contribution amount for a place in that funding cluster.
S 33-5 substituted by No 104 of 2011, s 3 and Sch 1 item 14, applicable in relation to the year commencing on 1 January 2012 or a later year. 33-5 formerly read:
SECTION 33-5 Basic grant amounts
33-5
The
basic grant amount
for a higher education provider for a year is the sum of:
(a)
for each *funding cluster to which the Minister has allocated places to the provider under section 30-10 - the amount worked out by multiplying:
(i)
the *number of Commonwealth supported places allocated in relation to that funding cluster; by
(ii)
the *Commonwealth contribution amount for a place in that funding cluster; and
(b)
if the allocation has specified under paragraph 30-10(3)(a) a number of Commonwealth supported places that have a regional loading - the amount of regional loading worked out under the Commonwealth Grant Scheme Guidelines for those places; and
(c)
if the allocation has specified under paragraph 30-10(3)(b) a number of Commonwealth supported places that have a medical student loading - the amount of medical student loading worked out under the Commonwealth Grant Scheme Guidelines for those places; and
(d)
if the allocation has specified under paragraph 30-10(3)(c) a number of Commonwealth supported places that have an enabling loading - the amount of enabling loading worked out under the Commonwealth Grant Scheme Guidelines for those places; and
(e)
if the allocation has specified under paragraph 30-10(3)(d) a number of Commonwealth supported places that have a transitional loading - the amount of transitional loading worked out under the Commonwealth Grant Scheme Guidelines for those places.
S 33-5 amended by No 43 of 2008, s 3 and Sch 2 item 5, by inserting para (e) at the end, applicable in respect of the year 2009 or a later year.
SECTION 33-10
Commonwealth contribution amounts and grandfathered Commonwealth contribution amounts
33-10(1)
The
Commonwealth contribution amount
for a place in a *funding cluster is the amount specified in the following table in relation to a place in the funding cluster.
Commonwealth contribution amounts
|
Item
|
For a place in this funding cluster:
|
The amount is:
|
1 |
Law, Accounting, Administration, Economics, Commerce, Communications, Society and Culture |
$1,100 |
2 |
Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology, Professional Pathway Social Work |
$13,250 |
3 |
Nursing, Indigenous and Foreign Languages, Engineering, Surveying, Environmental Studies, Science |
$16,250 |
4 |
Agriculture, Medicine, Dentistry, Veterinary Science, Pathology |
$27,000 |
Note:
Commonwealth contribution amounts are indexed under Part 5-6.
History
S 33-10(1) amended by No 55 of 2021, s 3 and Sch 1 item 26, by substituting "Indigenous and Foreign Languages" for "Foreign Languages" in table item 3, effective 25 June 2021 and applicable in relation to the following: (a) funding agreements entered into under Part 2-2 of that Act in respect of 2021 and later calendar years; (b) grants payable under Part 2-2 of that Act for 2021 and later calendar years.
33-10(2)
The
grandfathered Commonwealth contribution
amount for a place in a *grandfathered funding cluster part is the amount specified in the following table in relation to a place in the grandfathered funding cluster part.
Grandfathered Commonwealth contribution amounts
|
Item
|
For a place in this grandfathered funding cluster part:
|
The amount is:
|
1 |
Law, Accounting, Administration, Economics or Commerce |
$2,237 |
2 |
Communications |
$13,547 |
3 |
The Social Studies or Behavioural Science subpart of the Society and Culture part of the first funding cluster |
$11,015 |
4 |
Any other subpart of the Society and Culture part of the first funding cluster |
$6,226 |
5 |
Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment or Computing |
$13,250 |
6 |
Visual and Performing Arts |
$13,547 |
7 |
Professional Pathway Psychology or Professional Pathway Social Work |
$11,015 |
Note:
Grandfathered Commonwealth contribution amounts are indexed under Part 5-6.
History
S 33-10 substituted by No 93 of 2020, s 3 and Sch 1 item 14, effective 28 October 2020. For application provisions, see note under s 30-12. S 33-10 formerly read:
SECTION 33-10 Commonwealth contribution amounts
33-10
The
Commonwealth contribution amount
, for a place in a *funding cluster, is:
Commonwealth contribution amount
|
Item
|
Funding cluster
|
Commonwealth
contribution amount
|
1 |
Law, Accounting, Administration, Economics, Commerce |
$1,765 |
2 |
Humanities |
$4,901 |
3 |
Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health |
$8,670 |
4 |
Education |
$9,020 |
5 |
Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts |
$10,662 |
6 |
Nursing |
$11,903 |
7 |
Engineering, Science, Surveying |
$15,156 |
8 |
Dentistry, Medicine, Veterinary Science, Agriculture |
$19,235 |
Note:
Commonwealth contribution amounts are indexed under Part 5-6.
S 33-10 amended by No 86 of 2009, s 3 and Sch 2 item 2, by substituting the table, effective 1 January 2010. No 86 of 2009, s 3 and Sch 2 items 3 and 4 contain the following transitional provisions:
3 Transitional provision - indexation
3
Amounts in the table in section 33-10 of the Higher Education Support Act 2003, as amended, are not to be indexed on 1 January 2010.
4 Transitional provision
4
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2010 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made.
The table formerly read:
Commonwealth contribution amount
|
Item
|
Funding cluster
|
Commonwealth
contribution amount
|
1 |
Law, Accounting, Administration, Economics, Commerce |
$1,674 |
2 |
Humanities |
$4,647 |
3 |
Mathematics, Statistics, Behavioural Science, Social Studies, Education, Computing, Built Environment, Other Health |
$8,217 |
4 |
Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts |
$10,106 |
5 |
Nursing |
$11,280 |
6 |
Engineering, Science, Surveying |
$14,363 |
7 |
Dentistry, Medicine, Veterinary Science, Agriculture |
$18,227 |
S 33-10 (table) substituted by No 119 of 2007, s 3 and Sch 2 item 2, effective 1 January 2008. The table formerly read:
Commonwealth contribution amount
|
Item
|
Funding cluster
|
Commonwealth
contribution amount
|
1 |
Law |
$1,442 |
2 |
Accounting, Administration, Economics, Commerce |
$2,371 |
3 |
Humanities |
$3,995 |
4 |
Mathematics, Statistics |
$4,718 |
5 |
Behavioural Science, Social Studies |
$6,342 |
6 |
Computing, Built Environment, Health |
$7,064 |
7 |
Foreign Languages, Visual and Performing Arts |
$8,687 |
8 |
Engineering, Science, Surveying |
$11,757 |
9 |
Dentistry, Medicine, Veterinary Science |
$14,738 |
10 |
Agriculture |
$15,667 |
11 |
Education |
$6,970 |
12 |
Nursing |
$10,189 |
No 119 of 2007, s 3 and Sch 2 items 3 and 4 contain the following transitional provisions:
Transitional provision - indexation
3
Amounts in the table in section 33-10 of the Higher Education Support Act 2003, as amended by this Schedule, are not to be indexed on 1 January 2008.
Transitional provision - adjustment of basic grant amount
4
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier grant year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendment made by item 2 of this Schedule.
S 33-10 amended by No 121 of 2006, s 3 and Sch 1 item 3, by substituting table item 12, effective 1 January 2007. No 121 of 2006, s 3 and Sch 1 items 4 and 5 contain the following transitional provisions:
Transitional provision - indexation
4
The amount in item 12 of the table in section 33-10 of the Higher Education Support Act 2003, as amended by this Schedule, is not to be indexed on 1 January 2007.
Transitional provision - adjustment of basic grant amount
5
For the purposes of working out if and how a higher education provider's basic grant amount for the grant year 2007 or an earlier grant year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendment made by item 3 of this Schedule.
Table item 12 formerly read:
10 ... Nursing ... $9,316
SECTION 33-15
33-15
Increases in assistance for higher education providers meeting certain requirements
(Repealed by No 119 of 2007)
History
S 33-17 substituted for s 33-15 by No 119 of 2007, s 3 and Sch 2, item 5, applicable in relation to basic grant amounts for 2008 and later years. S 33-15 formerly read:
SECTION 33-15 Increases in assistance for higher education providers meeting certain requirements
33-15(1)
A higher education provider's *basic grant amount for a year is increased under this section if:
(a)
the Commonwealth Grant Scheme Guidelines impose on higher education providers requirements to be known as the National Governance Protocols; and
(b)
the Commonwealth Grant Scheme Guidelines impose on higher education providers requirements to be known as the Higher Education Workplace Relations Requirements; and
(c)
the Minister is satisfied that the provider met the requirements in paragraphs (a) and (b) as at the dates that are specified in the Commonwealth Grant Scheme Guidelines in relation to each of those requirements, in the year preceding that year.
33-15(2)
If subsection (1) applies to a higher education provider in relation to a year, the provider's *basic grant amount for the year is worked out as if the *Commonwealth contribution amount for each *funding cluster were increased by:
(a)
if the grant year is the year 2005 - 2.5%; and
(b)
if the grant year is the year 2006 - 5%; and
(c)
if the grant year is a later year - 7.5%.
SECTION 33-17
33-17
Reductions in assistance for higher education providers failing to meet certain requirements
(Repealed by No 89 of 2008)
History
S 33-17 repealed by No 89 of 2008, s 3 and Sch 1 item 6, effective 20 September 2008. Act No 89 of 2008, s 3 and Sch 1 item 7 states that the repeal has no effect in relation to a higher education provider's basic grant amount for the grant year 2008. S 33-17 formerly read:
SECTION 33-17 Reductions in assistance for higher education providers failing to meet certain requirements
33-17(1)
A higher education provider's *basic grant amount for a year is reduced if:
(a)
the Commonwealth Grant Scheme Guidelines impose on higher education providers requirements to be known as the National Governance Protocols; and
(b)
the Commonwealth Grant Scheme Guidelines impose on higher education providers requirements to be known as the Higher Education Workplace Relations Requirements; and
(c)
the Minister is satisfied that the provider does not meet the requirements in paragraphs (a) and (b) as at the dates that are specified in the Commonwealth Grant Scheme Guidelines in relation to each of those requirements, in the year preceding the year.
33-17(2)
The reduction under subsection (1) is an amount equal to the amount that would have been the increase under repealed section 33-15 if:
(a)
the provider had been entitled to an increase of 7.5% under that section as in force immediately before the commencement of Part 1 of Schedule 2 to the Higher Education Legislation Amendment (2007 Budget Measures) Act 2007; and
(b)
the *funding clusters were the funding clusters that existed immediately before the commencement of Part 1 of Schedule 2 to the Higher Education Legislation Amendment (2007 Budget Measures) Act 2007; and
(c)
the *Commonwealth contribution amount for each of those funding clusters was the amount that would have been the Commonwealth contribution amount for the funding cluster for the year if the amounts in the table in section 33-10 had not been amended by the Higher Education Legislation Amendment (2007 Budget Measures) Act 2007 or any later Act.
History
S 33-17 substituted for s 33-15 by No 119 of 2007, s 3 and Sch 2, item 5, applicable in relation to basic grant amounts for 2008 and later years. S 33-15 formerly read:
SECTION 33-15 Increases in assistance for higher education providers meeting certain requirements
33-15(1)
A higher education provider's *basic grant amount for a year is increased under this section if:
(a)
the Commonwealth Grant Scheme Guidelines impose on higher education providers requirements to be known as the National Governance Protocols; and
(b)
the Commonwealth Grant Scheme Guidelines impose on higher education providers requirements to be known as the Higher Education Workplace Relations Requirements; and
(c)
the Minister is satisfied that the provider met the requirements in paragraphs (a) and (b) as at the dates that are specified in the Commonwealth Grant Scheme Guidelines in relation to each of those requirements, in the year preceding that year.
33-15(2)
If subsection (1) applies to a higher education provider in relation to a year, the provider's *basic grant amount for the year is worked out as if the *Commonwealth contribution amount for each *funding cluster were increased by:
(a)
if the grant year is the year 2005 - 2.5%; and
(b)
if the grant year is the year 2006 - 5%; and
(c)
if the grant year is a later year - 7.5%.
SECTION 33-20
33-20
Adjustments in accordance with guidelines
(Repealed by No 119 of 2007)
History
S 33-20 repealed by No 119 of 2007, s 3 and Sch 4 item 2, effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
S 33-20 formerly read:
SECTION 33-20 Adjustments in accordance with guidelines
33-20(1)
A higher education provider's *basic grant amount for a year (the
grant year
) is to be adjusted, in respect of the preceding year, in the circumstances specified in the Commonwealth Grant Scheme Guidelines.
33-20(2)
The Commonwealth Grant Scheme Guidelines must specify, in relation to each of the adjustments:
(a)
whether the adjustment is to be an increase or a reduction in the provider's *basic grant amount for the grant year; and
(b)
the amount of the adjustment, or how the adjustment is to be worked out.
Note:
A higher education provider's basic grant amount for the grant year can also be adjusted in respect of the grant year under section 33-37.
SECTION 33-25
33-25
Adjustments
(Repealed by No 104 of 2011)
History
S 33-25 repealed by No 104 of 2011, s 3 and Sch 1 item 16, applicable in relation to the year commencing on 1 January 2012 or a later year. For transitional provisions see note under s 33-1(1).
S 33-25 formerly read:
SECTION 33-25 Adjustments
Corrected basic amount is less than the basic grant amount (Table A and B providers)
33-25(1)
The *basic grant amount for a *Table A provider or a *Table B provider for a year is reduced by an adjustment if the provider's *corrected basic amount for the preceding year was less than 99% of the provider's basic grant amount for that year.
History
S 33-25(1) substituted by No 119 of 2007, s 3 and Sch 4 item 3, effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
S 33-25(1) formerly read:
Number of places provided exceeds allocated places by 5% or higher agreed percentage
33-25(1)
A higher education provider's *basic grant amount for the grant year is reduced by an adjustment if:
(a)
the Commonwealth Grant Scheme Guidelines neither:
(i)
provide for an adjustment when the *number of Commonwealth supported places provided by a higher education provider during the preceding year exceeds a number specified in, or worked out under, those guidelines; nor
(ii)
provide that there is to be no adjustment in those circumstances; and
(b)
in the preceding year, the number of Commonwealth supported places provided by the provider exceeds:
(i)
105% of the total number of Commonwealth supported places allocated to the provider for that year under section 30-10; or
(ii)
the percentage of that total number that is the percentage specified for the purpose in the funding agreement entered into with the provider in respect of that year;
whichever is higher.
33-25(2)
The adjustment under subsection (1) is the lower of the following amounts:
(a)
an amount equal to the difference between:
(i)
99% of the basic grant amount; and
(ii)
the *corrected basic amount;
(b)
4% of the basic grant amount.
History
S 33-25(2) substituted by No 119 of 2007, s 3 and Sch 4 item 3, effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
S 33-25(2) formerly read:
33-25(2)
The adjustment under subsection (1) is an amount worked out using the formula:
|
Excess places |
× |
Student contributions
Places provided |
|
where:
excess places
is the *number of Commonwealth supported places that the provider provided during the preceding year in excess of:
(a)
105% of the total number of Commonwealth supported places allocated to the provider for that year under section 30-10; or
(b)
the percentage of that total number that is the percentage specified for the purpose in the funding agreement entered into with the provider in respect of that year;
whichever is higher.
places provided
is the *number of Commonwealth supported places that the provider provided during the preceding year.
student contributions
is the sum of all of the students' *student contribution amounts that the provider has received, or is entitled to receive, for all of the units of study undertaken with the provider during the preceding year.
Corrected basic amount is less than the basic grant amount (non-Table A and B providers)
33-25(3)
The *basic grant amount for a higher education provider that is not a *Table A provider or a *Table B provider is reduced by an adjustment if the provider's *corrected basic amount for the preceding year was less than the provider's basic grant amount for that year.
History
S 33-25(3) substituted by No 119 of 2007, s 3 and Sch 4 item 3, effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
S 33-25(3) formerly read:
Corrected basic amount is less than the basic grant amount
33-25(3)
A higher education provider's *basic grant amount for the grant year is reduced by an adjustment if:
(a)
the Commonwealth Grant Scheme Guidelines neither:
(i)
provide for an adjustment when the provider's *corrected basic amount for the preceding year is less than the provider's basic grant amount for that year; nor
(ii)
provide that there is to be no adjustment in these circumstances; and
(b)
the provider's corrected basic amount for the preceding year was less than 99% of the provider's basic grant amount for that year.
33-25(4)
The adjustment under subsection (3) is an amount equal to the difference between:
(a)
the basic grant amount; and
(b)
the *corrected basic amount.
History
S 33-25(4) substituted by No 119 of 2007, s 3 and Sch 4 item 3, effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
S 33-25(4) formerly read:
33-25(4)
The adjustment under subsection (3) is an amount equal to the difference between:
(a)
99% of the *basic grant amount; and
(b)
the *corrected basic amount.
Meaning of corrected basic amount
33-25(5)
The provider's
corrected basic amount
for a year is what would have been the provider's *basic grant amount for the year if:
(a)
the *number of Commonwealth supported places allocated to the provider for that year under section 30-10 had equalled the number of Commonwealth supported places provided by the provider during that year; and
(b)
the places allocated had been distributed under subsection 30-10(2) between the *funding clusters in a way that reflected:
(i)
the units of study in which *Commonwealth supported students were enrolled with the provider during that year; and
(ii)
the funding clusters in which those units are included.
33-25(5A)
(Repealed by No 119 of 2007)
History
S 33-25(6) and (7) substituted for s 33-25(5A), (5B) and (6) by No 119 of 2007, s 3 and Sch 4 item 4, effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
S 33-25(5A) formerly read:
Corrected basic amount exceeds the basic grant amount
33-25(5A)
A higher education provider's *basic grant amount for the grant year is increased by an adjustment if:
(a)
the Commonwealth Grant Scheme Guidelines neither:
(i)
provide for an adjustment when the provider's *corrected basic amount for the preceding year exceeds the provider's basic grant amount for that year; nor
(ii)
provide that there is to be no adjustment in these circumstances; and
(b)
the provider's corrected basic amount for the preceding year exceeded the provider's basic grant amount for that year; and
(c)
the Minister determines that the provider's basic grant amount for that year should be increased by an adjustment under this subsection.
33-25(5B)
(Repealed by No 119 of 2007)
History
S 33-25(6) and (7) substituted for s 33-25(5A), (5B) and (6) by No 119 of 2007, s 3 and Sch 4 item 4, effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
S 33-25(5B) formerly read:
33-25(5B)
The adjustment under subsection (5A) is an amount equal to the lesser of the following:
(a)
1% of the *basic grant amount;
(b)
the difference between the *corrected basic amount and the basic grant amount.
Corrected basic amount is more than the basic grant amount (Table A and B providers)
33-25(6)
The *basic grant amount for a year for a *Table A provider or a *Table B provider is increased by an adjustment if the provider's *corrected basic amount for the preceding year was more than the provider's basic grant amount for the year.
History
S 33-25(6) and (7) substituted for s 33-25(5A), (5B) and (6) by No 119 of 2007, s 3 and Sch 4 item 4, effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
S 33-25(6) formerly read:
No adjustment for 2005
33-25(6)
No adjustments are to be made under this section to *basic grant amounts for the year 2005.
33-25(7)
The adjustment under subsection (6) is the lower of the following amounts:
(a)
an amount equal to the difference between:
(i)
the *corrected basic amount; and
(ii)
the *basic grant amount;
(b)
10% of the basic grant amount.
History
S 33-25(7) amended by No 86 of 2009, s 3 and Sch 3 item 1, by substituting "10%" for "5%" in para (b), applicable to adjustments of basic grant amounts for 2011 and later years.
S 33-25(6) and (7) substituted for s 33-25(5A), (5B) and (6) by No 119 of 2007, s 3 and Sch 4 item 4, effective 1 January 2008. No 119 of 2007, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional provision
5
For the purposes of working out if and how a higher education provider's basic grant amount for the year 2008 or an earlier year is to be adjusted under Subdivision 33-C of the Higher Education Support Act 2003, disregard the amendments made by this Schedule.
SECTION 33-30
Working out the number of Commonwealth supported places provided
33-30(1)
The
number of Commonwealth supported places
that a higher education provider has provided in respect of *non-grandfathered students during a particular year is a number equal to the number worked out as follows:
Method statement
Step 1.
For each unit of study (other than any unit that is an *ineligible work experience unit for a *non-grandfathered student) that the provider provided that had its *census date during the year, multiply:
(a) the *EFTSL value of the unit; by
(b) the number of non-grandfathered students enrolled with the provider in that unit as *Commonwealth supported students.
Step 2.
Add together all of the amounts worked out under step 1.
History
S 33-30(1) amended by No 93 of 2020, s 3 and Sch 1 items 15-17, by inserting "in respect of *non-grandfathered students", substituting "any unit that is an *ineligible work experience unit for a *non-grandfathered student" for "a unit of study that wholly consists of *work experience in industry" in method statement, step 1 and "non-grandfathered students" for "persons" in method statement, step 1 para (b), effective 28 October 2020. For application provisions, see note under s 30-12.
33-30(1A)
The
number of Commonwealth supported places
that a higher education provider has provided in respect of *grandfathered students during a particular year is a number equal to the number worked out as follows:
Method statement
Step 1.
For each unit of study (other than any unit that is an *ineligible work experience unit for a *grandfathered student) that the provider provided that had its *census date during the year, multiply:
(a) the *EFTSL value of the unit; by
(b) the number of grandfathered students enrolled with the provider in that unit as *Commonwealth supported students.
Step 2.
Add together all of the amounts worked out under step 1.
History
S 33-30(1A) inserted by No 93 of 2020, s 3 and Sch 1 item 18, effective 28 October 2020. For application provisions, see note under s 30-12.
33-30(2)
For the purposes of this section, if:
(a)
a unit of study provided by the provider forms part of more than one *course of study; and
(b)
the provider determines under subsection
169-28(2) an *EFTSL value of the unit for each such course;
the unit is taken to be a different unit of study in respect of each such course.
History
S 33-30(2) amended by No 104 of 2011, s 3 and Sch 2 item 7, by substituting "169-28(2)" for "73-15(2)" in para (b), 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.
33-30(3)
To work out the *number of Commonwealth supported places that a higher education provider has provided as mentioned in an item of column 1 of the following table, apply the method statement in subsection (1) or (1A) (as the case requires) to the units of study mentioned in column 2 of that item.
Working out the number of Commonwealth supported places provided
|
Item
|
Column 1
To work out the number of Commonwealth supported places provided in …
|
Column 2
apply the method statement in subsection (1) or (1A) (as the case requires) to …
|
1 |
a *funding cluster or a *grandfathered funding cluster part |
units provided by the provider in the funding cluster or the grandfathered funding cluster part. |
2 |
*higher education courses in a *funding cluster or a *grandfathered funding cluster part |
units provided by the provider in the funding cluster, or the grandfathered funding cluster part, in those courses. |
3 |
*designated higher education courses in a *funding cluster |
units provided by the provider in the funding cluster in those courses. |
4 |
demand driven higher education courses in a *funding cluster or a *grandfathered funding cluster part |
units provided by the provider in the funding cluster, or the grandfathered funding cluster part, in those courses. |
History
S 33-30(3) amended by No 93 of 2020, s 3 and Sch 1 items 19 and 20, by inserting "or (1A) (as the case requires)" and substituting the table, effective 28 October 2020. For application provisions, see note under s 30-12. The table formerly read:
Item
|
Column 1
|
Column 2
|
|
To work out the number of Commonwealth supported places provided in …
|
apply the method statement in subsection (1) to …
|
1 |
a *funding cluster |
units provided by the provider in the funding cluster. |
2 |
*designated courses of study in a funding cluster |
units provided by the provider in the funding cluster in designated courses of study. |
3 |
*non-designated courses of study in a funding cluster |
units provided by the provider in the funding cluster in non-designated courses of study. |
S 33-30(3) inserted by No 104 of 2011, s 3 and Sch 1 item 17, applicable in relation to the year commencing on 1 January 2012 or a later year.
SECTION 33-35
33-35
Funding clusters, or parts of funding clusters, in which units are included
The Commonwealth Grant Scheme Guidelines may specify:
(a)
how to determine, for the purposes of this Act, the *funding cluster, or the part of a funding cluster, in which units of study are included; or
(b)
the particular funding cluster, or the particular part of a particular funding cluster, in which a particular unit is included for the purposes of this Act.
History
S 33-35 substituted by No 93 of 2020, s 3 and Sch 2 item 1, effective 28 October 2020. S 33-35 formerly read:
SECTION 33-35 Funding clusters in which units of study are included
33-35
The Commonwealth Grant Scheme Guidelines may specify:
(a)
how to determine, for the purposes of this Act, the *funding clusters in which units of study are included; or
(b)
the particular funding cluster in which a particular unit of study is included for the purposes of this Act.
Subdivision 33-C - Adjustments
History
Subdiv 33-C heading relocated by No 104 of 2011, s 3 and Sch 1 items 15 and 18, applicable in relation to the year commencing on 1 January 2012 or a later year. For transitional provisions see note under 33-1(1).
SECTION 33-37
Adjustments for breach of section 19-37
33-37(1)
A higher education provider's *total basic grant amount for a year is reduced by an adjustment in respect of the year if, on one or more occasions during the year, the provider breaches a condition imposed under section
19-37.
History
S 33-37(1) amended by No 93 of 2020, s 3 and Sch 1 item 21 and 22, by substituting "*total basic grant amount for a year" for "*basic grant amount for the grant year" and omitting "grant" before "year" (second and third occurring), effective 28 October 2020. For application provisions, see note under s 30-12.
33-37(2)
The adjustment under subsection (1) is an amount worked out using the formula:
Reduction amount × Total places provided |
where:
reduction amount
is $100.
Note:
The reduction amount is indexed under Part 5-6.
total places allocated
(Repealed by No 104 of 2011)
History
Definition of "total places allocated" repealed by No 104 of 2011, s 3 and Sch 1 item 20, applicable in relation to the year commencing on 1 January 2012 or a later year. The definition formerly read:
total places allocated
is the total number of Commonwealth supported places allocated under section 30-10 to the higher education provider for the grant year.
total places provided
is the sum of the following:
(a)
the *number of Commonwealth supported places that the higher education provider has provided in respect of *non-grandfathered students for the year;
(b)
the number of Commonwealth supported places that the higher education provider has provided in respect of *grandfathered students for the year.
History
Definition of "total places provided" substituted by No 93 of 2020, s 3 and Sch 1 item 23, effective 28 October 2020. For application provisions, see note under s 30-12. The definition formerly read:
total places provided
is the total *number of Commonwealth supported places provided by the higher education provider for the grant year.
Definition of "total places provided" inserted by No 104 of 2011, s 3 and Sch 1 item 21, applicable in relation to the year commencing on 1 January 2012 or a later year.
History
S 33-37(2) amended by No 104 of 2011, s 3 and Sch 1 item 19, by substituting the formula, applicable in relation to the year commencing on 1 January 2012 or a later year. The formula formerly read:
Reduction amount × Total places allocated
33-37(3)
This section does not apply in relation to a breach of a condition imposed under section
19-37 by a higher education provider if:
(a)
the breach consists of requiring a person to pay money to the provider or another entity; and
(b)
as a result of the requirement, the person paid money to the provider or other entity; and
(c)
the Minister has given a written notice to the provider under subsection (4); and
(d)
the provider or other entity repays the money to the person within 28 days after the Minister gave the notice to the provider.
33-37(4)
If the Minister becomes aware that:
(a)
a higher education provider has breached a condition imposed under section
19-37; and
(b)
the breach consists of requiring a person to pay money to the provider or another entity;
the Minister must give to the provider a written notice:
(c)
requiring repayment, within 28 days after the notice is given, of any money paid to the provider or any other entity as a result of the requirement; and
(d)
stating that failure to repay any such money within that period will result in a reduction under this section of the provider's *total basic grant amount for the year in question.
The notice may relate to more than one breach.
History
S 33-37(4) amended by No 93 of 2020, s 3 and Sch 1 item 24, by substituting "*total basic grant amount for the year" for "*basic grant amount for the grant year" in para (d), effective 28 October 2020. For application provisions, see note under s 30-12.
33-37(5)
A failure by the Minister to give a notice under subsection (4) in relation to a breach of a condition imposed under section
19-37 does not prevent this section from applying in relation to the breach.
33-37(6)
This section does not apply more than once in relation to a higher education provider's *total basic grant amount for a year.
History
S 33-37(6) amended by No 93 of 2020, s 3 and Sch 1 item 25, by substituting "*total basic grant amount for a year" for "*basic grant amount for a grant year", effective 28 October 2020. For application provisions, see note under s 30-12.
Subdivision 33-D - Special purpose advances
SECTION 33-40
Advances for certain purposes
33-40(1)
The Minister may, if an amount has been specified under subsection (3A), determine that an advance is payable to a higher education provider, in respect of a year, in relation to expenditure of the provider for such purposes as the Minister determines.
History
S 33-40(1) amended by No 104 of 2011, s 3 and Sch 1 item 22, by substituting "may, if an amount has been specified under subsection (3A), determine" for "may determine", applicable in relation to the year commencing on 1 January 2012 or a later year.
33-40(2)
The Minister may pay an advance to the provider under subsection (1) on such conditions (if any) as the Minister determines.
33-40(3)
The total of the advances in respect of a year must not exceed the amount specified by the Minister under subsection (3A).
History
S 33-40(3) amended by No 104 of 2011, s 3 and Sch 1 item 23, by substituting "specified by the Minister under subsection (3A)" for "set out in section 30-5 in respect of the following year", applicable in relation to the year commencing on 1 January 2012 or a later year.
33-40(3A)
The Minister may, by legislative instrument, specify an amount for the purposes of subsection (3).
History
S 33-40(3A) inserted by No 104 of 2011, s 3 and Sch 1 item 24, applicable in relation to the year commencing on 1 January 2012 or a later year.
33-40(4)
If the Minister determines an advance for the provider in respect of a year, the amounts of grant payable to the provider under section
33-1 in respect of:
(a)
the year next following that year; or
(b)
the 2 years next following that year; or
(c)
the 3 years next following that year;
are reduced by amounts that equal in total the amount of the advance.
33-40(5)
Determinations under subsections (1) and (2), and reductions under subsection (4), must be made in accordance with Commonwealth Grant Scheme Guidelines.
Division 36 - What are the conditions of receiving a grant?
Subdivision 36-A - General
SECTION 36-1
Condition of grant to comply with this Division
36-1(1)
A
higher education provider receives a grant under this Part on condition that
the provider complies with this Division.
36-1(2)
Without
limiting subsection (1), the following provisions of this Division do not
of their own force require the provider to do any act or thing.
Subdivision 36-B - Conditions relating to Commonwealth supported students
SECTION 36-5
Meaning of
Commonwealth supported student
36-5(1)
A person is a
Commonwealth supported student
, in relation to a unit of study, if:
(a)
the higher education provider with which he or she is enrolled in that unit has advised the person in writing that he or she is a Commonwealth supported student:
(i)
in relation to the unit; or
(ii)
if the person is undertaking a *course of study with the provider of which the unit forms a part - in relation to that course of study; and
(b)
at the end of the *census date for the unit, the higher education provider would not have been prohibited under this Subdivision from so advising the person.
History
S 36-5(1) amended by No 93 of 2020, s 3 and Sch 4 item 10, by substituting "under this Subdivision" for ", under section 36-10 or 36-15, or both," in para (b), 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).
36-5(3)
However, the person is not a Commonwealth supported student in relation to the unit if he or she notifies an *appropriate officer of the provider that he or she does not wish to be a Commonwealth supported student in relation to the unit.
36-5(4)
A notice under subsection (3):
(a)
must be in writing; and
(b)
must be given on or before the *census date for the unit.
36-5(5)
In addition, the person is not a *Commonwealth supported student in relation to the unit of study if the *Secretary determines that the person is not a genuine student in relation to the unit.
History
S 36-5(5) inserted by No 93 of 2020, s 3 and Sch 4 item 11, 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).
36-5(6)
In determining whether a person is a genuine student for the purposes of subsection (5), the *Secretary must have regard to the matters (if any) specified in the Higher Education Provider Guidelines.
History
S 36-5(6) inserted by No 93 of 2020, s 3 and Sch 4 item 11, 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).
36-5(7)
If a determination under subsection (5) is made in writing, the determination is not a legislative instrument.
History
S 36-5(7) inserted by No 93 of 2020, s 3 and Sch 4 item 11, 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).
SECTION 36-10
Advice on whether a person is a Commonwealth supported student - general
When a provider must not advise that a person is Commonwealth supported
36-10(1)
A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study unless:
(a)
the provider has entered into a funding agreement under section
30-25 for the year in which the person is undertaking the unit; and
(b)
the unit contributes to the requirements of a *course of study in which the person is enrolled with that provider or another higher education provider; and
(ba)
the person has been assessed by the higher education provider, in accordance with section
19-42, as academically suited to undertake the unit; and
(c)
the person meets the citizenship or residency requirements for the purposes of this paragraph (see subsections
(2) and
(2A)); and
(d)
if the course of study is a course of study other than an *enabling course - the unit is *covered by the person's Student Learning Entitlement; and
(e)
the person:
(i)
enrolled in the unit on or before the *census date for the unit; and
(ii)
at the end of the census date, remained so enrolled; and
(f)
if:
(i)
the census date for the unit is on or after 1 January 2021 and before 1 January 2023 and the person commenced the course of study on or after 1 January 2021; or
(ii)
the census date for the unit is on or after 1 January 2023;
the person meets the *student identifier requirements for the purposes of this paragraph (see subsection
(2C))
History
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
When a person meets the citizenship or residency requirements
36-10(2)
A person meets the citizenship or residency requirements for the purposes of paragraph
(1)(c) if the person is:
(a)
an Australian citizen; or
(b)
a citizen of New Zealand who will be resident within Australia for the duration of the unit; or
(c)
a *permanent visa holder who will be resident within Australia for the duration of the unit.
History
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.
36-10(2A)
In determining, for the purposes of subparagraph
(2)(b) or
(c), 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.
History
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.
36-10(2B)
Despite subsections
(2) and
(2A), a person does not meet the citizenship or residency requirements under subsection
(2), if the higher education provider reasonably expects that he or she will not undertake in Australia any units of study contributing to the *course of study of which the unit forms a part.
History
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.
When a person meets the student identifier requirements
36-10(2C)
A person meets the *student identifier requirements for the purposes of paragraph
(1)(f) if:
(a)
the person has a student identifier immediately before the census date; and
(b)
before the census date, the person notifies the person's student identifier to:
(i)
an *appropriate officer of the higher education provider; and
(ii)
the *Secretary.
History
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).
36-10(2D)
A notification under paragraph
(2C)(b) may be included in a *request for Commonwealth assistance that the person has given to the higher education provider in relation to:
(a)
the unit of study for which the assistance is sought; or
(b)
the *course of study of which the unit forms a part; or
(c)
any other unit of study forming part of that course.
History
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).
Persons who do not wish to be Commonwealth supported
36-10(3)
A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study if the person has notified an *appropriate officer of the provider that he or she does not wish to be a Commonwealth supported student in relation to the unit.
36-10(4)
A notice under subsection
(3):
(a)
must be in writing; and
(b)
must be given on or before the *census date for the unit.
Additional requirement for non-Table A providers
36-10(5)
A higher education provider that is not a *Table A provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study unless:
(a)
the unit in which the person is enrolled is within a *national priority; and
(b)
the provider has received a grant under this Part for that national priority for the year in which the person is undertaking the unit; and
(c)
if the national priority is a *course of study that has been specified in the Commonwealth Grant Scheme Guidelines to be a national priority - the unit is contributing to the requirements of that course.
Additional requirement relating to work experience in industry
36-10(6)
A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study that wholly consists of *work experience in industry unless:
(a)
the unit forms part of a *course of study; and
(b)
the person is enrolled, or has previously been enrolled, in another unit of study in that course:
(i)
that does not, or did not, wholly consist of work experience in industry; and
(ii)
in relation to which the person is, or was, a Commonwealth supported student.
Units of study at full fee summer or winter schools
36-10(7)
A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study if:
(a)
the person undertakes the unit wholly during a summer school period (the
current summer school period
) or a winter school period (the
current winter school period
); and
(b)
the provider has determined that this subsection applies to the unit.
History
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.
36-10(8)
A higher education provider may determine that subsection
(7) applies to a unit of study only if each person who could undertake the unit during the current summer school period or current winter school period could undertake, or could have undertaken, the unit during a period other than a summer school period or winter school period as part of a *course of study undertaken by the person with the higher education provider.
History
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.
36-10(9)
The higher education provider must make the determination:
(a)
before the start of the current summer school period, if the determination relates to a unit undertaken during a summer school period; or
(b)
before the start of the current winter school period, if the determination relates to a unit undertaken during a winter school period.
History
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.
36-10(10)
In this section:
summer school period
means a period that starts on or after 1 November in a year and ends after 1 January, but before 1 March, in the following year.
winter school period
means a period that starts on or after 1 June in a year and ends on or before 31 August in that year.
History
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.
SECTION 36-12
Advice on whether a person is a Commonwealth supported student - unreasonable study load
36-12(1)
A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study (the
new unit
) if the sum of the following amounts is more than 2:
(a)
the *EFTSL value of the new unit;
(b)
the sum of the EFTSL values of each other unit of study:
(i)
that has a *census date during the 12 month period ending on the census date for the new unit; and
(ii)
for which the person is entitled to *HECS-HELP assistance or *FEE-HELP assistance, or would be so entitled but for the previous operation of this section, or section 104-1AA, in relation to the other unit of study.
36-12(2)
Subsection (1) does not apply if the higher education provider determines that undertaking the new unit will not impose an unreasonable study load on the person, having regard to:
(a)
whether the person has the demonstrated capacity and capability to successfully complete units of study that have a total EFTSL value of more than 2; and
(b)
the matters (if any) specified by the Higher Education Provider Guidelines for the purposes of this paragraph.
36-12(3)
A decision of a higher education provider under subsection (2) must be in accordance with the requirements (if any) specified in the Higher Education Provider Guidelines.
36-12(4)
If a determination under subsection (2) is made in writing, the determination is not a legislative instrument.
History
S 36-12 inserted by No 93 of 2020, s 3 and Sch 4 item 14, 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).
SECTION 36-13
36-13
Advice on whether a person is a Commonwealth supported student - failure to complete previous units
(Repealed by No 89 of 2023)
History
S 36-13 repealed by No 89 of 2023, s 3 and Sch 1 item 10, effective 1 January 2024. S 36-13 formerly read:
SECTION 36-13 Advice on whether a person is a Commonwealth supported student - failure to complete previous units
36-13(1)
A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study if:
(a)
in a case where the unit of study is part of a *course of study leading to a *higher education award that is a bachelor degree or higher qualification:
(i)
the student has already undertaken 8 or more other units of study with that provider as part of that course of study; and
(ii)
the student did not successfully complete at least 50% of those other units; or
(b)
in any other case:
(i)
the student has already undertaken 4 or more other units of study with that provider as part of a course of study; and
(ii)
the student did not successfully complete at least 50% of those other units.
36-13(2)
In determining, for the purposes of subparagraphs (1)(a)(ii) and (b)(ii), the number of units the student did not successfully complete, disregard any units:
(a)
not completed by the student; and
(b)
in respect of which the provider is satisfied that special circumstances apply in relation to the student (see subsection (3)).
36-13(3)
For the purposes of paragraph (2)(b), special circumstances apply in relation to the student in respect of a unit of study if, and only if, the higher education provider is satisfied that circumstances apply in relation 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.
36-13(4)
The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (3)(a) or (b).
36-13(5)
A higher education provider will be satisfied of the matter referred to in paragraph (3)(c) in relation to a unit of study if the provider is satisfied that any of the following circumstances apply in relation to a 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 Administration Guidelines for the purposes of this paragraph.
36-13(6)
Without limiting paragraph (5)(i), the Administration Guidelines may specify circumstances relating to a matter mentioned in subsection (5).
36-13(7)
If the Administration Guidelines specify circumstances for the purposes of subsection (4) or paragraph (5)(i), a decision of a higher education provider under this section must be in accordance with those guidelines.
36-13(8)
If a higher education provider is unable to act for the purposes of this section (other than subsection (1)), the *Secretary may act as if one or more references in this section (other than subsection (1)) to a higher education provider were a reference to the Secretary.
S 36-13 inserted by No 93 of 2020, s 3 and Sch 4 item 40, effective 1 January 2022 and applicable in relation to a unit of study if: (a) the unit of study is undertaken as part of a course of study; and (b) the student enrolled in the course of study on or after 1 January 2022; and (c) the unit of study has a census date that occurs on or after that day; and (d) the unit is provided by a higher education provider taken to be approved under section 16-5 of the Act, whether taken to be approved before, on or after that day.
SECTION 36-15
Persons not to be advised they are Commonwealth supported
36-15(1A)
A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study if:
(a)
the unit contributes to the requirements of a *course of study; and
(b)
the course of study is, or is to be, undertaken by the person primarily at an overseas campus.
History
S 36-15(1A) inserted by No 178 of 2011, s 3 and Sch 4 item 1, applicable in relation to units of study whose census dates are on or after 1 January 2012. No 178 of 2011, s 3 and Sch 4 item 9 contains the following transitional provisions:
9 Transitional provisions
Advice as to whether person is Commonwealth supported student
(1)
The amendment made by item 1 of this Schedule does not apply in relation to a unit of study (the
proposed unit of study
) that is, or is to be, undertaken by a person if:
(a)
the proposed unit of study contributes to the requirements of a course of study (the
current course of study
); and
(b)
the person started the current course of study before the commencement of this Schedule; and
(c)
before that commencement, the person was a Commonwealth supported student in relation to another unit of study that contributed to the requirements of the current course of study; and
(d)
the person would not have been a Commonwealth supported student in relation to that other unit of study if the amendment made by item 1 of this Schedule had applied in relation to that other unit of study and the person; and
(e)
the census date for the proposed unit of study is on or after the commencement of this Schedule.
HECS-HELP assistance
(2)
The amendments made by items 1, 2 and 3 of this Schedule do not apply in relation to a unit of study (the
proposed unit of study
) in which a student is enrolled with a higher education provider as part of a course of study (the
current course of study
) if:
(a)
the student started the current course of study before the commencement of this Schedule; and
(b)
before that commencement, the student was a Commonwealth supported student in relation to another unit of study that forms part of the current course of study; and
(c)
the student would not have been a Commonwealth supported student in relation to that other unit of study if the amendments made by items 1, 2 and 3 of this Schedule had applied in relation to that other unit of study and the student; and
(d)
the census date for the proposed unit of study is on or after the commencement of this Schedule.
FEE-HELP assistance
(3)
The amendments made by items 4 and 5 of this Schedule do not apply in relation to a unit of study (the
proposed unit of study
) that is, or is to be, undertaken by a student as part of a course of study (the
current course of study
) if:
(a)
the student started the current course of study before the commencement of this Schedule; and
(b)
before that commencement, the student received an amount of FEE-HELP assistance for another unit of study that forms part of the current course of study; and
(c)
the student would not have received an amount of FEE-HELP assistance for that other unit of study if the amendments made by items 4 and 5 of this Schedule had applied in relation to the unit of study and the student; and
(d)
the census date for the proposed unit of study is on or after the commencement of this Schedule.
VET FEE-HELP assistance
(4)
The amendments made by items 6 and 7 of this Schedule do not apply in relation to a VET unit of study (the
proposed VET unit of study
) that is, or is to be, undertaken by a student as part of a VET course of study (the
current VET course of study
) if:
(a)
the student started the current VET course of study before the commencement of this Schedule; and
(b)
before that commencement, the student received an amount of VET FEE-HELP assistance for another VET unit of study that forms part of the current VET course of study; and
(c)
the student would not have received an amount of VET FEE-HELP assistance for that other VET unit of study if the amendments made by items 6 and 7 of this Schedule had applied in relation to the VET unit of study and the student; and
the census date for the proposed VET unit of study is on or after the commencement of this Schedule.
36-15(1)
A higher education provider must not advise a person enrolled in a unit of study with the provider that the person is a *Commonwealth supported student in relation to the unit if:
(a)
the enrolment is in an *employer reserved place; or
(b)
the unit forms part of a *bridging course for overseas-trained professionals; or
(c)
the unit forms part of a course to which a determination under subsection (2) applies.
36-15(2)
The Minister may, by legislative instrument, determine that:
(a)
a specified *course of study is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as *Commonwealth supported students; or
(b)
a *course of study of a specified type is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as *Commonwealth supported students.
36-15(3)
In deciding whether to make a determination under subsection (2), the Minister must have regard to the effect of the determination on students undertaking the course, or a course of that type.
36-15(4)
A determination of the Minister under subsection (2) must not be made later than 6 months before the day that students are able next to commence the specified course, or a course of that type, with the provider.
36-15(5)
A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study if:
(a)
the provider has completed any part of a *request for Commonwealth assistance that the person is required to complete; and
(b)
the request relates to the person enrolling in the unit of study or, where the unit forms part of a *course of study undertaken with the provider, the course of study.
History
S 36-15(5) insertedby No 93 of 2020, s 3 and Sch 4 item 15, 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).
SECTION 36-20
Providers to repay amounts - special circumstances
36-20(1)
A higher education provider must, on the *Secretary's behalf, determine that this section applies to a person if:
(a)
the person has been enrolled as a *Commonwealth supported student with the provider in a unit of study; and
(b)
the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and
(c)
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
(d)
the provider is satisfied that special circumstances apply to the person (see section
36-21); and
(e)
the person applies in writing to that provider for either or both:
(i)
the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or
(ii)
the remission of the person's *HECS-HELP debt in relation to the unit; and
(f)
either:
(i)
the application is made before the end of the application period under section 36-22; or
(ii)
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.
Note 1:
A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(4).
Note 2:
A decision that this section does not apply to a person is reviewable under Part 5-7.
36-20(2)
If the provider determines that this section applies to a person, the provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
36-20(3)
Subsection
(2) does not apply to the provider if:
(a)
the person enrolled in the unit as a *replacement unit; or
(b)
it is determined that section
36-24A applies to the person; or
(c)
section
36-24BA applies in relation to the provider in relation to the unit.
History
S 36-20(3) amended by No 93 of 2020, s 3 and Sch 4B item 3, by inserting para (c), 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 36-20(3) amended by No 111 of 2019, s 3 and Sch 2 item 6, by substituting "unit as a *replacement unit" for "unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements" in para (a), effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
36-20(4)
The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to circumstances to which paragraph
(3)(a) applies:
(a)
the amount (if any) that is to be paid to the person; and
(b)
the amount (if any) that is to be paid to the Commonwealth; and
(c)
the person (if any) who is to pay the amounts.
History
S 36-20(4) amended by No 111 of 2019, s 3 and Sch 2 item 7, by substituting "the *tuition protection requirements" for "the *tuition assurance requirements", effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
36-20(5)
If a determination made under subsection
(1) is made in writing, the determination is not a legislative instrument.
History
S 36-20 substituted by No 104 of 2011, s 3 and Sch 2 item 9, 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. S 36-20 formerly read:
SECTION 36-20 Providers to repay amounts if Student Learning Entitlement is re-credited
36-20(1)
If a person's *Student Learning Entitlement, in relation to a unit of study in which the person was enrolled with a higher education provider as a *Commonwealth supported student, has been re-credited under Division 79, the provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
36-20(2)
Subsection (1) does not apply to the provider if:
(a)
the person's *Student Learning Entitlement was re-credited under section 79-1 (main case of re-crediting a person's SLE); and
(b)
the person enrolled in the unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements.
36-20(3)
The Higher Education Provider Guidelines may, in setting out the tuition assurance requirements, specify, in relation to the re-crediting of a person's *Student Learning Entitlement in circumstances to which subsection (2) applies:
(a)
the amount (if any) that is to be paid to the person; and
(b)
the amount (if any) that is to be paid to the Commonwealth; and
(c)
the person (if any) who is to pay the amounts.
SECTION 36-21
Special circumstances
36-21(1)
For the purposes of paragraph
36-20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:
(a)
are beyond the person's control; and
(b)
do not make their full impact on the person until on or after the *census date for the unit of study; and
(c)
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.
36-21(2)
The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.
Note 1:
Guidelines made for the purposes of this subsection also have effect for the purposes of subsections 97-30(2) and 104-30(2) (re-crediting a person's HELP balance).
History
S 36-21(2) amended by No 76 of 2018, s 3 and Sch 3 item 1, by substituting "subsections 97-30(2) and 104-30(2) (re-crediting a person's HELP balance)" for "subsection 104-30(2) (re-crediting a person's FEE-HELP balance)" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.]
History
S 36-21 inserted by No 104 of 2011, s 3 and Sch 2 item 19, 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.
SECTION 36-22
Application period
36-22(1)
For the purposes of subparagraph
36-20(1)(f)(i), if:
(a)
the person has withdrawn his or her enrolment in the unit of study; and
(b)
the higher education provider gives notice to the person that the withdrawal has taken effect;
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.
36-22(2)
If subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.
History
S 36-22 substituted by No 104 of 2011, s 3 and Sch 2 item 19, 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. S 36-22 formerly read:
SECTION 36-22 Providers to repay amounts etc. for units wholly consisting of work experience in industry - special circumstances
36-22(1)
A higher education provider must, on the *Secretary's behalf, determine that this section applies to a person if:
(a)
the person has been enrolled as a *Commonwealth supported student with the provider in a unit of study; and
(aa)
the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and
(b)
the unit wholly consists of *work experience in industry; and
(c)
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
(d)
the provider with which the person is enrolled in the unit is satisfied that special circumstances apply to the person (see subsection (3)); and
(e)
the person applies in writing to that provider for either or both:
(i)
the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or
(ii)
the remission of the person's *HECS-HELP debt in relation to the unit; and
(f)
either:
(i)
the application is made before the end of the application period under subsection (5) or (6); or
(ii)
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.
Note:
A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(5).
History
S 36-22(1) amended by No 72 of 2007, s 3 and Sch 8 item 3, 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 (aa), effective 28 May 2007.
36-22(2)
The provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
36-22(2A)
Subsection (2) does not apply to the provider if the person enrolled in the unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements.
36-22(2B)
The Higher Education Provider Guidelines may, in setting out the tuition assurance requirements, specify, in relation to circumstances to which subsection (2A) applies:
(a)
the amount (if any) that is to be paid to the person; and
(b)
the amount (if any) that is to be paid to the Commonwealth; and
(c)
the person (if any) who is to pay the amounts.
Special circumstances
36-22(3)
For the purposes of paragraph (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:
(a)
are beyond the person's control; and
(b)
do not make their full impact on the person until on or after the *census date for the unit; and
(c)
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.
Student Learning Entitlement Guidelines may specify circumstances
36-22(4)
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 (3) of this section must be in accordance with any such guidelines.
Note:
The matters referred to in paragraphs 79-5(1)(a), (b) and (c) (which relate to the re-crediting of Student Learning Entitlement) are identical to the matters referred to in paragraphs (3)(a), (b) and (c) of this section.
Application period where enrolment withdrawn
36-22(5)
If:
(a)
the person applying under paragraph (1)(e) has withdrawn his or her enrolment in the unit; and
(b)
the higher education provider gives notice to the person that the withdrawal has taken effect;
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.
Application period in other cases
36-22(6)
If subsection (5) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.
Dealing with applications
36-22(7)
If:
(a)
the application is made before the end of the application period under subsection (5) or (6); or
(b)
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;
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.
Statement of reasons
36-22(8)
The notice must include a statement of the reasons for the decision.
Note:
Refusals of applications are reviewable under Part 5-7.
Secretary may act if provider is unable to
36-22(9)
If the provider is unable to act for one or more of the purposes of subsection (1), or subsection (3), (5) or (7), the *Secretary may act as if one or more of the references in those subsections to the provider were a reference to the Secretary.
SECTION 36-22A
36-22A
Providers to repay amounts etc. for units wholly consisting of work experience in industry - provider ceases to provide course
(Repealed by No 104 of 2011)
History
S 36-22A repealed by No 104 of 2011, s 3 and Sch 2 item 19, 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. S 36-22A formerly read:
SECTION 36-22A Providers to repay amounts etc. for units wholly consisting of work experience in industry - provider ceases to provide course
36-22A(1)
A higher education provider must, on the *Secretary's behalf, determine that this section applies to a person if:
(a)
the person has been enrolled as a *Commonwealth supported student with the provider in a unit of study; and
(b)
the unit would, if completed, form part of a *course of study undertaken with the provider; and
(c)
the unit wholly consists of *work experience in industry; and
(d)
the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and
(e)
the *tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and
(f)
the person chose the option designated under the *tuition assurance requirements as student contribution/fee repayment in relation to the unit.
Note:
A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(5).
36-22A(2)
The provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
36-22A(3)
The *Secretary may determine that this section applies to a person if the provider is unable to do so.
SECTION 36-23
Dealing with applications
36-23(1)
If:
(a)
the application under paragraph
36-20(1)(e) is made before the end of the application period under section
36-22; or
(b)
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;
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.
36-23(2)
The notice must include a statement of the reasons for the decision.
History
S 36-23 substituted by No 104 of 2011, s 3 and Sch 2 item 19, 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. S 36-23 formerly read:
SECTION 36-23 Providers to repay amounts etc. for units wholly consisting of work experience in industry - no tax file numbers
36-23(1)
This section applies to a person if:
(a)
a higher education provider cancels the person's enrolment in a unit of study under subsection 193-5(1); and
(b)
the unit wholly consists of *work experience in industry.
Note:
A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(5).
36-23(2)
The provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
SECTION 36-24A
Providers to repay amounts - provider defaults
36-24A(1)
A higher education provider must, on the *Secretary's behalf, determine that this section applies to a person if:
(a)
the person has been enrolled as a *Commonwealth supported student with the provider in a unit of study; and
(b)
the unit would, if completed, form part of a *course of study undertaken with the provider; and
(c)
the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider *defaulted in relation to the person; and
(d)
Part
5-1A applied to the provider at the time the provider defaulted in relation to the person; and
(e)
any of the following apply:
(i)
the provider identifies, under paragraph 166-25(4)(b) that there is no suitable *replacement unit or *replacement course for the person;
(ii)
the person elects, under subparagraph 166-25(7)(a)(iii), to have an amount equal to the amounts of *HECS-HELP assistance that the person received for the unit re-credited to the student's *HELP balance;
(iii)
the *Higher Education Tuition Protection Director decides, under paragraph 166-26B(2)(b) that the Director is not satisfied that there is a suitable replacement course for the person;
(iv)
the person elects, under subparagraph 166-26B(4)(a)(iii), to have an amount equal to the amounts of HECS-HELP assistance that the person received for the unit re-credited to the student's HELP balance.
Note:
A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(4).
History
S 36-24A(1) amended by No 101 of 2020, s 3 and Sch 2 item 81, by substituting para (e), applicable in relation to provider defaults that occur on or after 1 January 2021. Para (e) formerly read:
(e)
either of the following apply:
(i)
the *HELP Tuition Protection Director decides, under paragraph 166-25(1)(b), that the Director is not satisfied that there is a suitable *replacement course for the person;
(ii)
the person elects, under subparagraph 166-25(3)(a)(iii), to have an amount equal to the amounts of *HECS-HELP assistance that the person received for the unit *re-credited to the student's *HELP balance.
S 36-24A(1) substituted by No 111 of 2019, s 3 and Sch 2 item 9, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
36-24A(2)
The provider must pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
History
S 36-24A(2) substituted by No 101 of 2020, s 3 and Sch 2 item 82, applicable in relation to provider defaults that occur on or after 1 January 2021. S 36-24A(2) formerly read:
36-24A(2)
The provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
36-24A(3)
If a determination made under subsection (1) is made in writing, the determination is not a legislative instrument.
History
S 36-24A inserted by No 104 of 2011, s 3 and Sch 2 item 19, 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.
SECTION 36-24B
Providers to repay amounts - no tax file numbers
36-24B(1)
This section applies to a person if a higher education provider cancels the person's enrolment in a unit of study under subsection
193-5(1).
Note:
A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(4).
36-24B(2)
The provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to the amount (if any) that was paid to the provider for the unit under section
96-1.
History
S 36-24B(2) amended by No 64 of 2022, s 3 and Sch 4 item 1, by substituting "section 96-1" for "section 96-1, 96-2 or 96-3" in para (b), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023.
S 36-24B(2) amended by No 64 of 2022, s 3 and Sch 1 item 17, by substituting para (b), effective 30 November 2022. Para (b) formerly read:
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
History
S 36-24B inserted by No 104 of 2011, s 3 and Sch 2 item 19, 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.
SECTION 36-24BA
Providers to repay amounts - person's SLE amount re-credited in special circumstances
36-24BA(1)
This section applies if:
(a)
a person has been enrolled as a *Commonwealth supported student with a higher education provider in a unit of study; and
(b)
the person's *SLE amount has been re-credited under section
79-1 with an amount equal to the *EFTSL value of the unit.
36-24BA(2)
The provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to the person's *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
History
S 36-24BA inserted by No 93 of 2020, s 3 and Sch 4B item 4, 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).
SECTION 36-24BB
Providers to repay amounts - provider completes request for assistance
36-24BB(1)
This section applies to a person if the person's *HELP balance is re-credited with an amount relating to *HECS-HELP assistance for a unit of study under section
97-45.
Note:
The person's HECS-HELP debt relating to the unit is taken to be remitted if the person's HELP balance is re-credited in relation to the unit under section 97-45: see section 137-5.
36-24BB(2)
The higher education provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to the person's *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to the amount (if any) that was paid to the provider for the unit under section
96-1.
History
S 36-24BB(2) amended by No 64 of 2022, s 3 and Sch 4 item 2, by substituting "section 96-1" for "section 96-1, 96-2 or 96-3" in para (b), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023.
S 36-24BB(2) amended by No 64 of 2022, s 3 and Sch 1 item 18, by substituting para (b), effective 30 November 2022. Para (b) formerly read:
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
36-24BB(3)
Subsection
(2) does not apply to the provider if:
(a)
the person enrolled in the unit as a *replacement unit; or
(b)
it is determined that section
36-24A applies to the person in relation to the unit.
36-24BB(4)
The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to circumstances to which paragraph
(3)(a) applies:
(a)
the amount (if any) that is to be paid to the person; and
(b)
the amount (if any) that is to be paid to the Commonwealth; and
(c)
the person (if any) who is to pay the amounts.
History
S 36-24BB inserted by No 55 of 2021, s 3 and Sch 1 item 7, effective 25 June 2021. No 55 of 2021, s 3 and Sch 1 item 12 contain the following application provisions:
12 Application provisions
(1)
Subject to this item, the amendments of the Higher Education Support Act 2003 made by this Part apply in relation to units of study with a census date on or after 1 January 2021.
(2)
Subitem (3) applies if, before the commencement of this item:
(a)
a person's HELP balance was re-credited with an amount relating to HECS-HELP assistance for a unit of study under section 97-45 or 97-50 of the Higher Education Support Act 2003; and
(b)
the higher education provider paid to the Commonwealth an amount equal to any HECS-HELP assistance to which the person was entitled for the unit, in accordance with section 96-5 of that Act.
(3)
Paragraphs 36-24BB(2)(b) and 36-24BC(2)(b) of the Higher Education Support Act 2003, as inserted by this Part, do not apply to the provider in relation to the person and the unit.
SECTION 36-24BC
Providers to repay amounts - person not entitled to assistance
36-24BC(1)
This section applies to a person if the person's *HELP balance is re-credited with an amount relating to *HECS-HELP assistance for a unit of study under section
97-50.
Note:
The person's HECS-HELP debt relating to the unit is taken to be remitted if the person's HELP balance is re-credited in relation to the unit under section 97-50: see section 137-5.
36-24BC(2)
The higher education provider must:
(a)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to the person's *student contribution amount for the unit; and
(b)
pay to the Commonwealth an amount equal to the amount (if any) that was paid to the provider for the unit under section
96-1.
History
S 36-24BC(2) amended by No 64 of 2022, s 3 and Sch 4 item 3, by substituting "section 96-1" for "section 96-1, 96-2 or 96-3" in para (b), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023.
S 36-24BC(2) amended by No 64 of 2022, s 3 and Sch 1 item 19, by substituting para (b), effective 30 November 2022. Para (b) formerly read:
(b)
pay to the Commonwealth an amount equal to any *HECS-HELP assistance to which the person was entitled for the unit.
36-24BC(3)
Subsection
(2) does not apply to the provider if:
(a)
the person enrolled in the unit as a *replacement unit; or
(b)
it is determined that section
36-24A applies to the person in relation to the unit.
36-24BC(4)
The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to circumstances to which paragraph
(3)(a) applies:
(a)
the amount (if any) that is to be paid to the person; and
(b)
the amount (if any) that is to be paid to the Commonwealth; and
(c)
the person (if any) who is to pay the amounts.
History
S 36-24BC inserted by No 55 of 2021, s 3 and Sch 1 item 7, effective 25 June 2021. For application provisions, see note under s 36-24BB.
SECTION 36-24C
36-24C
Secretary may act if provider is unable to
If a higher education provider is unable to act for one or more of the purposes of subsection
36-12(2) or
36-20(1), section
36-21,
36-22 or
36-23 or subsection
36-24A(1), the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.
History
S 36-24C amended by No 93 of 2020, s 3 and Sch 4 item 16, by substituting "subsection 36-12(2) or 36-20(1)" for "subsection 36-20(1)", effective 1 January 2021.
S 36-24C inserted by No 104 of 2011, s 3 and Sch 2 item 19, 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.
Subdivision 36-C - Conditions relating to enrolment
SECTION 36-25
Continued support for Commonwealth supported students
36-25(1)
A higher education provider must advise a person who is enrolled in a unit of study with the provider, as part of a *course of study being undertaken with the provider, that he or she is a *Commonwealth supported student in relation to the unit if:
(a)
the person is or has been a Commonwealth supported student in relation to one or more other units of study, undertaken with the provider, as part of the course; and
(b)
the provider is not prohibited, under Subdivision
36-B, from so advising the person.
History
S 36-25(1) amended by No 93 of 2020, s 3 and Sch 4 item 17, by substituting "under Subdivision 36-B" for "under section 36-10 or section 36-15, or both" in para (b), effective 1 January 2021.
36-25(2)
A *Table A provider (the
host provider
) must advise a person who is enrolled in a unit of study with the provider, as part of a *course of study being undertaken with another Table A provider (the
home provider
), that he or she is a *Commonwealth supported student in relation to the unit if:
(a)
the person is or has been a Commonwealth supported student in relation to one or more other units of study in the course undertaken with the home provider; and
(b)
the person must undertake the unit, because it is required to complete the course; and
(c)
the host provider is not prohibited, under Subdivision
36-B, from so advising the person.
History
S 36-25(2) amended by No 93 of 2020, s 3 and Sch 4 item 17, by substituting "under Subdivision 36-B" for "under section 36-10 or section 36-15, or both" in para (c), effective 1 January 2021.
36-25(3)
If a higher education provider has, under subparagraph
36-5(1)(a)(ii), advised a person that he or she is a Commonwealth supported student in relation to a *course of study with the provider, then the higher education provider is taken to have advised the person that he or she is a Commonwealth supported student in relation to each unit of study undertaken with the provider, as part of that course.
SECTION 36-30
Providers to enrol persons as Commonwealth supported students
Table A providers
36-30(1)
If:
(a)
a person is to be enrolled with a *Table A provider in a unit of study; and
(aa)
the unit to be undertaken with the provider forms part of an *undergraduate course of study; and
(b)
the provider is not prohibited, under Subdivision
36-B, from advising the person that he or she is a *Commonwealth supported student in relation to the unit;
the provider must enrol the person in the unit as a Commonwealth supported student.
History
S 36-30(1) amended by No 93 of 2020, s 3 and Sch 4 item 18, by substituting "under Subdivision 36-B" for "under section 36-10 or section 36-15, or both" in para (b), effective 1 January 2021.
S 36-30(1) amended by No 104 of 2011, s 3 and Sch 2 item 10, by omitting "that is *covered by the person's *Student Learning Entitlement" after "unit of study" from para (a), 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.
S 36-30(1) amended by No 43 of 2008, s 3 and Sch 2 item 6, by inserting para (aa), applicable in relation to an enrolment of a person in a unit of study on or after 1 January 2009.
36-30(2)
Subsection (1) does not apply in respect of a person's enrolment with a *Table A provider in a unit of study that forms part of an *undergraduate course of study if:
(a)
the person commences the undergraduate course of study with the provider before 1 January 2009; or
(b)
both:
(i)
the person transfers to the undergraduate course of study with the provider on or after 1 January 2009 from another undergraduate course of study in which the person was enrolled with the provider before 1 January 2009; and
(ii)
the person had not completed that other undergraduate course of study; or
(c)
all of the following apply:
(i)
the person was offered, and accepted, a place (other than a Commonwealth supported place) in the undergraduate course of study with the provider before 1 January 2009;
(ii)
the undergraduate course of study was to commence before 1 January 2009;
(iii)
with the provider's approval, the person commences the course of study after that time; or
(d)
at the time the person commences the undergraduate course of study with the provider, the person is an *overseas student.
History
S 36-30(2) substituted by No 43 of 2008, s 3 and Sch 2 item 7, applicable in relation to an enrolment of a person in a unit of study on or after 1 January 2009. S 36-30(2) formerly read:
36-30(2)
Subsection (1) does not apply, and is taken never to have applied, in relation to that enrolment if:
(a)
in respect of the year in which the person is enrolled in the unit, the provider has already filled, or fills, all of the *number of Commonwealth supported places allocated to the provider for the year under section 30-10; or
(b)
the person notifies an *appropriate officer of the provider that he or she does not wish to be a *Commonwealth supported student in relation to the unit.
Other higher education providers
36-30(3)
If a person is to be enrolled, with a higher education provider that is not a *Table A provider, in a unit of study, the provider must enrol the person in the unit as a *Commonwealth supported student if:
(a)
completion of the unit is in furtherance of a *national priority; and
(b)
places have been allocated to the provider under section
30-10 in respect of that national priority for the year in which the person is enrolled in the unit; and
(c)
the provider is not prohibited, under Subdivision
36-B, from advising the person that the person is a Commonwealth supported student in relation to the unit.
History
S 36-30(3) amended by No 93 of 2020, s 3 and Sch 4 item 19, by inserting para (c), effective 1 January 2021.
S 36-30(3) amended by No 104 of 2011, s 3 and Sch 2 item 11, by omitting "that is *covered by a person's *Student Learning Entitlement" after "a unit of study", 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.
36-30(4)
Subsection (3) does not apply, and is taken never to have applied, in relation to that enrolment if:
(a)
in respect of the year in which the person is enrolled in the unit, the provider has already filled, or fills, all of the *number of Commonwealth supported places in respect of that *national priority; or
(b)
the person notifies an *appropriate officer of the provider that he or she does not wish to be a *Commonwealth supported student in relation to the unit.
Notices under paragraph (4)(b)
36-30(5)
A notice under paragraph (4)(b):
(a)
must be in writing; and
(b)
must be given on or before the *census date for the unit.
History
S 36-30(5) amended by No 43 of 2008, s 3 and Sch 2 item 8, by omitting "(2)(b) or" after "under paragraph", effective 25 June 2008.
SECTION 36-32
36-32
Commonwealth supported study at a particular campus
Nothing in sections
36-25 or
36-30 requires a higher education provider to advise a person that he or she is a Commonwealth supported student in relation to a unit of study undertaken at a particular campus of the provider.
History
S 36-32 inserted by No 72 of 2007, s 3 and Sch 4 item 1, effective 28 May 2007.
SECTION 36-35
36-35
Percentage of Commonwealth supported places to be provided by Table A providers
(Repealed by No 119 of 2007)
History
S 36-35 repealed by No 119 of 2007, s 3 and Sch 5 item 1, effective 1 January 2008. S 36-35 formerly read:
SECTION 36-35 Percentage of Commonwealth supported places to be provided by Table A providers
36-35(1)
A *Table A provider must ensure that, in any year, the *number of Commonwealth supported places provided by the provider accounts for:
(a)
at least 65% of the total number of places that the provider provides for *domestic students in each *undergraduate course of study that is not:
(i)
a course of study to which a determination under subsection 36-15(2) applies; or
(ii)
a *course of study in medicine; or
(b)
at least the percentage, declared by the Minister in writing, of the total places provided by the provider for domestic students in each course of study in medicine.
36-35(2)
For the purpose of applying subsection (1) in relation to a *course of study, disregard any enrolment in:
(a)
*work experience in industry; or
(b)
an *employer reserved place in that course; or
(c)
a unit of study that is the subject of a determination by the provider under subsection 36-10(7).
36-35(3)
The percentage declared by the Minister under paragraph (1)(b) must be at least 65%.
36-35(4)
A
course of study in medicine
is a *course of study completion of which would allow provisional registration as a medical practitioner by an authority of a State, a Territory or the Commonwealth.
SECTION 36-40
Providers to cancel enrolments in certain circumstances
36-40(1)
A
higher education provider must cancel a person's enrolment in a unit of study
with the provider if the person:
(a)
is enrolled
as a *Commonwealth supported student in relation to the unit; and
(b)
has not, on or before the *census
date for the unit:
(i)
completed, and signed, a *request for
Commonwealth assistance in relation to the unit or, where the unit forms part
of a *course of study undertaken with the provider, in relation to the course
of study; and
(ii)
given it to an *appropriate officer of
the provider.
36-40(2)
A
higher education provider must cancel a person's enrolment in a unit of study
with the provider if the person:
(a)
is enrolled
as a *Commonwealth supported student in relation to the unit; and
(b)
is not entitled to *HECS-HELP assistance
for the unit; and
(c)
has
not, on or before the *census date for the unit, paid to the provider the
whole of the person's *student contribution amount for the unit.
However, this subsection does not apply if the person's
student contribution amount for the unit is a nil amount.
36-40(3)
A
request for Commonwealth assistance
, in relation
to a person enrolling in a unit of study with a higher education provider
(where access to the unit was not provided by *Open Universities Australia),
means a document:
(a)
in which the person
requests the Commonwealth to provide assistance under this Act in relation
to the unit or, where the unit forms part of a *course of study undertaken
with the provider, in relation to the course of study; and
(b)
that is in the form approved by the
Minister.
Subdivision 36-D - Conditions relating to student contribution
amounts
SECTION 36-45
36-45
Limits on student contribution amounts
If a person is enrolled with a higher education
provider in a unit of study as a *Commonwealth supported student, the provider
must not charge, as the person's *student contribution amount for the unit,
an amount that exceeds the amount worked out as follows:
|
*Maximum student contribution
amount
for a place |
× |
The *EFTSL value of the unit |
|
SECTION 36-50
36-50
Provider must not accept up-front payments of more than 90% of student contribution amounts
(Repealed by No 64 of 2022)
History
S 36-50 repealed by No 64 of 2022, s 3 and Sch 4 item 4, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023. S 36-50 formerly read:
SECTION 36-50 Provider must not accept up-front payments of more than 90% of student contribution amounts
36-50
A higher education provider must not accept, from a person who:
(a)
is enrolled in a unit of study with the provider; and
(b)
is entitled to *HECS-HELP assistance for the unit;
*up-front payments in relation to the unit totalling more than 90% of the person's *student contribution amount for the unit.
Note:
For entitlement to HECS-HELP assistance: see Division 90.
S 36-50 inserted by No 93 of 2020, s 3 and Sch 4A item 1, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
Former s 36-50 repealed by No 169 of 2015, s 3 and Sch 3 item 1, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017. S 36-50 formerly read:
SECTION 36-50 Provider must not accept up front payments of more than 90% of student contribution amounts
36-50
A higher education provider must not accept, from a person who:
(a)
is enrolled in a unit of study with the provider; and
(b)
is entitled to *HECS-HELP assistance for the unit;
*up-front payments for the unit totalling more than 90% of the person's *student contribution amount for the unit.
Note:
For entitlement to HECS-HELP assistance: see Division 90.
Former s 36-50 amended by No 178 of 2011, s 3 and Sch 2 item 2, by substituting "90%" for "80%", applicable in relation to units of study whose census dates are on or after 1 January 2012.
Subdivision 36-E - Conditions relating to tuition fees
SECTION 36-55
Tuition fees for non-Commonwealth supported students
Tuition fees for units of study
36-55(1)
A higher education provider must not determine, as a person's *tuition fee for a unit of study, an amount that is less than the highest *student contribution amount that the provider would charge any person who is a *Commonwealth supported student in relation to the unit.
History
S 36-55(1) (not including the heading) substituted by No 93 of 2020, s 3 and Sch 5 item 4, effective 28 October 2020. S 36-55(1) formerly read:
36-55(1)
A higher education provider must not determine, as a person's *tuition fee for a unit of study, an amount that is less than:
(a)
if paragraph (b) does not apply - the highest *student contribution amount that the provider would charge any person who is a *Commonwealth supported student in relation to the unit; or
(b)
such other higher amount as is specified in the Tuition Fee Guidelines.
36-55(2)
Subsection (1) does not apply if the person is enrolled in an *employer reserved place. However, the provider must not charge, as the person's *tuition fees for the unit, amounts that are such that the sum of:
(a)
the tuition fees; and
(b)
the *employer contribution amount for the unit;
is less than the *student contribution amount referred to in subsection (1):
(c)
if paragraph (d) does not apply - the *student contribution amount referred to in paragraph (1)(a); or
(d)
such amount as is specified in the Tuition Fee Guidelines for the purposes of paragraph (1)(b).
History
S 36-55(2) amended by No 93 of 2020, s 3 and Sch 5 item 5, by substituting "than the *student contribution amount referred to in subsection (1)" for all the words after "is less", effective 28 October 2020.
36-55(3)
If a person:
(a)
is enrolled in study with a higher education provider on a *non-award basis; and
(b)
could have enrolled in that study as a unit of study if the enrolment were not on a non-award basis;
the provider must not charge, as the person's *fees for the study, amounts that in total are less than the highest amount that the provider would charge any person:
(c)
who may enrol in the study as a unit of study; and
(d)
who is a *Commonwealth supported student in relation to the unit.
Subdivision 36-F - Other conditions
SECTION 36-60
36-60
Providers to meet the quality and accountability requirements
A higher education provider must meet the *quality and accountability requirements.
SECTION 36-65
36-65
Providers to comply with funding agreement
A higher education provider must comply with
any funding agreement the provider enters into under section
30-25.
SECTION 36-70
Providers to comply with the Commonwealth Grant Scheme Guidelines
36-70(1)
The Commonwealth Grant Scheme Guidelines may specify conditions that higher education providers must comply with for the purposes of this Division.
36-70(2)
A higher education provider must comply with all such conditions in respect of any year for which the provider receives a grant under this Part.
36-70(3)
However, the provider need not comply with such a condition during a particular year if the condition comes into force on or after the day on which the provider entered into a funding agreement under section
30-25 in respect of a period that includes that year.
History
S 30-70(3) amended by No 119 of 2007, s 3 and Sch 3 item 16, by omitting "in respect of the year of" after "under section 30-25", applicable:
(a) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2009 and later years; and
(b) to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in respect of each year in a period of 3 years that includes 2008.
S 30-70(3) amended by No 119 of 2007, s 3 and Sch 3 item 8, by inserting "or in respect of a period that includes that year", applicable to funding agreements entered into under subsection 30-25(1) of the Higher Education Support Act 2003 in relation to grants in respect of 2008 or in respect of a period that includes 2008.
PART 2-2A - INDIGENOUS STUDENT ASSISTANCE GRANTS
History
Pt 2-2A inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
Division 38 - Indigenous student assistance grants
History
Div 38 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-1
What this Part is about
Grants for assisting Indigenous persons are payable under this Part to Table A providers and Table B providers.
Note:
This Part does not apply to Table C providers: see section 5-1.
History
S 38-1 amended by No 14 of 2021, s 3 and Sch 2 item 2, by substituting "Indigenous persons" for "Indigenous students", effective 2 March 2021.
S 38-1 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-5
38-5
Indigenous Student Assistance Grants Guidelines
Grants under this Part are also dealt with in the Indigenous Student Assistance Grants Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The Indigenous Student Assistance Grants Guidelines are made by the Minister under section 238-10.
History
S 38-5 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-10
Eligibility for grants under this Part
38-10(1)
A *Table A provider or *Table B provider is, subject to subsection (3), eligible for grants under this Part, in respect of the year 2017 or a later year, for the following purposes:
(a)
assisting *Indigenous persons (who may or may not be students) to undertake higher education;
(b)
increasing the number of:
(i)
*Indigenous persons enrolling in courses leading to *higher education awards; and
(ii)
students who are Indigenous persons progressing in and completing courses leading to higher education awards.
History
S 38-10(1) amended by No 14 of 2021, s 3 and Sch 2 items 3 and 4, by substituting "*Indigenous persons (who may or may not be students)" for "Indigenous students" in para (a) and substituting para (b), effective 2 March 2021. Para (b) formerly read:
(b)
increasing the number of Indigenous students enrolling in, progressing in and completing courses leading to *higher education awards.
38-10(2)
Without limiting subsection (1), the purposes mentioned in that subsection may be achieved through the following means:
(a)
providing scholarships;
(b)
providing academic support, including supplementary tuition;
(c)
providing pastoral care;
(d)
implementing strategies to:
(i)
accelerate improvements to Indigenous student outcomes in higher education; or
(ii)
foster culturally-safe learning environments in higher education.
38-10(3)
If the Indigenous Student Assistance Grants Guidelines:
(a)
provide for a grant; and
(b)
specify extra conditions of eligibility to receive the grant;
then a *Table A provider or *Table B provider is not eligible for the grant unless the provider complies with those extra conditions.
History
S 38-10 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-15
Guidelines may provide for grants
38-15(1)
The Indigenous Student Assistance Grants Guidelines may provide for one or more grants to *Table A providers and *Table B providers for purposes specified in subsection
38-10(1).
38-15(2)
If the Indigenous Student Assistance Grants Guidelines provide for one or more grants of a particular type, the guidelines may also specify all or any of the following matters for the grants:
(a)
the grants' objectives;
(b)
the extra conditions of eligibility to receive the grants;
(c)
the amount, being part of the amount referred to in section
38-45 for a year, that will be spent on grants of that type in that particular year;
(d)
the indexation of that amount for subsequent years, using the method of indexation set out in Part
5-6;
(e)
the amounts of the grants, or the methods by which the amounts of the grants will be determined;
(f)
the year or years in respect of which the grants are payable;
(g)
the conditions that apply to the grants.
History
S 38-15 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-20
38-20
Approval of grants
The Minister may, by notifiable instrument, approve a grant under this Part in respect of a year to a particular higher education provider that is eligible for such a grant.
History
S 38-20 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-25
Conditions on grants
38-25(1)
A grant is made on the following conditions:
(a)
if the grant is provided for by the Indigenous Student Assistance Grants Guidelines and the guidelines specify conditions that apply to the grant:
(i)
on the conditions provided for in the guidelines; and
(ii)
also on the condition that the higher education provider receiving the grant must meet the *quality and accountability requirements;
(b)
if paragraph (a) does not apply:
(i)
on such conditions (if any) as the Minister determines under subsection (2); and
(ii)
also on the condition that the higher education provider receiving the grant must meet the quality and accountability requirements.
38-25(2)
For the purposes of subparagraph (1)(b)(i), the Minister may, by notifiable instrument, determine conditions that apply to one or more grants that a particular higher education provider receives.
History
S 38-25 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-30
Amounts of grants
38-30(1)
The amount of a grant is:
(a)
if:
(i)
the grant is provided for by the Indigenous Student Assistance Grants Guidelines; and
(ii)
the guidelines specify the amount of the grant, or a method by which the amount of the grant is to be determined;
the specified amount, or the amount determined by the specified method; or
(b)
if paragraph (a) does not apply - the amount determined by the Minister under subsection (2).
38-30(2)
For the purposes of paragraph (1)(b), the Minister may, by notifiable instrument, determine the amounts of one or more grants that a particular higher education provider receives.
History
S 38-30 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-35
38-35
Amounts payable under this Part
If:
(a)
a higher education provider meets, in respect of a year, the requirements of the Indigenous Student Assistance Grants Guidelines for the purposes of section
38-15 in relation to a grant; or
(b)
the Minister approves, under section
38-20, a grant to a higher education provider in respect of a year;
there is payable to the provider concerned, in respect of that year, an amount equal to the amount referred to in section 38-30 in respect of that grant.
History
S 38-35 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-40
Rollover of grant amounts
38-40(1)
If:
(a)
a higher education provider to which a grant under this Part has been made in respect of a year fails to spend an amount of that grant; and
(b)
the *Secretary determines under subsection (3) that this section is to apply to the provider in respect of that grant;
then so much of the unspent amount as the Secretary determines under that subsection is taken to be granted to the provider under this Part in respect of the next following year.
38-40(2)
The grant is taken to be made:
(a)
under the same conditions as the conditions of the original grant, except the grant is taken to be made in respect of the next following year; or
(b)
under such other conditions as the Secretary determines under subsection (4).
38-40(3)
For the purposes of subsection (1), the Secretary may, by notifiable instrument, determine:
(a)
that this section is to apply to a particular higher education provider in respect of one or more grants; and
(b)
for each grant, an amount of the unspent amount of the grant.
38-40(4)
For the purposes of paragraph (2)(b), the Secretary may, by notifiable instrument, determine conditions that apply to one or more grants made to a particular higher education provider.
History
S 38-40 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
SECTION 38-45
Maximum payments for grants under this Part
38-45(1)
The total payments made under this Part in respect of a year must not exceed the amount determined by the Minister under subsection (2) in respect of the year.
38-45(2)
The Minister may, by legislative instrument, determine the total payments made under this Part in respect of a year.
Note:
A single instrument may determine amounts for multiple years.
38-45(3)
A determination under subsection (2) for a year must be made before the start of that year.
[
CCH Note:
No 74 of 2016, s 3 and Sch 1 item 8 provides the following transitional provision to subsection 38-45(3):
8 Transitional provision
Subsection 38-45(3) of the Higher Education Support Act 2003 does not apply to a determination for the year 2017.
]
38-45(4)
The Minister may, by legislative instrument, at any time before the end of a year, vary a determination made under subsection (2) for the year.
History
S 38-45 inserted by No 74 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017.
PART 2-3 - OTHER GRANTS
Division 41 - Other grants
SECTION 41-1
41-1
What this Part is about
Grants under this Part are payable to higher
education providers and other eligible bodies for a variety of purposes.
Note:
This Part does not apply to Table C providers: see section 5-1.
SECTION 41-5
41-5
The Other Grants Guidelines
Other grants are also dealt with in the Other
Grants Guidelines. The provisions of this Part indicate when a particular
matter is or may be dealt with in these Guidelines.
Note:
The Other Grants Guidelines are made by the Minister under section 238-10.
SECTION 41-10
Eligibility for grants under this Part
41-10(1)
Subject to subsection
(2), a body corporate referred to in an item in the third column of the table is eligible for grants under this Part, in respect of the year 2005 or a later year, for the purposes specified in the second column of that item.
Eligibility for grants under this Part
|
Item
|
Purpose of grant
|
Who is eligible
|
1 |
Grants to promote equality of opportunity in higher education |
*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
2 |
Grants to promote the productivity of higher education providers |
*Table A providers |
3 |
(Repealed by No 86 of 2009) |
|
4 |
Grants to support national institutes specified in the Other Grants Guidelines for the purposes of this item |
*Table A providers |
5 |
Grants to support the capital development projects of higher education providers |
*Table A providers and *Table B providers |
6 |
Grants to assist with the cost of higher education providers' superannuation liabilities |
*Table A providers |
7 |
Grants to support research by, and the research capability of, higher education providers |
*Table A providers and *Table B providers |
8 |
Grants to support the training of research students |
*Table A providers and *Table B providers |
8A |
(Repealed by No 86 of 2009) |
|
9 |
Grants to foster collaboration and reform in higher education |
*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
9A |
Grants to support diversity and structural reform |
*Table A providers, *Table B providers that are universities, and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
9B |
Grants to support structural adjustment |
*Table A providers and *Table B providers that are universities |
10 |
Grants to support the development of systemic infrastructure used by higher education providers |
*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
11 |
Grants for activities that:
(a) assure and enhance the quality of Australia's higher education sector; or
(b) foster an understanding of the importance of, or promote research and scholarship in, science, social science or the humanities in Australia; or
(c) support open access to higher education across Australia. |
*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
11A |
Grants to support arrangements to increase industry-led study and postgraduate research |
*Table A providers, *Table B providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
12 |
Grants to assist higher education providers with the transitional costs of changes to maximum student contribution amounts |
Higher education providers that have provided Commonwealth-supported places for any year |
13 |
Grants to encourage higher education providers to engage with industry |
*Table A providers |
14 |
Grants to assist higher education providers to undertake programs of research, in areas of national priority, that progress development of technologies and services to a state of commercial investor readiness |
*Table A providers, *Table B providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
History
S 41-10(1) amended by No 5 of 2023, s 3 and Sch 1 items 1 and 2, by inserting table items 11A and 14, effective 15 March 2023.
S 41-10(1) amended by No 93 of 2020, s 3 and Sch 3 items 6 and 7, by substituting "*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item" for "*Table A providers" in table item 1, column headed "Who is eligible" and inserting table item 13, effective 1 January 2021.
S 41-10(1) amended by No 104 of 2011, s 3 and Sch 1 item 26, by substituting table item 12, applicable in relation to the year commencing on 1 January 2012 or a later year. Table item 12 formerly read:
12 |
Grants to assist higher education providers with the transitional costs of changes to maximum student contribution amounts |
Higher education providers to which Commonwealth supported places have been allocated for any year |
S 41-10(1) amended by No 86 of 2009, s 3 and Sch 4 item 1, by repealing table items 3 and 8A, effective 1 January 2010. Table items 3 and 8A formerly read:
3 |
Grants to enhance learning and teaching in higher education |
*Table A providers |
8A |
Grants to assist with the cost of providing the practical component of teacher education |
*Table A providers, *Table B providers, and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
S 41-10(1) amended by No 86 of 2009, s 3 and Sch 4 item 2, by inserting table item 9B, effective 18 September 2009.
S 41-10(1) amended by No 89 of 2008, s 3 and Sch 1 item 8, by substituting the column headed "Who is eligible" in table item 9A, effective 20 September 2008. The column formerly read:
... *Table A providers, and *Table B providers that are universities
S 41-10(1) amended by No 119 of 2007, s 3 and Sch 11 item 1, by inserting table item 9A, applicable to grants under Part 2-3 of the Higher Education Support Act 2003 in respect of the year 2008 or a later year.
S 41-10(1) amended by No 119 of 2007, s 3 and Sch 10, by inserting table item 8A, applicable to grants under Part 2-3 of the Higher Education Support Act 2003 in respect of the year 2008 or a later year.
S 41-10(1) amended by No 119 of 2007, s 3 and Sch 6 item 1, by inserting table item 12, effective 28 June 2007.
41-10(2)
If the Other Grants Guidelines:
(a)
specify a program under which grants for a particular purpose specified in the table are to be paid; and
(b)
specify extra conditions of eligibility to receive a grant under the program;
then a body corporate specified in the table in respect of those grants is not eligible for such a grant unless it complies with those extra conditions.
SECTION 41-15
Grants may be paid under programs
41-15(1)
The
Other Grants Guidelines may specify one or more programs under which grants
for particular purposes specified in the table in subsection
41-10(1) are to be paid.
41-15(2)
If
the Other Grants Guidelines specify a program for a grant for a particular
purpose, the guidelines may also specify all or any of the following matters
for the program:
(a)
the program's objectives;
(b)
the extra conditions
of eligibility to receive a grant under the program;
(c)
the amount, being a part of the amount referred
to in section
41-45 for a
year, that will be spent on the program in that particular year;
(d)
the indexation of that amount for
subsequent years, using the method of indexation set out in Part
5-6;
(e)
the method by which the amount of grants under the program will
be determined;
(f)
whether
grants under a program are in respect of a year or a project;
(g)
the conditions that apply to grants
under the program.
SECTION 41-20
41-20
Approval of grants
The Minister may approve a grant under this
Part in respect of a year or a project to a body corporate that is eligible
for such a grant.
SECTION 41-25
Conditions on grants
41-25(1)
A grant is made on the following conditions:
(a)
if the grant is made under a program and the Other Grants Guidelines specify conditions that apply to a grant under that program - on the conditions provided for in the guidelines;
(b)
if the body receiving the grant is a higher education provider - on the condition that the body must meet the *quality and accountability requirements;
(c)
on such other conditions (if any) as the Minister determines in relation to the grant under subsection
(2).
41-25(2)
The Minister may, in writing, determine conditions in relation to a grant for the purposes of paragraph
(1)(c).
41-25(3)
A determination under subsection
(2) is not a legislative instrument.
History
S 41-25 substituted by No 55 of 2021, s 3 and Sch 1 item 13, effective 25 June 2021. No 55 of 2021, s 3 and Sch 1 item 19 contain the following application and transitional provisions:
19 Application and transitional provisions
(1)
Subject to this item, the amendments made by this Part apply in relation to grants made under Part 2-3 of the Higher Education Support Act 2003 on or after the time (the
commencement time
) when this item commences.
(2)
Subitem (3) applies to a grant made on conditions if:
(a)
the grant was made under Part 2-3 of the Higher Education Support Act 2003 before the commencement time; and
(b)
if the grant had been made on or after the commencement time, the conditions would or could have been imposed under section 41-25 of the Higher Education Support Act 2003 as amended by this Part.
(3)
On and after the commencement time, treat the conditions on the grant as conditions imposed under section 41-25 of the Higher Education Support Act 2003 as amended by this Part.
S 41-25 formerly read:
SECTION 41-25 Conditions on grants
41-25
A grant is made on the following conditions:
(a)
if the grant is made under a program and the Other Grants Guidelines specified conditions that apply to a grant under that program:
(i)
on the conditions provided for in the guidelines; and
(ii)
if the body receiving the grant is a higher education provider - also on the condition that the body must meet the *quality and accountability requirements; or
(b)
if paragraph (a) does not apply:
(i)
on such conditions (if any) as the Minister determines in writing; and
(ii)
if the body receiving the grant is a higher education provider - also on the condition that the body must meet the quality and accountability requirements.
SECTION 41-30
41-30
Amount of a grant
The amount of a grant is:
(a)
if the grant is made under a program and the Other Grants Guidelines
specify a method by which the amount of grants under the program are to be
determined - the amount determined by that method; or
(b)
if paragraph (a) does not apply -
the amount determined in writing by the Minister.
SECTION 41-35
41-35
Amounts payable under this Part
If:
(a)
a
body corporate meets, in respect of a year, the requirements of the Other
Grants Guidelines made for the purposes of section
41-15 in
relation to a program; or
(b)
the
Minister approves, under section
41-20,
a grant to a body corporate in respect of a year or project;
there is payable to the body corporate concerned,
in respect of that year or project, an amount equal to the amount referred
to in section 41-30 in respect
of that grant.
SECTION 41-40
Rollover of grant amounts
41-40(1)
If a body to which a grant (the
original grant
) under this Part has been made in respect of a year fails to spend an amount (the
unspent amount
) of the grant before the end of the year, then:
(a)
unless paragraph
(b) applies - the unspent amount is taken to be granted to the body under this Part in respect of the next following year; or
(b)
if the *Secretary specifies an amount (not greater than the unspent amount) in relation to the body and the original grant in a determination under subsection
(1A) - the specified amount is taken to be granted to the body under this Part in respect of the next following year.
History
S 41-40(1) substituted by No 55 of 2021, s 3 and Sch 1 item 14, effective 25 June 2021. For application and transitional provisions, see note under s 41-25. S 41-40(1) formerly read:
41-40(1)
If:
(a)
a body to which a grant under this Part has been made in respect of a year fails to spend an amount of that grant; and
(b)
the *Secretary determines in writing that this section is to apply to the body in respect of that grant;
then so much of the unspent amount as the Secretary specifies is taken to be granted to the body under this Part in respect of the next following year.
41-40(1A)
The *Secretary may, in writing, make a determination for the purposes of paragraph
(1)(b) specifying an amount in relation to a body and a grant.
History
S 41-40(1A) inserted by No 55 of 2021, s 3 and Sch 1 item 14, effective 25 June 2021. For application and transitional provisions, see note under s 41-25.
41-40(2)
The amount taken to be granted under subsection
(1) is taken to be granted for the same purpose as the original grant.
History
S 41-40(2) amended by No 55 of 2021, s 3 and Sch 1 item 15, by inserting "taken to be granted under subsection (1)", effective 25 June 2021. For application and transitional provisions, see note under s 41-25.
41-40(3)
The grant taken to be made under subsection
(1) is taken to be made:
(a)
under the same conditions as the conditions of the original grant - except the grant is taken to be made in respect of the next following year; or
(b)
under such other conditions as are determined by the *Secretary.
History
S 41-40(3) amended by No 55 of 2021, s 3 and Sch 1 item 16, by inserting "taken to be made under subsection (1)", effective 25 June 2021. For application and transitional provisions, see note under s 41-25.
41-40(4)
Subsection
(1) does not apply to a body in relation to a grant if the *Secretary specifies the body in relation to the grant in a determination under subsection
(5).
History
S 41-40(4) inserted by No 55 of 2021, s 3 and Sch 1 item 17, effective 25 June 2021. For application and transitional provisions, see note under s 41-25.
41-40(5)
The *Secretary may, in writing, make a determination for the purposes of subsection
(4) specifying a body in relation to a grant.
History
S 41-40(5) inserted by No 55 of 2021, s 3 and Sch 1 item 17, effective 25 June 2021. For application and transitional provisions, see note under s 41-25.
41-40(6)
A determination under subsection
(1A) or
(5) is not a legislative instrument.
History
S 41-40(6) inserted by No 55 of 2021, s 3 and Sch 1 item 17, effective 25 June 2021. For application and transitional provisions, see note under s 41-25.
SECTION 41-45
Maximum payments for other grants under this Part
41-45(1)
The total payments made under this Part in respect of a year referred to in the table must not exceed the amount specified next to that year in the table.
Maximum payments for other grants under this Part
|
Item
|
Year
|
Amount
|
1 |
2005 |
$1,539,636,000 |
2 |
2006 |
$1,716,942,000 |
3 |
2007 |
$1,768,622,000 |
4 |
2008 |
$1,912,350,000 |
5 |
2009 |
$1,883, 928,000 |
6 |
2010 |
$1,874,910,000 |
7 |
2011 |
$2,032,393,000 |
8 |
2012 |
$2,114,960,000 |
9 |
2013 |
(a) if paragraph (b) does not apply-$2,274,359,000; or
(b) if the Minister determines an amount under subsection (1A) in respect of 2013-that amount |
10 |
2014 |
(a) if paragraph (b) does not apply-$2,225,794,000; or
(b) if the Minister determines an amount under subsection (1A) in respect of 2014-that amount |
11 |
2015 |
(a) if paragraph (b) does not apply-$2,231,354,000; or
(b) if the Minister determines an amount under subsection (1A) in respect of 2015-that amount |
12 |
2016 |
(a) if paragraph (b) does not apply-$2,219,169,000; or
(b) if the Minister determines an amount under subsection (1A) in respect of 2016-that amount |
13 |
2017 and each later year |
The amount determined by the Minister under subsection (1B) in respect of that year |
History
S 41-45(1) amended by No 156 of 2012, s 3 and Sch 1 item 1, by substituting table items 9 to 13 for table items 8 to 11, effective 18 November 2012. Table items 8 to 11 formerly read:
8 |
2012 |
$2,111,577,000 |
9 |
2013 |
$2,303,230,000 |
10 |
2014 |
$2,247,086,000 |
11 |
2015 |
$2,247,086,000 |
S 41-45(1) amended by No 178 of 2011, s 3 and Sch 1 item 2, by substituting table items 8 to 11 for table items 8 to 10, effective 5 December 2011. Table items 8 to 10 formerly read:
8 |
2012 |
$2,057,978,000 |
9 |
2013 |
$2,181,068,000 |
10 |
2014 |
$2,163,501,000 |
S 41-45(1) amended by No 94 of 2011, s 3 and Sch 2 item 1, by substituting table items 8 and 9, effective 8 September 2011. Table items 8 and 9 formerly read:
8 |
2012 |
$2,056,285,000 |
9 |
2013 |
$2,179,375,000 |
S 41-45(1) amended by No 129 of 2010, s 3 and Sch 1 item 2, by substituting table items 6 to 10 for table items 6 to 9, effective 1 December 2010. Table items 6 to 9 formerly read:
6 … 2010 … $1,887,252,000
7 … 2011 … $2,027,324,000
8 … 2012 … $1,996,679,000
9 … 2013 … $2,067,383,000
S 41-45(1) amended by No 86 of 2009, s 3 and Sch 1 item 4, by substituting table items 6 to 9 for table items 6 to 8, effective 18 September 2009. Table items 6 to 8 formerly read:
6 … 2010 … $1,849,974,000
7 … 2011 … $1,837,424,000
8 … 2012 … $1,825,290,000
S 41-45(1) amended by No 43 of 2008, s 3 and Sch 2 item 9, by substituting table items 4 to 8 for table items 4 to 7, effective 25 June 2008. Table items 4 to 7 formerly read:
4 … 2008 … $1,872,116,000
5 … 2009 … $1,838,589,000
6 … 2010 … $1,811,605,000
7 … 2011 … $1,797,426,000
S 41-45(1) amended by No 119 of 2007, s 3 and Sch 1 item 2, by substituting table items 4 to 7 for table items 4 to 6, effective 28 June 2007. Table items 4 to 6 formerly read:
4 … 2008 … $1,758,134,000
5 … 2009 … $1,744,636,000
6 … 2010 … $1,732,526,000
S 41-45(1) amended by No 72 of 2007, s 3 and Sch 9 item 1, by substituting table items 3 to 6, effective 28 May 2007. Table items 3 to 6 formerly read:
3 … 2007 … $1,760, 510,000
4 … 2008 … $1,742,840,000
5 … 2009 … $1,729,877,000
6 … 2010 … $1,729,877,000
S 41-45(1) amended by No 121 of 2006, s 3 and Sch 1 item 6, by substituting table items 3, 4, 5 and 6 for table items 3, 4 and 5, effective 4 November 2006. Table items 3, 4 and 5 formerly read:
3 … 2007 … $1,673,153,000
4 … 2008 … $1,680,474,000
5 … 2009 … $1,667,904,000
41-45(1A)
The Minister may, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2013 but before 1 January 2017.
History
S 41-45(1A) inserted by No 156 of 2012, s 3 and Sch 1 item 2, effective 18 November 2012.
41-45(1B)
The Minister must, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2017.
History
S 41-45(1B) inserted by No 156 of 2012, s 3 and Sch 1 item 2, effective 18 November 2012.
41-45(1C)
A determination under subsection (1B) for a year must be made before the start of that year.
History
S 41-45(1C) inserted by No 156 of 2012, s 3 and Sch 1 item 2, effective 18 November 2012.
41-45(1D)
The Minister may, in writing, vary a determination under subsection (1A) or (1B) for a year at any time before the end of that year.
History
S 41-45(1D) inserted by No 156 of 2012, s 3 and Sch 1 item 2, effective 18 November 2012.
41-45(2)
Payments made in respect of a project in a year are taken, for the purposes of subsection (1) to have been made in respect of that year.
SECTION 41-50
41-50
List of maximum grant amounts
(Repealed by No 55 of 2021)
History
S 41-50 repealed by No 55 of 2021, s 3 and Sch 1 item 18, effective 25 June 2021. For application and transitional provisions, see note under s 41-25. S 41-50 formerly read:
SECTION 41-50 List of maximum grant amounts
41-50(1)
Before the start of a year, the Minister must, by legislative instrument, cause a list to be prepared setting out the maximum amounts of all grants which may be paid in the following year for each purpose of grant specified in the table in section 41-10.
History
S 41-50(1) renumbered from s 41-50 by No 156 of 2012, s 3 and Sch 1 item 3, by inserting "(1)" before "Before", effective 18 November 2012.
41-50(2)
The Minister may, in writing, vary a list for a year at any time before the end of that year.
History
S 41-50(2) inserted by No 156 of 2012, s 3 and Sch 1 item 4, effective 18 November 2012.
SECTION 41-95
Alternative constitutional bases
41-95(1)
In addition to the effect that it has apart from this section, this Part has the effect it would have if each reference in this Part to a grant were expressly confined to a grant:
(a)
to a corporation to which paragraph 51(xx) of the Constitution applies for the purposes of carrying out the corporation's activities; or
(b)
for one or more of the following purposes (as well as for a purpose described in section
41-10):
(i)
a purpose related to trade or commerce with another country, among the States, between a State and a Territory, between 2 Territories or within a Territory;
(ii)
a purpose involving the use of postal, telegraphic, telephonic, and other like services;
(iii)
a purpose relating to astronomical or meteorological observations;
(iv)
a purpose relating to census or statistics;
(v)
a purpose relating to aliens;
(vi)
a purpose relating to old-age pensions;
(vii)
a purpose relating to the provision of benefits to students or sickness benefits;
(viii)
a purpose relating to Aboriginal or Torres Strait Islander people;
(ix)
a purpose relating to external affairs;
(x)
a purpose relating to the executive power of the Commonwealth;
(xi)
a purpose relating to a matter that is peculiarly adapted to the government of a nation and that cannot otherwise be carried on for the benefit of the nation; or
(c)
in or in relation to a Territory.
41-95(2)
A term used in this section and the Constitution has the same meaning in this section as it has in the Constitution.
History
S 41-95 inserted by No 160 of 2015, s 3 and Sch 4 item 1, effective 1 December 2015.
Division 42 - Australia's Economic Accelerator
History
Div 42 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
Subdivision 42-A - Research commercialisation strategy and investment plan
History
Subdiv 42-A inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-1
Research commercialisation strategy
42-1(1)
The *AEA Advisory Board must make a written strategy, to be known as the research commercialisation strategy, to:
(a)
outline the vision, aims and objectives for translation and commercialisation of university research in areas of national priority; and
(b)
identify new and emerging technologies in areas of national priority; and
(c)
identify and propose ways of addressing regulatory, financial and cultural barriers to translating and commercialising university research in areas of national priority.
Note:
For variation and revocation of a strategy, see subsection 33(3) of the Acts Interpretation Act 1901.
42-1(1A)
The strategy must not be inconsistent with *Australia's greenhouse gas emissions reduction targets.
42-1(2)
The first strategy must be made as soon as practicable after this section commences. A subsequent strategy must be made and in force as soon as the current strategy ceases to be in force.
42-1(3)
A strategy is in force for 5 years.
42-1(4)
The *AEA Advisory Board must give a copy of a strategy to the Minister as soon as practicable after making it.
42-1(5)
The Minister must cause a copy of a strategy to be laid before each House of the Parliament.
42-1(6)
A strategy made under subsection
(1) is not a legislative instrument.
History
S 42-1 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-5
Investment plan
42-5(1)
The *AEA Advisory Board must, in relation to each year, formulate written policies for the *Australia's Economic Accelerator program, dealing with the following matters in relation to the year:
(a)
areas of national priority;
(b)
the total amount of funding available;
(c)
any other matters the AEA Advisory Board considers appropriate to deal with to ensure the program meets the program's objectives.
42-5(2)
The *AEA Advisory Board must ensure that the policies are consistent with the research commercialisation strategy in force under section
42-1.
42-5(3)
A member of the *AEA Advisory Board, or a person performing functions or exercising powers under the *Australia's Economic Accelerator program, must not act inconsistently with policies formulated under subsection
(1).
History
S 42-5 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
Subdivision 42-B - Advisory Board
History
Subdiv 42-B inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-10
42-10
Australia's Economic Accelerator Advisory Board
The Australia's Economic Accelerator Advisory Board (
AEA Advisory Board
) is established.
History
S 42-10 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-15
42-15
Functions of the AEA Advisory Board
The *AEA Advisory Board has the following functions:
(a)
to advise the Minister in relation to translation and commercialisation of university research;
(b)
to advise the Minister in relation to the *Australia's Economic Accelerator program, including in relation to objectives, conditions of eligibility and conditions of grants;
(c)
to oversee the performance of functions by priority managers engaged under section
42-75;
(d)
any other functions conferred on the *AEA Advisory Board by this Act or the Other Grants Guidelines;
(e)
to do anything incidental or conducive to the performance of the above functions.
History
S 42-15 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-20
Annual report
42-20(1)
The *AEA Advisory Board must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the AEA Advisory Board's operations during the year.
Note:
See also section 34C of the Acts Interpretation Act 1901, which contains provisions about annual reports.
42-20(2)
The report must include details of:
(a)
achievements and outcomes in translating and commercialising university research in areas of national priority; and
(b)
regulatory, financial and cultural barriers to translating and commercialising university research in areas of national priority and proposed ways of addressing them.
History
S 42-20 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-25
42-25
Membership of the AEA Advisory Board
The *AEA Advisory Board consists of the following members:
(a)
the Chair;
(b)
the Deputy Chair;
(c)
not fewer than 4, and not more than 6, other members.
History
S 42-25 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-30
Appointment of members of the AEA Advisory Board
42-30(1)
Members of the *AEA Advisory Board are to be appointed, on a part-time basis, by the Minister by written instrument.
42-30(2)
A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note:
Subject to subsection (3), a member may be reappointed - see section 33AA of the Acts Interpretation Act 1901.
42-30(3)
A member cannot be appointed for more than 3 consecutive periods.
42-30(4)
The Minister must appoint one member to be the Chair and another to be the Deputy Chair.
42-30(5)
The Minister must ensure that the members collectively:
(a)
possess experience and knowledge in research and its translation and commercialisation; and
(b)
represent the sectors of government, industry, business and research.
History
S 42-30 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-35
Acting AEA Advisory Board members
Acting by operation of law
42-35(1)
The Deputy Chair of the *AEA Advisory Board is to act as the Chair of the AEA Advisory Board:
(a)
during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or
(b)
during any period, or during all periods, when the Chair:
(i)
is absent from duty; or
(ii)
is, for any reason, unable to perform the duties of the office.
Note:
For rules that apply to persons acting as the Chair, see section 33A of the Acts Interpretation Act 1901.
Acting appointments
42-35(2)
The Minister may, by written instrument, appoint a member to act as the Deputy Chair of the *AEA Advisory Board:
(a)
during a vacancy in the office of Deputy Chair of the AEA Advisory Board (whether or not an appointment has previously been made to the office); or
(b)
during any period, or during all periods, when the Deputy Chair of the AEA Advisory Board:
(i)
is acting as the Chair of the AEA Advisory Board; or
(ii)
is absent from duty; or
(iii)
is, for any reason, unable to perform the duties of the office.
Note:
For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
42-35(3)
The Minister may, by written instrument, appoint a person to act as a member (other than the Chair or Deputy Chair) of the *AEA Advisory Board:
(a)
during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or
(b)
during any period, or during all periods, when a member:
(i)
is acting as the Deputy Chair; or
(ii)
is absent from duty; or
(iii)
is, for any reason, unable to perform the duties of the office.
Note:
For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
Experience and knowledge etc. of acting members
42-35(4)
Subsection
42-30(5) applies to an appointment under this section in the same way as it applies to an appointment under section
42-30.
History
S 42-35 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-40
Remuneration and allowances
42-40(1)
A member of the *AEA Advisory Board is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by rules made under subsection
(4).
42-40(2)
A member of the *AEA Advisory Board is to be paid the allowances that are prescribed by rules made under subsection
(4).
42-40(3)
This section has effect subject to the
Remuneration Tribunal Act 1973.
42-40(4)
The Minister may, by legislative instrument, make rules prescribing matters for the purposes of this section.
History
S 42-40 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-45
42-45
Leave of absence
The Minister may grant leave of absence to a member of the *AEA Advisory Board on the terms and conditions that the Minister determines.
History
S 42-45 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-50
42-50
Disclosure of interests to the Minister
A member of the *AEA Advisory Board must give written notice to the Minister of any direct or indirect pecuniary interest that the member has or acquires and that conflicts or could conflict with the proper performance of the member's functions.
History
S 42-50 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-55
Disclosure of interests to the AEA Advisory Board
42-55(1)
A member of the *AEA Advisory Board who has an interest, pecuniary or otherwise, in relation to either of the following must disclose the nature of the interest to a meeting of the AEA Advisory Board:
(a)
a decision by the AEA Advisory Board to recommend, or not recommend, approval of a grant under the *Australia's Economic Accelerator program;
(b)
another matter being considered or about to be considered by the AEA Advisory Board.
42-55(2)
The disclosure must be made as soon as possible after the relevant facts have come to the member's knowledge.
42-55(3)
The disclosure must be recorded in the minutes of the meeting of the *AEA Advisory Board.
42-55(4)
Unless the *AEA Advisory Board determines otherwise, the member:
(a)
must not be present during any deliberation by the AEA Advisory Board on the matter; and
(b)
must not take part in any decision of the AEA Advisory Board with respect to the matter.
42-55(5)
For the purposes of making a determination under subsection
(4), the member:
(a)
must not be present during any deliberation of the *AEA Advisory Board for the purpose of making the determination; and
(b)
must not take part in making the determination.
42-55(6)
A determination under subsection
(4) must be recorded in the minutes of the meeting of the *AEA Advisory Board.
History
S 42-55 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-60
Resignation
42-60(1)
A member of the *AEA Advisory Board may resign the member's appointment by giving the Minister a written resignation.
42-60(2)
The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
History
S 42-60 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-65
42-65
Termination
The Minister may terminate the appointment of a member of the *AEA Advisory Board for misbehaviour, or if any of the following applies:
(a)
the member is unable to perform the duties of the member's office because of physical or mental incapacity;
(b)
the member:
(i)
becomes bankrupt; or
(ii)
applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii)
compounds with the member's creditors; or
(iv)
makes an assignment of the member's remuneration for the benefit of the member's creditors;
(c)
the member is absent, except on leave of absence, from 3 consecutive meetings of the AEA Advisory Board;
(d)
the member fails, without reasonable excuse, to comply with section
42-50 or
42-55 (which deal with the disclosure of interests).
History
S 42-65 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-70
42-70
Other terms and conditions
A member of the *AEA Advisory Board holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined, in writing, by the Minister.
History
S 42-70 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
Subdivision 42-C - Priority managers
History
Subdiv 42-C inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
SECTION 42-75
Priority managers
42-75(1)
The Secretary may, on behalf of the Commonwealth, engage persons to be known as priority managers:
(a)
to perform any functions conferred by the Other Grants Guidelines on priority managers in relation to the *Australia's Economic Accelerator program; and
(b)
to provide technical and specialist advisory services to assist the *AEA Advisory Board in performing any functions conferred by the Guidelines on the Board in relation to the Australia's Economic Accelerator program.
42-75(2)
The persons are to be engaged on the terms and conditions that the Secretary determines.
History
S 42-75 inserted by No 5 of 2023, s 3 and Sch 1 item 3, effective 15 March 2023.
PART 2-4 - COMMONWEALTH SCHOLARSHIPS
History
Part 2-4 (heading) substituted by No 119 of 2007, s 3 and Sch 8 item 5, 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:
PART 2-4 - GRANTS FOR COMMONWEALTH SCHOLARSHIPS
Division 46 - Commonwealth scholarships
History
Div 46 (heading) substituted by No 119 of 2007, s 3 and Sch 8 item 6, 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:
Division 46 - Grants for Commonwealth scholarships
SECTION 46-1
46-1
What this Part is about
Grants for scholarships are made to higher education providers who pay the scholarships to students for the purposes of the students' education. Certain scholarships may be paid directly to students.
Note:
This Part does not apply to Table C providers: see section 5-1.
History
S 46-1 amended by No 119 of 2007, s 3 and Sch 8 item 7, by inserting "Certain scholarships may be paid directly to students." before the note, 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.
SECTION 46-5
46-5
The Commonwealth Scholarships Guidelines
*Commonwealth scholarships are also dealt with
in the Commonwealth Scholarships Guidelines. The provisions of this Part indicate
when a particular matter is or may be dealt with in these Guidelines.
Note:
The Commonwealth Scholarships Guidelines are made by the Minister under
section 238-10.
SECTION 46-10
46-10
Classes of Commonwealth scholarships
There are 3 classes of *Commonwealth scholarships:
(a)
directly-paid standard scholarships; and
(aa)
indirectly-paid standard scholarships; and
(b)
postgraduate research scholarships.
Note:
The Commonwealth Scholarships Guidelines set out the kinds of scholarships in each class.
History
S 46-10 amended by No 119 of 2007, s 3 and Sch 8 items 8 and 9, by substituting "3 classes" for "2 classes" and substituting paras (a) and (aa) for para (a), 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. Para (a) formerly read:
(a)
standard scholarships; and
SECTION 46-13
46-13
Eligibility of students to receive directly-paid standard Commonwealth scholarships
If:
(a)the Commonwealth Scholarships Guidelines provide for a particular kind of directly-paid standard *Commonwealth scholarship; and
(b)
those guidelines set out eligibility requirements for that kind of scholarship; and
(c)
a student of:
(i)
a *Table A provider; or
(ii)
a higher education provider to which subparagraph 30-1(1)(b)(i) applies;
satisfies those eligibility requirements; and
(d)
the student is selected by the provider to receive that kind of scholarship; and
(e)
the selection is in accordance with a selection policy maintained by that provider; and
(f)
the selection policy complies with the requirements set out in the Commonwealth Scholarships Guidelines;the student is entitled to receive from the Commonwealth that kind of directly-paid standard Commonwealth scholarship.
History
S 46-13 amended by No 104 of 2011,s 3 and Sch 1 item 27, by substituting "subparagraph 30-1(1)(b)(i)" for "subparagraph 30-1(1)(a)(ii)" in para (c)(ii), applicable in relation to the year commencing on 1 January 2012 or a later year.
S 46-13 inserted by No 119 of 2007, s 3 and Sch 8 item 10, 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.
SECTION 46-15
Eligibility of higher education providers to receive grants for certain Commonwealth scholarships
46-15(1)
*Table A providers, and higher education providers to which subparagraph
30-1(1)(b)(i) applies, are eligible to receive a grant from the Commonwealth to pay, as a benefit to students, indirectly-paid standard *Commonwealth scholarships to their students.
History
S 46-15(1) amended by No 104 of 2011,s 3 and Sch 1 item 278, by substituting "subparagraph 30-1(1)(b)(i)" for "subparagraph 30-1(1)(a)(ii)", applicable in relation to the year commencing on 1 January 2012 or a later year.
S 46-15(1) amended by No 119 of 2007, s 3 and Sch 8 item 11, by inserting "indirectly-paid" before "standard", 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.
46-15(2)
*Table A providers and *Table B providers are eligible to receive a grant from the Commonwealth to pay, as a benefit to students, postgraduate research *Commonwealth scholarships to their students.
46-15(3)
A provider that is eligible to receive a grant under subsection (1) or (2) is an
eligible scholarship provider
.
SECTION 46-20
Other matters relating to Commonwealth scholarships
46-20(1)
The Commonwealth Scholarships Guidelines may provide for *Commonwealth scholarships.
46-20(1A)
Without limiting subsection (1), the Commonwealth Scholarships Guidelines may provide for the following matters in relation to directly-paid standard *Commonwealth scholarships:
(a)
the kinds of scholarships that are to be directly-paid standard Commonwealth scholarships;
(b)
the eligibility requirements for each kind of scholarship;
(c)
how the amounts of scholarships are to be determined;
(d)
the indexation of amounts of scholarships, using the method of indexation set out in Part
5-6;
(e)
how scholarships are to be paid;
(f)
the conditions that apply to a particular kind of scholarship;
(g)
the amount, being part of the amount referred to in section
46-40 for a year, that will be spent on each kind of scholarship in that year;
(h)
the indexation of such an amount for subsequent years, using the method of indexation set out in Part
5-6;
(i)
the maximum number of students that a particular higher education provider can select to receive a particular kind of scholarship for a particular year;
(j)
requirements to be complied with by selection policies maintained by higher education providers;
(k)
information that higher education providers are to give the Minister.
History
S 46-20(1A) inserted by No 119 of 2007, s 3 and Sch 8 item 12, 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.
Other Commonwealth scholarships
46-20(2)
Without limiting subsection (1), the Commonwealth Scholarship Guidelines may provide for the following matters in relation to indirectly-paid standard *Commonwealth scholarships and postgraduate research Commonwealth scholarships:
(a)
the kinds of scholarships that are to be indirectly-paid standard Commonwealth scholarships;
(b)
the kinds of scholarships that are to be postgraduate research Commonwealth scholarships;
(c)
which students are eligible for each kind of scholarship;
(e)
the conditions that apply to each kind of scholarship;
(f)
how the amounts of grants to an *eligible scholarship provider are to be determined;
(g)
the amount, being part of the amount referred to in section
46-40 for a year, that will be spent on each kind of scholarship in that year;
(h)
the indexation of such an amount for subsequent years, using the method of indexation set out in Part
5-6;
(i)
how grants to providers are to be made;
(j)
how providers are to determine the amount of each scholarship;
(k)
the indexation of amounts of scholarships, using the method of indexation set out in Part
5-6;
(l)
how providers are to pay scholarships;
(m)
information that providers are to give the Minister, the *Chief Executive Centrelink or a Departmental employee (within the meaning of the
Human Services (Centrelink) Act 1997);
(n)
information that providers are to give to:
(i)
the Repatriation Commission; or
(ii)
the Military Rehabilitation and Compensation Commission; or
(iii)
the Secretary, or an employee, of the Department administered by the Minister who administers the Veterans' Entitlements Act 1986; or
(iv)
the Secretary, or an employee, of the Department administered by the Minister who administers the Military Rehabilitation and Compensation Act 2004.
History
S 46-20 amended by No 32 of 2011, s 3 and Sch 4 item 278, by substituting ", the *Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997)" for "or the Chief Executive Officer, or an *employee, of *Centrelink" in para (m), effective 1 July 2011. No 32 of 2011, s 3 and Sch 5 item 1 contains the following transitional provisions:
1 Transitional regulations
(1)
The Governor General may make regulations in relation to transitional matters arising out of the amendments made by this Act.
(2)
Regulations that are made:
(a)
under subitem (1); and
(b)
within 6 months after the commencement of this item;
may be expressed to take effect at a time that is earlier than the time when the regulations are made. The time must not be earlier than the commencement of this item.
(3)
Subitem (2) has effect despite section 12 of the Legislative Instruments Act 2003.
S 46-20(2) amended by No 17 of 2010, s 3 and Sch 2 item 5, by inserting paras (m) and (n), effective 1 April 2010.
S 46-20(2) amended by No 119 of 2007, s 3 and Sch 8 items 13 to 16, by substituting "the Commonwealth Scholarships Guidelines" for "those guidelines", inserting "in relation to indirectly-paid standard *Commonwealth scholarships and postgraduate research Commonwealth scholarships" after "matters", substituting "indirectly-paid standard Commonwealth scholarships" for "standard scholarships" in para (a) and inserting "Commonwealth" after "research" in para (b), 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.
SECTION 46-25
46-25
Condition of grants
It is a condition of a grant to a higher education provider under this Part that the higher education provider to whom the grant is payable must meet the
*quality and accountability requirements.
History
S 46-25 amended by No 119 of 2007, s 3 and Sch 8 item 17, by inserting "to a higher education provider" after "a grant", 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.
SECTION 46-30
46-30
Amounts payable under this Part
The amount that is payable under this Part
to an *eligible scholarship provider is the amount worked out in accordance
with the Commonwealth Scholarships Guidelines.
SECTION 46-35
Rollover of grant amounts
46-35(1)
If a higher education provider to which a grant (the
original grant
) under this Part has been made in respect of a year fails to spend an amount (the
unspent amount
) of the grant before the end of the year, then:
(a)
unless paragraph
(b) applies - the unspent amount is taken to be granted to the provider under this Part in respect of the next following year; or
(b)
if the *Secretary specifies an amount (not greater than the unspent amount) in relation to the provider and the original grant in a determination under subsection
(1A) - the specified amount is taken to be granted to the provider under this Part in respect of the next following year.
History
S 46-35(1) substituted by No 55 of 2021, s 3 and Sch 1 item 20, applicable in relation to grants made under Part 2-4 of the Higher Education Support Act 2003 on or after 25 June 2021. S 46-35(1) formerly read:
46-35(1)
If:
(a)
a higher education provider to which a grant under this Part has been made fails to spend an amount of that grant; and
(b)
the *Secretary determines in writing that this section is to apply to the provider in respect of that grant;
then so much of the unspent amount as the Secretary specifies is taken to be granted to the provider under this Part in respect of the next following year.
46-35(1A)
The *Secretary may, in writing, make a determination for the purposes of paragraph
(1)(b) specifying an amount in relation to a higher education provider and a grant.
History
S 46-35(1A) inserted by No 55 of 2021, s 3 and Sch 1 item 20, applicable in relation to grants made under Part 2-4 of the Higher Education Support Act 2003 on or after 25 June 2021.
46-35(2)
The amount taken to be granted under subsection
(1) is taken to be granted:
(a)
under the same conditions as the conditions of the original grant - except the grant is taken to be made in respect of the next following year; or
(b)
under such other conditions as are determined by the *Secretary.
History
S 46-35(2) amended by No 55 of 2021, s 3 and Sch 1 item 21, by inserting "taken to be granted under subsection (1)", applicable in relation to grants made under Part 2-4 of the Higher Education Support Act 2003 on or after 25 June 2021.
46-35(3)
Subsection
(1) does not apply to a higher education provider in relation to a grant if the *Secretary specifies the provider in relation to the grant in a determination under subsection
(4).
History
S 46-35(3) inserted by No 55 of 2021, s 3 and Sch 1 item 22, applicable in relation to grants made under Part 2-4 of the Higher Education Support Act 2003 on or after 25 June 2021.
46-35(4)
The *Secretary may, in writing, make a determination for the purposes of subsection
(3) specifying a higher education provider in relation to a grant.
History
S 46-35(4) inserted by No 55 of 2021, s 3 and Sch 1 item 22, applicable in relation to grants made under Part 2-4 of the Higher Education Support Act 2003 on or after 25 June 2021.
46-35(5)
A determination under subsection
(1A) or
(4) is not a legislative instrument.
History
S 46-35(5) inserted by No 55 of 2021, s 3 and Sch 1 item 22, applicable in relation to grants made under Part 2-4 of the Higher Education Support Act 2003 on or after 25 June 2021.
SECTION 46-40
46-40
Maximum payments for Commonwealth scholarships
46-40(1)
The total payments made under this Part in respect of a year referred to in the table must not exceed the amount specified next to that year in the table.
Maximum payments for Commonwealth Scholarships
|
Item
|
Year
|
Amount
|
1 |
2004 |
$124,212,000 |
2 |
2005 |
$151,452,000 |
3 |
2006 |
$179,733,000 |
4 |
2007 |
$209,569,000 |
5 |
2008 |
$239,305,000 |
6 |
2009 |
$290,104,000 |
7 |
2010 |
$304,553,000 |
8 |
2011 |
$316,212,000 |
9 |
2012 |
$319,056,000 |
10 |
2013 |
(a) if paragraph (b) does not apply-$300,217,000; or
(b) if the Minister determines an amount under subsection (2) in respect of 2013-that amount |
11 |
2014 |
(a) if paragraph (b) does not apply-$305,166,000; or
(b) if the Minister determines an amount under subsection (2) in respect of 2014-that amount |
12 |
2015 |
(a) if paragraph (b) does not apply-$307,456,000; or
(b) if the Minister determines an amount under subsection (2) in respect of 2015-that amount |
13 |
2016 |
(a) if paragraph (b) does not apply-$307,329,000; or
(b) if the Minister determines an amount under subsection (2) in respect of 2016-that amount |
14 |
2017 and each later year |
The amount determined by the Minister under subsection (3) in respect of that year |
History
S 46-40(1) renumbered from s 46-40 and amended by No 156 of 2012, s 3 and Sch 1 items 5 and 6, by inserting "(1)" before "The total" and substituting table items 10 to 14 for table items 10 to 12, effective 18 November 2012. Table items 10 to 12 formerly read:
10 |
2013 |
$288,948,000 |
11 |
2014 |
$293,711,000 |
12 |
2015 |
$287,601,000 |
S 46-40 amended by No 178 of 2011, s 3 and Sch 1 item 3, by substituting table items 9 to 12 for table items 9 to 11, effective 5 December 2011. Table items 9 to 11 formerly read:
9 |
2012 |
$307,376,000 |
10 |
2013 |
$278,370,000 |
11 |
2014 |
$278,830,000 |
S 46-40 amended by No 129 of 2010, s 3 and Sch 1 item 3, by substituting table items 7 to 11 for table items 7 to 10, effective 1 December 2010. Table items 7 to 10 formerly read:
7 … 2010 … $301,136,000
8 … 2011 … $315,711,000
9 … 2012 … $303,844,000
10 … 2013 … $275,133,000
S 46-40 amended by No 86 of 2009, s 3 and Sch 1 item 5, by substituting table items 7 to 10 for table items 7 to 9, effective 18 September 2009. Table items 7 to 9 formerly read:
7 … 2010 … $350,366,000
8 … 2011 … $424,457,000
9 … 2012 … $501,640,000
S 46-40 amended by No 43 of 2008, s 3 and Sch 2 item 10, by substituting table items 6 to 9 for table items 6 to 8, effective 25 June 2008. Table items 6 to 8 formerly read:
6 … 2009 … $250,783,000
7 … 2010 … $255,663,000
8 … 2011 … $260,211,000
S 46-40 amended by No 119 of 2007, s 3 and Sch 1 item 3, by substituting table items 5 to 8 for table items 5 to 7, effective 28 June 2007. Table items 5 to 7 formerly read:
5 … 2008 … $218,048,000
6 … 2009 … $219,201,000
7 … 2010 … $220,323,000
S 46-40 amended by No 121 of 2006, s 3 and Sch 1 item 7, by substituting table items 4, 5, 6 and 7 for table items 4, 5 and 6, effective 4 November 2006. Table items 4, 5 and 6 formerly read:
4 … 2007 … $205,460,000
5 … 2008 … $213,772,000
6 … 2009 … $214,902,000
46-40(2)
The Minister may, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2013 but before 1 January 2017.
History
S 46-40(2) inserted by No 156 of 2012, s 3 and Sch 1 item 7, effective 18 November 2012.
46-40(3)
The Minister must, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2017.
History
S 46-40(3) inserted by No 156 of 2012, s 3 and Sch 1 item 7, effective 18 November 2012.
46-40(4)
A determination under subsection (3) for a year must be made before the start of that year.
History
S 46-40(4) inserted by No 156 of 2012, s 3 and Sch 1 item 7, effective 18 November 2012.
46-40(5)
The Minister may, in writing, vary a determination under subsection (2) or (3) for a year at any time before the end of that year.
History
S 46-40(5) inserted by No 156 of 2012, s 3 and Sch 1 item 7, effective 18 November 2012.
PART 2-5 - REDUCTION AND
REPAYMENT OF GRANTS
Division 51 - Introduction
SECTION 51-1
51-1
What this Part is about
Bodies may have their grants reduced, or be required to repay a grant, for breaches of conditions of grants under Part
2-2,
2-2A,
2-3 or
2-4.
Note:
This Part does not apply to Table C providers: see section 5-1.
History
S 51-1 amended by No 74 of 2016, s 3 and Sch 1 item 9, by inserting "2-2A,", effective 1 January 2017.
SECTION 51-5
51-5
The Reduction and Repayment Guidelines
(Repealed by No 93 of 2020)
History
S 51-5 repealed by No 93 of 2020, s 3 and Sch 5 item 6, effective 28 October 2020. S 51-5 formerly read:
SECTION 51-5 The Reduction and Repayment Guidelines
51-5
Reduction and repayment of grants is also dealt with in the Reduction and Repayment Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The Reduction and Repayment Guidelines are made by the Minister under section 238-10.
Division 54 - In what circumstances may a grant be reduced or
required to be repaid?
SECTION 54-1
Decision as to reduction or repayment of a grant
54-1(1)
The Minister may determine:
(a)
that an amount of a grant made, or to be made, to a body under Part
2-2,
2-2A,
2-3 or
2-4 is to be reduced; or
(b)
that an amount of a grant made to a body under Part
2-2,
2-2A,
2-3 or
2-4 is to be repaid to the Commonwealth.
54-1(2)
The Minister may make a determination under subsection (1) if:
(a)
the body breaches a condition of a grant made to the body under Part
2-2,
2-2A,
2-3 or
2-4, whether or not that grant is the grant to be reduced or repaid; an
(b)
the Minister is satisfied that it is appropriate to take that action (see section
54-5); and
(c)
the Minister complies with the requirements of Division
60.
History
S 54-1 amended by No 74 of 2016, s 3 and Sch 1 item 9, by inserting "2-2A," (wherever occurring), effective 1 January 2017.
SECTION 54-5
54-5
Appropriateness of requiring reduction or repayment of grant
Without limiting the matters that the Minister may consider in deciding whether it is appropriate under subsection
54-1(1) to take particular action, the Minister may consider any or all of the following matters:
(a)
whether the breach is of a minor or major nature;
(b)
whether the breach has occurred before and, if so, how often;
(ba)
if the breach is a breach of a condition imposed under section
19-37 - the amount of any adjustment under section
33-37 in relation to that breach, or any other breach by the body, during the same year;
(c)
if the body is a higher education provider-the impact that the breach may have on the body's students;
(d)
if the body is a higher education provider - the impact of the breach on the higher education provided by the body;
(e)
the impact of the breach on Australia's reputation as a provider of high quality higher education;
(f)
(Repealed by No 93 of 2020)
History
S 54-5 amended by No 93 of 2020, s 3 and Sch 5 item 7, by repealing para (f), effective 28 October 2020. Para (f) formerly read:
(f)
any other matter set out in the Reduction and Repayment Guidelines.
Division 57 - What is the amount of a reduction or repayment?
SECTION 57-1
57-1
Reduction in amount of grants
If an amount of a grant is to be reduced under this Part, it must be reduced by an amount determined by the Minister in writing.
History
S 57-1(1) amended by No 93 of 2020, s 3 and Sch 5 item 8, by omitting "(1)". before "If an amount", effective 28 October 2020.
57-1(2)
(Repealed by No 93 of 2020)
History
S 57-1(2) repealed by No 93 of 2020, s 3 and Sch 5 item 9, effective 28 October 2020. S 57-1(2) formerly read:
57-1(2)
The Reduction and Repayment Guidelines may set out requirements about how such an amount is to be determined. The Minister must make his or her determination in accordance with any such requirements.
SECTION 57-5
Amount of the repayment
57-5(1)
If an amount of a grant is to be repaid under this Part, the amount to be repaid is the amount that the Minister determines in writing.
57-5(2)
The amount to be repaid must not exceed the amount of the grant.
57-5(3)
(Repealed by No 93 of 2020)
History
S 57-5(3) repealed by No 93 of 2020, s 3 and Sch 5 item 9, effective 28 October 2020. S 57-5(3) formerly read:
57-5(3)
The Reduction and Repayment Guidelines may set out requirements about how such an amount is to be determined. The Minister must make his or her determination in accordance with any such requirements.
57-5(4)
The amount to be repaid is a debt owed to the Commonwealth by the body to which the grant was paid.
Division 60 - How are decisions reducing a grant or requiring
repayment of a grant made?
SECTION 60-1
Procedure prior to decision
60-1(1)
Before
making a decision under paragraph
54-1(a) or
(b) in respect of a body, the Minister must give to the body notice in writing:
(a)
stating that the Minister is considering
reducing the body's grant, or requiring the repayment of a grant made to the
body, as the case may be; and
(b)
stating
the amount of the proposed reduction or repayment and the reasons why the
Minister is considering taking that action; and
(c)
inviting the body to make written submissions to the Minister
within 28 days on either or both of the following matters:
(i)
why that action should not be taken;
(ii)
why the amount of the proposed reduction
or repayment should be reduced; and
(d)
informing the body that, if no submission
is received under paragraph (c) within the time required, the action will
take effect on the day after the last day for making submissions.
60-1(2)
In
deciding whether to take the action, the Minister must consider any submissions
received from the body within the 28 day period.
SECTION 60-5
Notification of decision
60-5(1)
The
Minister must notify the body in writing of his or her decision on whether
or not to take the action. The notice:
(a)
must
be in writing; and
(b)
if
a submission was received from the body within the 28 day period - must
specify the day that the decision is to take effect; and
(c)
must be given within the period of 28 days
following the period in which submissions may have been given to the Minister
under subsection
60-1(1).
60-5(2)
If
no notice is given within the period provided for in paragraph (1)(c), the
Minister is taken to have decided not to take the action.
SECTION 60-10
60-10
When a decision takes effect
If the Minister's decision is to take the
action, the decision takes effect:
(a)
if
no submission was made under subsection
60-1(1) -
on the day after the last day for making submissions; or
(b)
if such a submission was made - on the
day specified in the notice under subsection
60-5(1).
Chapter 3 - Assistance to students
Division 65 - Introduction
SECTION 65-1
65-1
What this Chapter is about
This Chapter deals with a person's Student Learning Entitlement and provides for 5 kinds of assistance that the Commonwealth provides to students.
Note:
The Commonwealth meets all or part of the higher education costs of students who are enrolled in places funded under Part 2-2.
A person may be entitled to HECS-HELP assistance for a unit of study for which the person is a Commonwealth supported student if, among other things, the unit is covered by the person's Student Learning Entitlement. Part 3-1 deals with a person's Student Learning Entitlement.
The 5 kinds of assistance available under this Chapter are:
• HECS-HELP assistance - assistance to meet a student's liability to pay student contribution amounts for units of study that are Commonwealth supported (see Part 3-2);
• FEE-HELP assistance-assistance to meet a student's liability to pay tuition fees for units of study that are not Commonwealth supported (see Part 3-3);
• OS-HELP assistance - assistance to a student who, as part of his or her course of study, is to undertake study overseas (see Part 3-4);
• SA-HELP assistance - assistance to a student on whom a student services and amenities fee is imposed (see Part 3-5); and
• STARTUP-HELP assistance - assistance to a student undertaking an accelerator program course (see Part 3-7).
The Commonwealth pays the assistance to the relevant higher education provider either (in the case of HECS-HELP assistance, FEE-HELP assistance, SA-HELP assistance and STARTUP-HELP assistance) to discharge the student's liability, or (in the case of OS-HELP assistance) to pay to students on the Commonwealth's behalf.
The assistance is (in most cases) in the form of a loan from the Commonwealth to the student.
Note:
Chapter 4 deals with the repayment of loans made under this Chapter.
History
S 65-1 amended by No 36 of 2023, s 3 and Sch 1 items 19-21, by substituting "5 kinds of assistance" for "4 kinds of assistance" (wherever occurring), "• SA-HELP assistance - assistance to a student on whom a student services and amenities fee is imposed (see Part 3-5); and • STARTUP-HELP assistance - assistance to a student undertaking an accelerator program course (see Part 3-7)." for "• SA-HELP assistance - assistance to a student on whom a student services and amenities fee is imposed (see Part 3-5)." and ", SA-HELP assistance and STARTUP-HELP assistance" for "and SA-HELP assistance", effective 29 June 2023.
S 65-1 amended by No 93 of 2020, s 3 and Sch 4B item 5, by substituting "This Chapter deals with a person's Student Learning Entitlement and provides for 4 kinds of assistance that the Commonwealth provides to students. Note: The Commonwealth meets all or part of the higher education costs of students who are enrolled in places funded under Part 2-2. A person may be entitled to HECS-HELP assistance for a unit of study for which the person is a Commonwealth supported student if, among other things, the unit is covered by the person's Student Learning Entitlement. Part 3-1 deals with a person's Student Learning Entitlement." for "This Chapter provides for 4 kinds of assistance that the Commonwealth provides to students. Note: The Commonwealth meets all or part of the higher education costs of students who are enrolled in places funded under Part 2-2.", effective 1 January 2022.
S 65-1 amended by No 112 of 2013, s 3 and Sch 1 item 1, by substituting "at an overseas higher education institution" for "overseas", effective 30 June 2013. For application provisions see note under s 121-1.
S 65-1 amended by No 130 of 2011, s 3 and Sch 1 items 7 to 9, by substituting "4 kinds" for "3 kinds" (wherever occurring), substituting the items beginning with "OS-HELP assistance" and "SA-HELP assistance" for the item beginning with "OS-HELP assistance" and substituting ", FEE-HELP assistance and SA-HELP assistance)" for "and FEE-HELP assistance)", effective 1 January 2012. The item beginning with "OS-HELP assistance" formerly read:
• OS-HELP assistance - assistance to a student who, as part of his or her course of study, is to undertake study at an overseas higher education institution (see Part 3.4).
S 65-1 amended by No 104 of 2011, s 3 and Sch 2 items 12 and 13, by omitting "the Student Learning Entitlement and for" after "This Chapter provides for " and "A sufficient Student Learning Entitlement is required for a student to access HECS-HELP assistance under this Chapter. It also enables a student to access places that are funded under Part 2-2 (Commonwealth Grant Scheme)." after "Commonwealth provides to students.", 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.
PART 3-1 - STUDENT LEARNING ENTITLEMENT
History
Pt 3-1 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former Pt 3-1 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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.
Division 70 - Introduction
History
Div 70 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former Div 70 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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.
SECTION 70-1
70-1
What this Part is about
A person may be entitled to HECS-HELP assistance for a unit of study for which the person is a Commonwealth supported student if, among other things, the unit is covered by the person's Student Learning Entitlement.
Broadly speaking, a person will start with an SLE amount that is equivalent to 7 years of full-time study. However, the person's SLE amount may be added to for the purposes of certain courses of study or in certain circumstances.
A person's SLE amount is reduced as the person undertakes units of study as a Commonwealth supported student. A unit of study undertaken as part of an enabling course does not reduce the person's SLE amount. The person's SLE amount may also be re-credited in certain circumstances.
History
S 70-1 amended by No 64 of 2022, s 3 and Sch 1 item 11, by substituting "A person's SLE amount is reduced as the person undertakes units of study as a Commonwealth supported student. A unit of study undertaken as part of an enabling course does not reduce the person's SLE amount. The person's SLE amount may also be re-credited in certain circumstances." for "A person's SLE amount is reduced as the person undertakes units of study as a Commonwealth supported student. The person's SLE amount may also be re-credited in certain circumstances.", effective 30 November 2022.
S 70-1 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former s 70-1 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 70-1 formerly read:
SECTION 70-1 What this Part is about
70-1
Student Learning Entitlement (or SLE) is needed for many of the forms of assistance under this Act. In these cases, units of study that a person enrols in must be covered by the person's SLE.
Broadly speaking, a person starts with an SLE equivalent to 7 years of full-time study. This is reduced as the person undertakes units of study as a Commonwealth supported student (but it can be re-credited in some circumstances).
SECTION 70-5
70-5
The Student Learning Entitlement Guidelines
*Student Learning Entitlement is also dealt with in the Student Learning Entitlement Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The Student Learning Entitlement Guidelines are made by the Minister under section 238-10.
History
S 70 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former s 70-5 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 70-5 formerly read:
SECTION 70-5 The Student Learning Entitlement Guidelines
70-5
*Student Learning Entitlement is also dealt with in the Student Learning Entitlement Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The Student Learning Entitlement Guidelines are made by the Minister under section 238-10.
Division 73 - Student Learning Entitlement and SLE amount
History
Div 73 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former Div 73 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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.
SECTION 73-1
Student Learning Entitlement and SLE amount
73-1(1)
A person's
Student Learning Entitlement
is an entitlement that consists of:
(a)
*ordinary SLE that the person has; and
(b)
any *additional SLE that the person has; and
(c)
any *lifelong SLE that the person has.
73-1(2)
A person's
SLE amount
at a particular time is the sum of the following amounts:
(a)
the amount of *ordinary SLE that the person has under subsection
73-5(3);
(b)
the amount of any *additional SLE that the person has under subsection
73-10(3);
(c)
the amount of any *lifelong SLE that the person has under subsection
73-15(3);
taking into account any reduction that has occurred before that time under Division 76 and any re-crediting that has occurred before that time under amount Division 79.
History
S 73-1 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former s 73-1 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 73-1 formerly read:
SECTION 73-1 A person's Student Learning Entitlement
73-1
A person's
Student Learning Entitlement
is the sum of:
(a)
the *ordinary SLE that the person has under section 73-5; and
(b)
any *additional SLE that the person has under section 73-20; and
(c)
any *life long SLE that the person has under section 73-22;
taking into account any reductions in the person's *SLE under Division 76 and any re-crediting of the person's SLE under Division 79.
SECTION 73-5
Ordinary SLE
Persons who have ordinary SLE
73-5(1)
If a person is an *eligible person on 1 January 2022, the person has, on that day, ordinary SLE.
73-5(2)
If a person becomes (by birth or otherwise) an *eligible person on a day after 1 January 2022, the person has, on the earliest such day, ordinary SLE.
Amount of ordinary SLE
73-5(3)
The amount of *ordinary SLE that the person has on the day referred to in subsection
(1) or
(2) (as the case may be) is an amount equal to 7 *EFTSL.
Eligible person
73-5(4)
An
eligible person
is:
(a)
an Australian citizen; or
(b)
a citizen of New Zealand; or
(c)
a *permanent visa holder.
History
S 73-5 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former s 73-5 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 73-5 formerly read:
SECTION 73-5 Ordinary SLE
Ordinary SLE accruing on 1 January 2005
73-5(1)
A person who is an *eligible person on 1 January 2005 has, on that day, an *ordinary SLE equal to 7 *EFTSL.
Ordinary SLE accruing after 1 January 2005
73-5(2)
Any other person who (by birth or otherwise) becomes an *eligible person on a day after 1 January 2005 has on the earliest such day an *ordinary SLE equal to 7 *EFTSL.
Meaning of
eligible person
73-5(3)
An
eligible person
is:
(a)
an Australian citizen; or
(b)
a citizen of New Zealand; or
(c)
a *permanent visa holder.
SECTION 73-10
Additional SLE
73-10(1)
A person has additional SLE if:
(a)
the person is enrolled in a *course of study with a higher education provider; and
(b)
the course is specified, or is a course of a kind specified, in the Student Learning Entitlement Guidelines for the purposes of this paragraph; and
(c)
the person meets any other requirements specified in the Student Learning Entitlement Guidelines.
73-10(2)
The person has *additional SLE on the day that the person enrols in the *course of study.
73-10(3)
The amount of *additional SLE that the person has on that day is an amount (expressed in *EFTSL) worked out in accordance with the Student Learning Entitlement Guidelines.
History
S 73-10 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former s 73-10 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 73-10 formerly read:
SECTION 73-10 Meaning of
EFTSL
73-10(1)
An
EFTSL
is an equivalent full-time student load for a year. It is a measure, in respect of a *course of study, of the study load for a year of a student undertaking that course of study on a full-time basis.
73-10(2)
A particular amount of EFTSL is an amount of study, undertaken with a higher education provider as part of a *course of study, represented by units of study with *EFTSL values the sum of which equals that amount.
SECTION 73-15
Lifelong SLE
73-15(1)
A person has lifelong SLE in the circumstances specified in the Student Learning Entitlement Guidelines.
73-15(2)
The person has *lifelong SLE on the day specified in the Student Learning Entitlement Guidelines.
73-15(3)
The amount of *lifelong SLE that a person has on that day is an amount (expressed in *EFTSL) worked out in accordance with the Student Learning Entitlement Guidelines.
History
S 73-15 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former s 73-15 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 73-15 formerly read:
SECTION 73-15 Meaning of
EFTSL value
73-15(1)
The
EFTSL value
of a unit of study is the value that the higher education provider with which the unit may be undertaken determines in writing to be the EFTSL value of the unit, expressed as a fraction of one *EFTSL.
73-15(2)
If the unit can form part of more than one *course of study, the provider may determine an EFTSL value of the unit for each such course.
73-15(3)
If a unit of study is subject to separate determinations in relation to different *courses of study, a reference in this Act to the EFTSL value of the unit is, when the unit forms part of such a course, a reference to the EFTSL value of the unit determined under subsection (2) for the course.
73-15(4)
Determinations under this section must be in accordance with any requirements set out in the Student Learning Entitlement Guidelines.
SECTION 73-20
73-20
Student Learning Entitlement is not transferable
A person's *Student Learning Entitlement cannot be transferred to, or used by, another person.
History
S 73-20 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former s 73-20 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 73-20 formerly read:
SECTION 73-20 Additional SLE
73-20(1)
A person has an *additional SLE if:
(a)
the person is enrolled in a *course of study with a higher education provider; and
(b)
the course is specified, or is a course of a kind specified, in the Student Learning Entitlement Guidelines as a course or kind of course to which additional SLE applies; and
(c)
the person meets any other requirements, relating to additional SLE, set out in the Student Learning Entitlement Guidelines.
73-20(2)
The person is taken to have had the *additional SLE from the time immediately before he or she enrolled in the *course of study.
73-20(3)
The amount of the *additional SLE is an amount (expressed in *EFTSL) worked out in accordance with the Student Learning Entitlement Guidelines.
SECTION 73-22
73-22
Life long SLE
(Repealed by No 104 of 2011)
History
S 73-22 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 73-22 formerly read:
SECTION 73-22 Life long SLE
73-22(1)
A person has a *life long SLE in the circumstances specified in the Student Learning Entitlement Guidelines.
73-22(2)
The amount of the *life long SLE is an amount (expressed in *EFTSL) worked out in accordance with the Student Learning Entitlement Guidelines.
SECTION 73-25
Ceasing to be an eligible person
73-25(1)
A person ceases to have *Student Learning Entitlement if the person ceases to be an *eligible person.
73-25(2)
If a person who ceased to be an *eligible person at a particular time (the
cessation time
) becomes an eligible person again at a later time, the person has, at that later time, the same *SLE amount (if any) that the person had at the cessation time.
History
S 73-25 inserted by No 93 of 2020, s 3 and Sch 4B item 6, effective 1 January 2022.
Former s 73-25 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 73-25 formerly read:
SECTION 73-25 SLE not transferable
73-25
A person's *SLE cannot be transferred to, or used by, another person.
SECTION 73-30
73-30
Ceasing to be an eligible person
(Repealed by No 104 of 2011)
History
S 73-30 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 73-30 formerly read:
SECTION 73-30 Ceasing to be an eligible person
73-20(1)
A person ceases to have an *SLE if he or she ceases to be an *eligible person.
73-20(2)
If a person:
(a)
had previously ceased to be an *eligible person; and
(b)
becomes an eligible person again;
on becoming an eligible person again, the person has the same *SLE (if any) that he or she had immediately before the last time on which he or she ceased to be an eligible person.
Division 76 - Reduction of a person's SLE amount
History
Div 76 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former Div 76 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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.
SECTION 76-1
Reduction of a person's SLE amount
76-1(1)
A higher education provider must, on the *Secretary's behalf, reduce a person's *SLE amount at a particular timeif:
(a)
the person enrolled in a unit of study as part of a *course of study (other than an *enabling course) with the provider; and
(b)
at the end of the *census date for the unit, the person remained so enrolled; and
(c)
the person is a *Commonwealth supported student in relation to the unit; and
(d)
the unit is not:
(i)
an *ineligible work experience unit for the person; or
(ii)
a *replacement unit; and
(e)
the person has, on or before the census date for the unit, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance in relation to:
(i)
the unit; or
(ii)
where the course of study of which the unit forms a part is undertaken with the provider - the course of study.
Note:
A person's SLE amount must be re-credited in certain circumstances: see Division 79.
History
S 76-1(1) amended by No 64 of 2022, s 3 and Sch 1 item 12, by inserting "(other than an *enabling course)" in para (a), effective 30 November 2022 and applicable in relation to an enabling course whether the course is provided before or after 30 November 2022.
76-1(2)
The amount of the reduction is an amount equal to the *EFTSL value of the unit of study.
76-1(3)
The reduction takes effect immediately after the *census date for the unit of study.
76-1(4)
If a higher education provider reduces a person's *SLE amount at a particular time under subsection
(1), the provider must, in accordance with the Student Learning Entitlement Guidelines and on the *Secretary's behalf, reduce any one or more of the following amounts to take account of the reduction under that subsection:
(a)
an amount of *ordinary SLE (if any) that the person has at that time;
(b)
an amount of *additional SLE (if any) that the person has at that time;
(c)
an amount of *lifelong SLE (if any) that the person has at that time.
76-1(5)
If a higher education provider is unable to act for the purposes of subsection
(1) or
(4), the *Secretary may act as if any one or more of the references in that subsection to the provider were a reference to the Secretary.
History
S 76-1 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former s 76-1 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 76-1 formerly read:
SECTION 76-1 Reducing a person's SLE
76-1(1)
A person's *SLE is reduced if:
(a)
at the end of the *census date for a unit of study with a higher education provider, the person is enrolled in the unit; and
(b)
the person is enrolled in the unit as part of a *course of study (other than an *enabling course); and
(c)
the person is a *Commonwealth supported student in relation to the unit; and
(d)
the person has, on or before the census date, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance in relation to:
(i)
the unit; or
(ii)
where the course of study of which the unit forms a part is undertaken with the provider - the course of study.
76-1(2)
The amount of the reduction is an amount equal to the *EFTSL value of the unit of study.
76-1(3)
The reduction takes effect immediately after the *census date for the unit of study.
76-1(4)
This section does not apply if the unit of study consists wholly of *work experience in industry.
76-1(5)
This section does not apply to a unit that is a replacement unit within the meaning of the *tuition assurance requirements.
Note 1:
There are special rules for reduction of a person's additional SLE or life long SLE: see sections 76-5 and 76-10.
Note 2:
A person's SLE can be re-credited in some circumstances: see Division 79.
SECTION 76-5
76-5
Reducing a person's additional SLE
(Repealed by No 104 of 2011)
History
S 76-5 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 76-5 formerly read:
SECTION 76-5 Reducing a person's additional SLE
76-5(1)
If a person has an *additional SLE, that additional SLE is not reduced under section 76-1 in relation to a unit of study unless:
(a)
the person's *ordinary SLE is less than the *EFTSL value of the unit; and
(b)
the person is enrolled in the unit as part of the *course of study in relation to which the additional SLE applies.
76-5(2)
If:
(a)
a person has both an *additional SLE and *ordinary SLE; and
(b)
the ordinary SLE is insufficient to *cover a unit of study in which the person is enrolled;
then, in reducing the person's *SLE under section 76-1 to take account of the unit:
(c)
the person's ordinary SLE is reduced to zero; and
(d)
the person's additional SLE is reduced only to the extent that the ordinary SLE is insufficient to cover the unit.
SECTION 76-10
76-10
Reducing a person's life long SLE
(Repealed by No 104 of 2011)
History
S 76-10 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 76-10 formerly read:
SECTION 76-10 Reducing a person's life long SLE
76-10(1)
If a person has a *life long SLE, that life long SLE is not reduced under section 76-1 in relation to a unit of study unless:
(a)
if the person does not have an *additional SLE - the person's *ordinary SLE is less than the *EFTSL value of the unit; and
(b)
if the person has an additional SLE - the sum of the person's ordinary SLE and the person's additional SLE is less than the EFTSL value of the unit.
76-10(2)
If:
(a)
a person has both:
(i)
a *life long SLE; and
(ii)
an *ordinary SLE or an *additional SLE, or both; and
(b)
the ordinary SLE or additional SLE is insufficient (or the ordinary SLE and additional SLE taken together are insufficient) to *cover a unit of study in which the person is enrolled;
then, in reducing the person's *SLE under section 76-1 to take account of the unit:
(c)
the person's ordinary SLE or additional SLE is reduced (or both the person's ordinary SLE and the person's additional SLE are reduced) to zero; and
(d)
the person's life long SLE is reduced only to the extent that the ordinary SLE or additional SLE is insufficient (or the ordinary SLE and additional SLE taken together are insufficient) to cover the unit.
Division 79 - Re-crediting a person's SLE amount
History
Div 79 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former Div 79 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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.
Subdivision 79-A - Re-crediting a person's SLE amount in special circumstances
History
Subdiv 79-A inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former Subdiv 79-A repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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.
SECTION 79-1A
79-1A
Application of this Subdivision
(Repealed by No 104 of 2011)
History
S 79-1A repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 79-1A formerly read:
SECTION 79-1A Application of this Subdivision
79-1A
If Subdivision 79-B applies to re-credit a person's *SLE with an amount equal to the *EFTSL value of a unit of study, then this Subdivision does not apply in relation to that unit.
SECTION 79-1
Re-crediting a person's SLE amount if special circumstances apply to the person
79-1(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *SLE amount at a particular time with an amount equal to the *EFTSL value of a unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and
(c)
the unit is not:
(i)
an *ineligible work experience unit for the person; or
(ii)
a *replacement unit; and
(d)
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
(e)
one or more *up-front payments have been made in relation to the unit and the amount of that payment, or the sum of those payments, is equal to 100% of the person's *student contribution amount for the unit; and
(f)
the provider is satisfied that special circumstances apply to the person (see section
79-5); and
(g)
the person applies, in writing, to the provider for the re-crediting of the person's SLE amount; and
(h)
either:
(i)
the application is made before the end of the application period for the application under section 79-10; or
(ii)
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.
Note:
It is a condition of a grant to the provider under Part 2-2 that the provider repay certain amounts relating to the unit: see section 36-24BA.
History
S 79-1(1) amended by No 64 of 2022, s 3 and Sch 4 item 5, by substituting "100%" for "90%" in para (e), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023.
79-1(2)
If a higher education provider re-credits a person's *SLE amount at a particular time under subsection
(1), the provider must, in accordance with the Student Learning Entitlement Guidelines and on the *Secretary's behalf, re-credit any one or more of the following amounts to take account of the re-credit under that subsection:
(a)
an amount of *ordinary SLE (if any) that the person has at that time;
(b)
an amount of *additional SLE (if any) that the person has at that time;
(c)
an amount of *lifelong SLE (if any) that the person has at that time.
Note:
A refusal to re-credit one or more of those amounts is reviewable under Part 5-7.
79-1(3)
If a higher education provider is unable to act for any one or more of the purposes of subsection
(1) or
(2), or section
79-5,
79-10 or
79-15, the *Secretary may act as if any one or more of the references in those provisions to the provider were a reference to the Secretary.
History
S 79-1 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former s 79-1 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 79-1 formerly read:
SECTION 79-1 Main case of re-crediting a person's SLE
79-1(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *SLE with an amount equal to the *EFTSL value of a unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(aa)
the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and
(ab)
the unit does not wholly consist of *work experience in industry; and
(b)
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
(c)
the provider is satisfied that special circumstances apply to the person (see section 79-5); and
(d)
the person applies in writing to the provider for re-crediting of the SLE; and
(e)
either:
(i)
the application is made before the end of the application period under section 79-10; or
(ii)
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.
Note:
A HECS-HELP debt relating to a unit of study will be remitted if the SLE in relation to the unit is re-credited: see subsection 137-5(4). In addition, it is a condition of the higher education provider's funding under Part 2-2 that payments for the unit must be repaid: see section 36-20.
History
S 79-1(1) amended by No 72 of 2007, s 3 and Sch 8 item 4, 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 (aa), effective 28 May 2007.
79-1(2)
If the provider is unable to act for any one or more of the purposes of subsection (1), or section 79-5, 79-10 or 79-15, the *Secretary may act as if any one or more of the references in those provisions to the provider were a reference to the Secretary.
SECTION 79-5
Special circumstances
79-5(1)
For the purposes of paragraph
79-1(1)(f), special circumstances apply to a person who made an application under paragraph
79-1(1)(g) for the re-crediting of the person's *SLE amount if, and only if, the higher education provider receiving the application is satisfied that circumstances apply to the person that:
(a)
are beyond the person's control; and
(b)
do not make their full impact on the person until on or after the *census date for the unit of study in question; and
(c)
make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.
79-5(2)
The Student Learning Entitlement Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph
(1)(a),
(b) or
(c). A decision of a higher education provider under subsection
(1) must be in accordance with any such guidelines.
History
S 79-5 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former s 79-5 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 79-5 formerly read:
SECTION 79-5 Special circumstances
79-5(1)
For the purposes of paragraph 79-1(1)(c), 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:
(a)
are beyond the person's control; and
(b)
do not make their full impact on the person until on or after the *census date for the unit of study in question; and
(c)
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.
79-5(2)
The Student Learning Entitlement Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.
Note:
Guidelines made for the purposes of this subsectionalso have effect for the purposes of subsection 36-22(4) (repayments etc. for work experience units) and subsection 104-30(2) (re-crediting a person's FEE-HELP balance).
SECTION 79-10
Application period
79-10(1)
If:
(a)
the person who applied under paragraph
79-1(1)(g) for the re-crediting of the person's *SLE amount with an amount equal to the *EFTSL value of a unit of study has withdrawn the person's enrolment in the unit with a higher education provider; and
(b)
the provider gives notice to the person that the withdrawal has taken effect;
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.
79-10(2)
If subsection
(1) does not apply, the application period for an application made under paragraph
79-1(1)(g) is the period of 12 months after the end of the period during which the applicant undertook, or was to undertake, the unit of study.
History
S 79-10 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former s 79-10 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 79-10 formerly read:
SECTION 79-10 Application period
79-10(1)
If:
(a)
the person applying under paragraph 79-1(1)(d) for the re-crediting of the person's *SLE in relation to a unit of study has withdrawn his or her enrolment in the unit; and
(b)
the higher education provider gives notice to the person that the withdrawal has taken effect;
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.
79-10(2)
If subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.
SECTION 79-15
Dealing with applications
79-15(1)
If:
(a)
an application is made to a higher education provider under paragraph
79-1(1)(g) before the end of the application period for the application under section
79-10; or
(b)
a higher education provider waives the requirement that an application made to the provider under that paragraph 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;
the provider must, as soon as practicable, consider the application and notify the applicant of the decision on the application.
79-15(2)
The notice must include a statement of the reasons for the decision.
Note:
Refusals of applications are reviewable under Part 5-7.
History
S 79-15 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former s 79-15 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 79-15 formerly read:
SECTION 79-15 Dealing with applications
79-15(1)
If:
(a)
the application is made before the end of the application period under section 79-10; or
(b)
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;
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.
79-15(2)
The notice must include a statement of the reasons for the decision.
Note:
Refusals of applications are reviewable under Part 5-7.
Subdivision 79-B - Re-crediting a person's SLE amount if the person's HELP balance is re-credited
History
Subdiv 79-B inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former Subdiv 79-B repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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.
SECTION 79-20
Re-crediting a person's SLE amount if the person's HELP balance is re-credited
79-20(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *SLE amount at a particular time with an amount equal to the *EFTSL value of a unit of study if the person's *HELP balance is re-credited under any of the following provisions with an amount equal to the amount of *HECS-HELP assistance that the person received for the unit of study:
(a)
subsection
97-25(2) (which deals with the main case of re-crediting a person's HELP balance);
(b)
subsection
97-27(1) (which deals with the re-crediting of a person's HELP balance if the person does not have a tax file number);
(c)
subsection
97-42(1) (which deals with the re-crediting of a person's HELP balance if a higher education provider defaults);
(d)
subsection
97-45(1) (which deals with the re-crediting of a person's HELP balance if a higher educationprovider completes a *request for Commonwealth assistance);
(e)
subsection
97-50(1) (which deals with the re-crediting of a person's HELP balance if the person was not entitled to assistance).
79-20(2)
If a higher education provider re-credits a person's *SLE amount at a particular time under subsection
(1), the provider must, in accordance with the Student Learning Entitlement Guidelines and on the *Secretary's behalf, re-credit any one or more of the following amounts to take account of the re-credit under that subsection:
(a)
an amount of *ordinary SLE (if any) that the person has at that time;
(b)
an amount of *additional SLE (if any) that the person has at that time;
(c)
an amount of *lifelong SLE (if any) that the person has at that time.
79-20(3)
If a higher education provider is unable to act for the purposes of subsection
(1) or
(2), the *Secretary may act as if any one or more of the references in that subsection to the provider were a reference to the Secretary.
History
S 79-20 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former s 79-20 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 79-20 formerly read:
SECTION 79-20 Re-crediting a person's SLE if provider ceases to provide course of which unit forms part
79-20(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *SLE with an amount equal to the *EFTSL value of a unit of study if:
(a)
the person has been enrolled in the unit as part of a *course of study with the provider; and
(b)
the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and
(ba)
the unit does not wholly consist of *work experience in industry; and
(c)
the *tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and
(d)
the person chose the option designated under the tuition assurance requirements as student contribution/tuition fee repayment in relation to the unit.
Note:
A HECS-HELP debt relating to a unit of study will be remitted if the SLE in relation to the unit is re-credited: see subsection 137-5(4). In addition, it is a condition of the higher education provider's funding under Part 2-2 that payments for the unit must be repaid: see section 36-20.
79-20(2)
The *Secretary may re-credit the person's *SLE under subsection (1) if the provider is unable to do so.
Subdivision 79-C - Students without tax file numbers
History
Subdiv 79-C repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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.
SECTION 79-25
79-25
Re-crediting a person's SLE - no tax file number
(Repealed by No 104 of 2011)
History
S 79-25 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 79-25 formerly read:
SECTION 79-25 Re-crediting a person's SLE - no tax file number
79-25(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *SLE with an amount equal to the *EFTSL value of a unit of study if:
(a)
the provider cancels the person's enrolment in the unit under subsection 193-5(1); and
(b)
the unit does not wholly consist of *work experience in industry.
Note:
A HECS-HELP debt relating to a unit of study will be remitted if the SLE in relation to the unit is re-credited: see subsection 137-5(4). In addition, it is a condition of the higher education provider's funding under Part 2-2 that payments for the unit must be repaid: see section 36-20.
79-25(2)
The *Secretary may re-credit the person's *SLE under subsection (1) if the provider is unable to do so.
Division 82 - Unit of study covered by a person's Student Learning Entitlement
History
Div 82 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former Div 82 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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.
SECTION 82-1
Unit of study covered by a person's Student Learning Entitlement - person's SLE amount not exceeded at enrolment
Person enrolled in one unit of study only
82-1(1)
A unit of study is
covered by a person's Student Learning Entitlement
if:
(a)
the person enrolled in the unit (the
relevant unit
) as a part of a *course of study with a higher education provider; and
(b)
at the time of that enrolment, the person had not enrolled in any other units of study as a part of that course, or as a part of another course of study, with that provider or with another higher education provider that have *census dates that will occur after that time; and
(c)
the *EFTSL value of the relevant unit does not exceed the person's *SLE amount as at that time; and
(d)
if:
(i)
the person's SLE amount as at that time includes an amount of *additional SLE in relation to a particular course of study; and
(ii)
the EFTSL value of the relevant unit exceeds the amount worked out by subtracting that amount of additional SLE from the person's SLE amount as at that time;
the person enrolled in the relevant unit as a part of that particular course of study.
Person enrolled in more than one unit of study
82-1(2)
A unit of study is
covered by a person's Student Learning Entitlement
if:
(a)
the person enrolled in the unit (the
relevant unit
) as a part of a *course of study with a higher education provider; and
(b)
at the time of that enrolment, the person had also enrolled in one or more other units of study as a part of that course, or as a part of another course of study, with that provider or with another higher education provider; and
(c)
those other units have *census dates that will occur after that time; and
(d)
the person is a *Commonwealth supported student in relation to each of those other units; and
(e)
the sum of the following does not exceed the person's *SLE amount as at that time:
(i)
the *EFTSL value of the relevant unit;
(ii)
the sum of the EFTSL values of each of those other units; and
(f)
if:
(i)
the person's SLE amount as at that time includes an amount of *additional SLE in relation to a particular course of study; and
(ii)
the EFTSL value of the relevant unit exceeds the amount worked out by subtracting that amount of additional SLE from the person's SLE amount as at that time;
the person enrolled in the relevant unit as a part of that particular course of study.
History
S 82-1 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former s 82-1 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 82-1 formerly read:
SECTION 82-1 General rule
82-1
A unit of study is
covered
by a person's *SLE if:
(a)
the person enrols in the unit as part of a *course of study with a higher education provider; and
(b)
the *EFTSL value of the unit does not exceed the amount of the person's SLE that is *available to the person at the time of enrolment in the unit.
SECTION 82-5
Unit of study covered by a person's Student Learning Entitlement - person's SLE amount exceeded at enrolment
82-5(1)
This section applies if:
(a)
the person enrolled in unit of study (the relevant unit) as a part of a *course of study with a higher education provider (the
relevant provider
); and
(b)
at the time of that enrolment (the
enrolment time
), the person had also enrolled in one or more other units of study as a part of that course, or as a part of another course of study, with the relevant provider or with another higher education provider; and
(c)
those other units have *census dates that will occur after the enrolment time; and
(d)
the person is a *Commonwealth supported student in relation to each of those other units; and
(e)
the sum of the following exceeds the person's *SLE amount as at the enrolment time:
(i)
the *EFTSL value of the relevant unit;
(ii)
the sum of the EFTSL values of each of those other units.
82-5(2)
The relevant unit is
covered by a person's Student Learning Entitlement
if:
(a)
the person notifies an *appropriate officer of the relevant provider that the person does not wish to be a *Commonwealth supported student in relation to one or more of those other units of study (the
excluded units
); and
(b)
the sum of the following does not exceed the person's *SLE amount as at the enrolment time:
(i)
the *EFTSL value of the relevant unit;
(ii)
the sum of the EFTSL values of each of those other units that are not excluded units; and
(c)
if:
(i)
the person's SLE amount as at that time includes an amount of *additional SLE in relation to a particular course of study; and
(ii)
the EFTSL value of the relevant unit exceeds the amount worked out by subtracting that amount of additional SLE from the person's SLE amount as at that time;
the person enrolled in the relevant unit as a part of that particular course of study.
82-5(3)
A notice under paragraph (2)(a) must be given:
(a)
in writing; and
(b)
on or before the *census date for the relevant unit.
History
S 82-5 inserted by No 93 of 2020, s 3 and Sch 4B item 6, 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).
Former s 82-5 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 82-5 formerly read:
SECTION 82-5 Availability of a person's SLE
82-5
The amount of a person's *SLE that is
available
to the person at a particular time is the difference between:
(a)
the amount of the person's SLE at that time; and
(b)
the sum of the *EFTSL values of all of the units of study (if any) in which the person is enrolled, each of which is a unit of study:
(i)
the *census date for which will occur later than that time; and
(ii)
that was *covered by the person's SLE at the time of enrolment; and
(iii)
in relation to which the person is a *Commonwealth supported student.
Example:
Assume that Alan has an SLE of 0.75 EFTSL on a day on which he enrols as a Commonwealth supported student in 2 units of study with one higher education provider (total EFTSL value of 0.25 EFTSL), and in 3 units of study with another higher educationprovider (total EFTSL value of 0.38 EFTSL). Assume further that the census dates for all of the units are later days.
The amount of SLE that is available to Alan following the enrolments is:
0.75 EFTSL − (0.25 EFTSL + 0.38 EFTSL) = 0.12 EFTSL |
Note that Alan still has an SLE of 0.75 EFTSL, which is unaffected until the first of the census dates for the units. However, only 0.12 EFTSL can be applied to further enrolments.
If Alan wanted to enrol in another unit of study with an EFTSL value of 0.125, the unit would not be covered by the person's SLE.
Alan could not be a Commonwealth supported student in relation to the other unit unless, before the census date for one of the units (with an EFTSL value of at least 0.05) in which he is enrolled, he:
(a) provides written advice to the higher education provider in question that he did not wish to be a Commonwealth supported student in relation to the unit; or
(b) discontinues his enrolment in the unit.
SECTION 82-10
82-10
Additional SLE
(Repealed by No 104 of 2011)
History
S 82-10 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 82-10 formerly read:
SECTION 82-10 Additional SLE
82-10
A unit of study is not covered by a person's *SLE, despite section 82-1, if:
(a)
the person has an *additional SLE; and
(b)
the *EFTSL value of the unit exceeds the amount of the person's *ordinary SLE or *life long SLE that is *available (or the person's ordinary SLE and the person's life long SLE that are available) to the person at the time of enrolment in the unit;
unless the person is enrolled in, or proposes to enrol in, the unit as part of the *course of study in relation to which the additional SLE applies.
SECTION 82-15
82-15
Simultaneous enrolments that exceed a person's SLE
(Repealed by No 104 of 2011)
History
S 82-15 repealed by No 104 of 2011, s 3 and Sch 2 item 14, 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. S 82-15 formerly read:
SECTION 82-15 Simultaneous enrolments that exceed a person's SLE
82-15(1)
If:
(a)
a person enrols at the same time in more than one unit of study as part of one or more *courses of study with one or more higher education providers; and
(b)
the sum of the *EFTSL values of the units exceed the amount of the person's *SLE that is *available to the person at the time of enrolment in the units;
then, despite section 82-1, a unit that is one of those units is covered by the person's SLE only if:
(c)
the person chooses not to be a *Commonwealth supported student in relation to one or more of the other units (
excluded units
); and
(d)
the sum of the EFTSL values of all of those units that are not excluded units does not exceed the amount of the person's SLE that is available to the person at the time of enrolment in the units; and
(e)
in a case where the person has an *additional SLE - section 82-10 does not prevent the unit from being covered by the person's SLE.
82-15(2)
A person's choice under paragraph (1)(c) in relation to a unit of study is to be made by giving written notice of the choice:
(a)
to an *appropriate officer of the higher education provider with which the person is enrolled in the unit; and
(b)
on or before the *census date for the unit.
PART 3-2 - HECS-HELP ASSISTANCE
Division 87 - Introduction
SECTION 87-1
What this Part is about
A student may be entitled to HECS-HELP assistance
for units of study for which he or she is Commonwealth supported, if certain
requirements are met. The amount of assistance to which the student may be
entitled is based on his or her student contribution amounts for the units,
less any up-front payments. The assistance is paid to a higher education provider
to discharge the student's liability to pay his or her student contribution
amounts.
Note 1:
Amounts of assistance under this Part may form part of a person's HELP
debts that the Commonwealth recovers under Part 4-2.
Note 2:
This Part does not apply to Table C providers: see section 5-1.
SECTION 87-5
87-5
The HECS-HELP Guidelines
*HECS-HELP assistance is also dealt with in the HECS-HELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The HECS-HELP Guidelines are made by the Minister under section 238-10.
History
S 87-5 amended by No 93 of 2020, s 3 and Sch 2 items 2 and 3, by substituting "Note" for "Note 1" in note 1 and repealing note 2, effective 28 October 2020. Note 2 formerly read:
Note 2:
Matters arising under section 93-10 may be dealt with in the Commonwealth Grant Scheme Guidelines.
Division 90 - Who is entitled to HECS-HELP assistance?
SECTION 90-1
90-1
Entitlement to HECS-HELP assistance
A student is entitled to *HECS-HELP assistance for a unit of study in which the student is enrolled with a higher education provider as part of a *course of study if:
(aa)
the course of study is an *accredited course in relation to the provider; and
(a)
the student meets the citizenship or residency requirements under section 90-5; and
(b)
the *census date for the unit is on or after 1 January 2005; and
(ba)
the student's *HELP balance is greater than zero; and
(c)
the student is a *Commonwealth supported student in relation to the unit; and
(d)
(Repealed by No 104 of 2011)
(e)
the student:
(i)
enrolled in the unit on or before the census date for the unit; and
(ii)
at the end of the census date, remained so enrolled; and
(f)
the student *meets the tax file number requirements (see section 187-1); and
(g)
the student has, on or before the census date, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance in relation to the unit or, where the course of study of which the unit forms a part is undertaken with the provider, in relation to the course of study.
Note:
For transitional provisions relating to paragraph (ba), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.
History
S 90-1 amended by No 64 of 2022, s 3 and Sch 4 item 6, by substituting para (f), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023. Para (f) formerly read:
(f)
the student either:
(i)
*meets the tax file number requirements (see section 187-1); or
(ii)
pays, as one or more *up-front payments in relation to the unit, 90% of the student's *student contribution amount for the unit; and
S 90-1 amended by No 93 of 2020, s 3 and Sch 4A item 2, by substituting para (f), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021. Para (f) formerly read:
(f)
the student *meets the tax file number requirements (see section 187-1); and
S 90-1 amended by No 93 of 2020, s 3 and Sch 4 item 20, by substituting "A student" for "Subject to section 90-10, a student", effective 1 January 2021.
S 90-1 amended by No 76 of 2018, s 3 and Sch 3 items 2 and 3, by inserting para (ba) and the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 90-1 amended by No 169 of 2015, s 3 and Sch 3 item 2, by substituting para (f), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017. Para (f) formerly read:
(f)
the student either:
(i)
*meets the tax file number requirements (see section 187-1); or
(ii)
pays, as one or more *up-front payments in relation to the unit, 90% of his or her *student contribution amount for the unit; and
S 90-1 amended by No 74 of 2011, s 3 and Sch 2 item 17, by inserting para (aa), applicable in relation to an enrolment in a unit of study if the enrolment commences on or after 29 January 2012.
S 90-1 amended by No 178 of 2011, s 3 and Sch 4 item 2, by substituting "Subject to section 90-10, a" for "A", applicable in relation to units of study whose census dates are on or after 1 January 2012. For transitional provisions see note under s 36-15(1A).
S 90-1 amended by No 178 of 2011, s 3 and Sch 2 item 3, by substituting "90%" for "80%" in para (f)(ii), applicable in relation to units of study whose census dates are on or after 1 January 2012.
S 90-1 amended by No 104 of 2011, s 3 and Sch 2 item 15, by omitting 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 (a) formerly read:
(d)
either:
(i)
at the time of enrolment, the unit was *covered by the student's *Student Learning Entitlement; or
(ii)
the unit wholly consists of *work experience in industry; and
SECTION 90-5
Citizenship or residency requirements
90-5(1)
A student meets the citizenship or residency requirements under this section in relation to a unit of study if:
(a)
the student is an Australian citizen; or
(b)
the student:
(i)
is a *permanent humanitarian visa holder, an *eligible former permanent humanitarian visa holder or a *Pacific engagement visa holder; and
(ii)
will be resident in Australia for the duration of the unit.
History
S 90-5(1) substituted by No 100 of 2023, s 3 and Sch 1 item 2, applicable in relation to a unit of study with a census date that is on or after 29 March 2024, whether the student: (a) becomes a Pacific engagement visa holder; or (b) enrols in the course of study; before, on or after 29 March 2024. S 90-5(1) formerly read:
90-5(1)
A student meets the citizenship or residency requirements under this section in relation to a unit of study if the student is:
(a)
an Australian citizen; or
(b)
a *permanent humanitarian visa holder, or an *eligible former permanent humanitarian visa holder, who will be resident in Australia for the duration of the unit.
S 90-5(1) amended by No 55 of 2021, s 3 and Sch 1 item 1, by inserting ", or an *eligible former permanent humanitarian visa holder," in para (b), applicable in relation to determining entitlement to HECS-HELP assistance, or FEE-HELP assistance, for units of study with a census date on or after 1 January 2022.
90-5(2)
In determining, for the purpose of subparagraph (1)(b)(ii), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:
(a)
cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of that unit; or
(b)
is required for the purpose of completing a requirement of that unit.
History
S 90-5(2) amended by No 100 of 2023, s 3 and Sch 1 item 3, by substituting "subparagraph (1)(b)(ii)" for "paragraph (1)(b)", applicable in relation to a unit of study with a census date that is on or after 29 March 2024, whether the student: (a) becomes a Pacific engagement visa holder; or (b) enrols in the course of study; before, on or after 29 March 2024.
90-5(2A)
A student also meets the citizenship or residency requirements under this section in relation to a unit of study if the student:
(a)
is a New Zealand citizen who will be resident in Australia for the duration of the unit; and
(b)
either:
(i)holds a special category visa under the Migration Act 1958; or
(ii)
is a *permanent visa holder who, immediately before becoming a permanent visa holder, held a special category visa under the Migration Act 1958; and
(c)
both:
(i)
first began to be usually resident in Australia at least 10 years before the day referred to in subsection (2B) (the
test day
); and
(ii)
was a *dependent child when he or she first began to be usually resident in Australia; and
(d)
has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and
(e)
has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.
History
S 90-5(2A) amended by No 36 of 2023, s 3 and Sch 4 item 1, by substituting para (b), applicable in relation to determining entitlement to HECS-HELP assistance for units of study with a census date that is on or after 29 June 2023. Para (b) formerly read:
(b)
holds a special category visa under the Migration Act 1958; and
S 90-5(2A) amended by No 64 of 2022, s 3 and Sch 3 item 1, by inserting "who will be resident in Australia for the duration of the unit", in para (a), applicable in relation to determining entitlement to HECS-HELP assistance for units of study with a census date that is on or after 1 January 2023.
S 90-5(2A) inserted by No 160 of 2015, s 3 and Sch 1 item 1, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
90-5(2AA)
In determining, for the purpose of paragraph (2A)(a), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:
(a)
cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of that unit; or
(b)
is required for the purpose of completing a requirement of that unit.
History
S 90-5(2AA) inserted by No 64 of 2022, s 3 and Sch 3 item 2, applicable in relation to determining entitlement to HECS-HELP assistance for units of study with a census date that is on or after 1 January 2023.
90-5(2B)
For the purposes of subsection (2A), the day is the earlier of:
(a)
if the student has previously made a successful *request for Commonwealth assistance under this Chapter for a unit that formed part of the same *course of study - the day the student first made such a request; or
(b)
otherwise - the day the student made the request for Commonwealth assistance in relation to the unit.
History
S 90-5(2B) inserted by No 160 of 2015, s 3 and Sch 1 item 1, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
90-5(3)
Despite subsections (1), (2) and (2A), a student does not meet the citizenship or residency requirements in relation to a unit of study if the provider reasonably expects that the student will not undertake in Australia any units of study contributing to the *course of study of which the unit forms a part.
History
S 90-5(3) amended by No 160 of 2015, s 3 and Sch 1 item 2, by substituting ", (2) and (2A)" for "and (2)", applicable in relation to a unit of study that has a census date on or after 1 January 2016.
S 90-5(3) amended by No 127 of 2012, s 3 and Sch 2 items 2 and 3, by substituting "student" for "*permanent humanitarian visa holder" and "the student" for "the visa holder", 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.
History
S 90-5 substituted by No 72 of 2007, s 3 and Sch 5 item 3, applicable in relation to a unit of study in which a student enrols after 28 May 2007. S 90-5 formerly read:
SECTION 90-5 Citizenship or residency requirements
90-5(1)
The citizenship or residency requirements for *HECS-HELP assistance for a unit of study are that the student in question is:
(a)
an Australian citizen; or
(b)
a *permanent humanitarian visa holder who will be resident in Australia for the duration of the unit.
90-5(2)
In determining, for the purpose of paragraph (1)(b), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:
(a)
cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of that unit; or
(b)
is required for the
SECTION 90-10
90-10
Students not entitled to HECS-HELP assistance
(Repealed by No 93 of 2020)
History
S 90-10 repealed by No 93 of 2020, s 3 and Sch 4 item 21, effective 1 January 2021. S 90-10 formerly read:
SECTION 90-10 Students not entitled to HECS-HELP assistance
90-10
A student is not entitled to *HECS-HELP assistance for a unit of study if:
(a)
the unit forms a part of a *course of study; and
(b)
the course of study is, or is to be, undertaken by the student primarily at an overseas campus.
S 90-10 inserted by No 178 of 2011, s 3 and Sch 4 item 3, applicable in relation to units of study whose census dates are on or after 1 January 2012. For transitional provisions see note under s 36-15(1A).
Division 93 - How are amounts of HECS-HELP assistance worked out?
SECTION 93-1
93-1
The amount of HECS-HELP assistance for a unit of study
The amount of *HECS-HELP assistance to which a student is entitled for a unit of study is the difference between:
(a)
his or her *student contribution amount for the unit; and
(b)
the sum of any *up-front payments made in relation to the unit.
Note:
A lesser amount may be payable because of section 93-20.
History
S 93-1 amended by No 76 of 2018, s 3 and Sch 3 item 4, by inserting the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 93-5
Student contribution amounts
93-5(1)
A person's
student contribution amount
for a unit of study is the amount worked out as follows:
The persons'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 only one student contribution amount has been determined for places in the unit under subsection 19-87(2) - that student contribution amount; or
(b)
if more than one student contribution amount has been determined for places in the unit under that subsection - the student contribution amount determined under that subsection that applies to the person.
History
S 93-5(1) substituted by No 121 of 2006, s 3 and Sch 3 item 8, effective 4 November 2006. S 93-5(1) formerly read:
93-5(1)
A person'sstudent contribution amount
for a unit of study is the amount worked out as follows:
The persons'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:
(i)
the unit forms part of a *course of study with a higher education provider;
(ia)
the person is undertaking the unit with the provider;
(ii)
the person commenced that *course of study in a particular *student cohort;
(iii)
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;
(iv)
the person satisfies any conditions that apply to the cohort under that section in relation to the student contribution amount for a place in the unit;
the amount determined under that section 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).
93-5(2)
A person's *student contribution amount for a place in a unit must not exceed the *maximum student contribution amount for a place in the unit that applies in respect of that person.
History
S 93-5(2) amended by No 93 of 2020, s 3 and Sch 2 item 4, by inserting "that applies in respect of that person", effective 28 October 2020. For application provisions, see note under s 93-10.
93-5(3)
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. This subsection has effect despite subsection (1).
93-5(4)
If an amount worked out by using the formula in subsection (1) is an amount made up of dollars and cents, round the amount down to the nearest dollar.
SECTION 93-10
93-10
Maximum student contribution amount for a place
The
maximum student contribution amount for a place
in a unit of study is the amount specified in respect of a person in the following table in relation to the *funding cluster in which the unit is included.
Maximum student contribution amounts for a place
|
Item
|
For a place in a unit of study included in this funding cluster:
|
The amount in respect of a non-grandfathered student is:
|
The amount in respect of a grandfathered student is:
|
1 |
Law, Accounting, Administration, Economics, Commerce, Communications, Society and Culture |
$14,500. |
(a) for a place in a unit in Law, Accounting, Administration, Economics or Commerce - $11,355; or
(b) for a place in a unit in Communications or Society and Culture - $6,804. |
2 |
Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology or Professional Pathway Social Work |
(a) for a place in a unit in Education, Clinical Psychology, English, Mathematics or Statistics - $3,950; or
(b) for a place in a unit in Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology or Professional Pathway Social Work - $7,950. |
(a) for a place in a unit in Education, Clinical Psychology, English, Mathematics or Statistics - $3,950; or
(b) for a place in a unit in Allied Health, Other Health, Built Environment or Computing - $7,950; or
(c) for a place in a unit in Visual and Performing Arts, Professional Pathway Psychology or Professional Pathway Social Work - $6,804. |
3 |
Nursing, Indigenous and Foreign Languages, Engineering, Surveying, Environmental Studies, Science |
(a) for a place in a unit in Nursing or Indigenous and Foreign Languages - $3,950; or
(b) for a place in a unit in Engineering, Surveying, Environmental Studies or Science - $7,950. |
(a) for a place in a unit in Nursing or Indigenous and Foreign Languages - $3,950; or
(b) for a place in a unit in Engineering, Surveying, Environmental Studies or Science - $7,950. |
4 |
Agriculture, Medicine, Dentistry, Veterinary Science, Pathology |
(a) for a place in a unit in Agriculture - $3,950; or
(b) for a place in a unit in Medicine, Dentistry or Veterinary Science - $11,300; or
(c) for a place in a unit in Pathology - $7,950. |
(a) for a place in a unit in Agriculture - $3,950; or
(b) for a place in a unit in Medicine, Dentistry or Veterinary Science - $11,300; or
(c) for a place in a unit in Pathology - $7,950. |
Note 1:
The Commonwealth Grant Scheme Guidelines may specify how to determine the funding cluster, or the part of a funding cluster, in which units of study are included or the particular funding cluster, or the particular part of a particular funding cluster, in which a particular unit of study is included: see section 33-35.
Note 2:
Maximum student contribution amounts for places are indexed under Part 5-6.
History
S 93-10 amended by No 55 of 2021, s 3 and Sch 1 item 27, by substituting "Indigenous and Foreign Languages" for "Foreign Languages" (wherever occurring) in table item 3, effective 25 June 2021 and applicable in relation to units of study with a census date on or after 1 January 2021.
S 93-10 substituted by No 93 of 2020, s 3 and Sch 2 item 5, effective 28 October 2020. No 93 of 2020, s 3 and Sch 2 items 9 and 10 contains the following application provisions:
9 Application of amendments
9
Sections 93-5 and 93-10 of the Higher Education Support Act 2003, as amended by this Schedule, apply in relation to a unit of study that has 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).
10 Indexation
10
Despite anything in Division 198 of Part 5-6 of the Higher Education Support Act 2003, an amount specified in section 93-10 of that Act, as amended by this Schedule, is not to be indexed on 1 January 2021.
S 93-10 formerly read:
SECTION 93-10 Maximum student contribution amounts for places
93-10(1)
The
maximum student contribution amount for a place
in a unit of study is the amount specified in the following table in relation to the funding cluster in which the unit is included.
Maximum student contribution amounts for places
|
Item
|
Column 1
For a place in a unit in this funding cluster:
|
Column 2
The maximum student contribution is:
|
1 |
Law, Accounting, Administration, Economics, Commerce |
$8,859 |
2 |
Humanities |
$5,310 |
3 |
Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health |
(a) for a place in a unit in Mathematics, Statistics, Computing, Built Environment or Other Health - $7,567; or
(b) for a place in a unit in Behavioural Science or Social Studies - $5,310.
(c) (Repealed by No 127 of 2012) |
4 |
Education |
$5,310 |
5 |
Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts |
(a) for a place in a unit in Clinical Psychology, Foreign Languages or Visual and Performing Arts - $5,310; or
(b) for a place in a unit in Allied Health - $7,567. |
6 |
Nursing |
$5,310 |
7 |
Engineering, Science, Surveying |
(a) for a place in a unit in Engineering, Science or Surveying - $7,567.
(b) (Repealed by No 127 of 2012) |
8 |
Dentistry, Medicine, Veterinary Science, Agriculture |
(a) for a place in a unit in Dentistry, Medicine or Veterinary Science - $8,859; or
(b) for a place in a unit in Agriculture - $7,567. |
Note 1:
Commonwealth Grant Scheme Guidelines made for the purposes of section 33-35 and this section deal with the funding clusters in which particular units of study are included and whether particular units are units in a particular part of a funding cluster.
Note 2:
Maximum student contribution amounts for places are indexed under Part 5-6.
History
S 93-10(1) amended by No 127 of 2012, s 3 and Sch 1 items 1 to 7, by inserting "Mathematics, Statistics," in para (a) of the cell at table item 3, column 2, substituting "." for "; or" in para (b) of the cell at table item 3, column 2, repealing para (c) of the cell at table item 3, column 2, omitting "(a)" before "for a place" in para (a) of the cell at table item 7, column 2, inserting ", Science" in para (a) of the cell at table item 7, column 2, substituting "." for "; or" in para (b) of the cell at table item 7, column 2, and repealing para (b) of the cell at table item 7, column 2, applicable in relation to a unit of study with a census date on or after 1 January 2013.
S 93-10(1) amended by No 86 of 2009 (as amended by No 93 of 2020), s 3 and Sch 5 item 1, by substituting the table, effective 1 January 2010. No 86 of 2009 (as amended by No 93 of 2020), s 3 and Sch 5 item 2 contains the following transitional provision:
2 Transitional provision - indexation
2
Amounts in the table in subsection 93-10(1) of the Higher Education Support Act 2003, as amended, are not to be indexed on 1 January 2010.
The table formerly read:
Maximum student contribution amounts for places
|
Item
|
Column 1
For a place in a unit in this funding cluster:
|
Column 2
The maximum student contribution is:
|
1 |
Law, Accounting, Administration, Economics, Commerce |
$8,499 |
2 |
Humanities |
$5,095 |
3 |
Mathematics, Statistics, Behavioural Science, Social Studies, Education, Computing, Built Environment, Other Health |
(a) for a place in a unit in Computing, Built Environment or Other Health - $7,260; or
(b) for a place in a unit in Behavioural Science or Social Studies - $5,095; or
(c) for a place in a unit in Mathematics, Statistics or Education - $4,077. |
4 |
Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts |
(a) for a place in a unit in Clinical Psychology, Foreign Languages or Visual and Performing Arts - $5,095; or
(b) for a place in a unit in Allied Health - $7,260. |
5 |
Nursing |
$4,077 |
6 |
Engineering, Science, Surveying |
(a) for a place in a unit in Engineering or Surveying - $7,260; or
(b) for a place in a unit in Science - $4,077. |
7 |
Dentistry, Medicine, Veterinary Science, Agriculture |
(a) for a place in a unit in Dentistry, Medicine or Veterinary Science - $8,499; or
(b) for a place in a unit in Agriculture - $7,260. |
S 93-10(1) amended by No 43 of 2008, s 3 and Sch 2 items 11 and 12, by substituting table items 3 and 6, applicable in relation to a person's enrolment in a unit of study that forms part of a course of study if:
(a) the person commences that course of study on or after 1 January 2009; or
(b) that course of study is in natural and physical sciences and the person transfers to that course of study on or after 1 January 2009 from a course of study (other than in natural and physical sciences) that the person did not complete.
course of study
, in relation to natural and physical sciences, means a course of study in the field of natural and physical sciences, classified as Broad Field 01 by the Australian Bureau of Statistics in the publication known as the Australian Standard Classification of Education (ASCED) 2001 (catalogue number 1272.0), as updated from time to time. This updating takes 2 forms:
(a) from time to time, a new version of the publication is produced;
(b) from time to time, material in the current version of the publication is updated by other publications of the Australian Bureau of Statistics.
Table items 3 and 6 formerly read:
3 ... Mathematics, Statistics, Behavioural Science, Social Studies, Education, Computing, Built Environment, Other Health ... (a) for a place in a unit in Mathematics, Statistics, Computing, Built Environment or Other Health - $7,260; or ... (b) for a place in a unit in Behavioural Science or Social Studies - $5,095; or ... (c) for a place in a unit in Education - $4,077.
6 ... Engineering, Science, Surveying ... $7,260
S 93-10 amended by No 119 of 2007, s 3 and Sch 7 items 1, 2 and 4, by substituting the table and substituting note 1, effective 1 January 2008. No 119 of 2007, s 3 and Sch 7 item 3 contains the following transitional provision:
Transitional provision - indexation
3
Amounts in the table in section 93-10 of the Higher Education Support Act 2003, as amended, are not to be indexed on 1 January 2008.
The table and note 1 formerly read:
Maximum student contribution amounts for places
|
Item
|
Funding clusters
|
Maximum student contribution amount for a place
|
1 |
Law |
$7,854 |
2 |
Accounting, Administration, Economics, Commerce |
$6,709 |
3 |
Humanities |
$4,710 |
4 |
Mathematics, Statistics |
$6,709 |
5 |
Behavioural Science, Social Studies |
$4,710 |
6 |
Computing, Built Environment, Health |
$6,709 |
7 |
Foreign Languages, Visual and Performing Arts |
$4,710 |
8 |
Engineering, Science, Surveying |
$6,709 |
9 |
Dentistry, Medicine, Veterinary Science |
$7,854 |
10 |
Agriculture |
$6,709 |
11 |
Education |
$3,768 |
12 |
Nursing |
$3,768 |
Note 1:
For the funding clusters in which particular units of study are included, see the Commonwealth Grant Scheme Guidelines made for the purposes of section 33-35.
93-10(2)
The Commonwealth Grant Scheme Guidelines may specify, for the purposes of column 2 of the table in subsection (1):
(a)
how to determine whether a particular unit in a particular part of a *funding cluster; or
(b)
that a particular unit is in a particular part of a funding cluster.
History
S 93-10(2) inserted by No 119 of 2007, s 3 and Sch 7 item 5, effective 1 January 2008.
SECTION 93-15
Up-front payments
93-15(1)
An
up-front payment
, in relation to a unit of study for which a person is liable to pay his or her *student contribution amount, is a payment of all or part of the student's student contribution amount for the unit, other than a payment of *HECS-HELP assistance under this Part.
History
S 93-15(1) amended by No 64 of 2022, s 3 and Sch 4 item 7, by substituting "of all or part" for "of part", applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023.
S 93-15(1) amended by No 93 of 2020, s 3 and Sch 4A item 3, by omitting "all or", applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
S 93-15(1) amended by No 169 of 2015, s 3 and Sch 3 item 3, by inserting "all or", applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017.
93-15(2)
The payment must be made on or before the *census date for the unit.
93-15(3)
(Repealed by No 64 of 2022)
History
S 93-15(3) (including the notes) repealed by No 64 of 2022, s 3 and Sch 4 item 8, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023. S 93-15(3) (including the notes) formerly read:
93-15(3)
A payment made in relation to a unit of study for which a person is liable to pay the person's *student contribution amount is not an
up-front payment
in relation to the unit to the extent that:
(a)
the payment; or
(b)
if other such payments have already been made in relation to the unit - the sum of the payment and all of those other payments;
exceeds 90% of the person's *student contribution amount for the unit.
Note 1:
For when the Commonwealth pays one-ninth of the up-front payments made in relation to a unit of study, see sections 96-2 and 96-3.
Note 2:
It is a condition of grants under Part 2-2 that a higher education provider not accept, from a student who is entitled to HECS-HELP assistance for a unit of study, up-front payments in relation to the unit totalling more than 90% of a student's student contribution amount for the unit: see section 36-50.
S 93-15(3) inserted by No 93 of 2020, s 3 and Sch 4A item 4, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
Former s 93-15(3) (including the notes) repealed by No 169 of 2015, s 3 and Sch 3 item 4, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017. S 93-15(3) (including the notes) formerly read:
93-15(3)
A payment made in respect of a person is not an
up-front payment
to the extent that:
(a)
the payment; or
(b)
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 90% of the person's *student contribution amount for the unit.
Note 1:
The Commonwealth pays one ninth of any up front payments in respect of a student if the total amount of the up front payments, for the unit and the student's other units with the same census date, is 90% of the sum of his or her student contribution amounts for all of his or her units or is $500 or more: see sections 96-5 and 96-10.
Note 2:
It is a condition of grants under Part 2-2 that a higher education provider not accept an up-front payment of more than 90% of a student's student contribution amount from a student who is entitled to HECS-HELP assistance: see section 36-50.
Former s 93-15(3) amended by No 178 of 2011, s 3 and Sch 2 item 4, by substituting "90%" for "80%", applicable in relation to units of study whose census dates are on or after 1 January 2012.
History
S 93-15 amended by No 178 of 2011, s 3 and Sch 2 items 5 and 6, by substituting note 1 and substituting "90%" for "80%" in note 2, applicable in relation to units of study whose census dates are on or after 1 January 2012. Note 1 formerly read:
Note 1:
The Commonwealth pays 1/4 of any up-front payments in respect of a student if the total amount of the up-front payments, for the unit and the student's other units with the same census date, is 80% of the sum of his or her student contribution amounts for all of his or her units or is $500 or more: see sections 96-5 and 96-10.
SECTION 93-20
Amounts of HECS-HELP assistance, FEE-HELPassistance and VET FEE-HELP assistance must not exceed the HELP balance
Amount of HECS-HELP assistance for one unit
93-20(1)
The amount of *HECS-HELP assistance to which a student is entitled for a unit of study is an amount equal to the student's *HELP balance on the *census date for the unit if:
(a)
there is no other:
(i)
unit of study, with the same census date, for which the student is entitled to *HECS-HELP assistance; or
(ii)
unit of study, with the same census date, for which the student is entitled to *FEE-HELP assistance; or
(iii)
*VET unit of study, with the same census date, for which the student is entitled to *VET FEE-HELP assistance; and
(b)
the amount of HECS-HELP assistance to which the student would be entitled under section 93-1 for the unit would exceed that HELP balance.
Note 1:
For transitional provisions relating to subparagraph (a)(i), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.
Note 2:
The amount of a *VET student loan is limited by reference to the student's HELP balance - see sections 8 and 20 of the VET Student Loans Act 2016. The student's HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student - see section 128-15.
Amount of HECS-HELP assistance for more than one unit
93-20(2)
If the sum of:
(a)
the amount of *HECS-HELP assistance to which a student would be entitled under section 93-1 for a unit of study; and
(b)
any other amounts of:
(i)
HECS-HELP assistance to which the student would be entitled under that section for other units that have the same *census date as that unit; and
(ii)
*FEE-HELP assistance to which the student would be entitled under section 107-1 for other units that have the same census date as that unit; and
(iii)
*VET FEE-HELP assistance to which the student would be entitled under clause 52 of Schedule 1A for other units that have the same census date as that unit;
would exceed the student's *HELP balance on the census date for the unit, then, despite subsection (1) of this section, the total amount of HECS-HELP assistance, FEE-HELP assistance and VET FEE-HELP assistance to which the student is entitled for all of those units is an amount equal to that HELP balance.
Example:
Kate has a HELP balance of $2,000, and is enrolled in 4 units with the same census date. The student contribution amount for each unit is $600. There are no up-front payments for the units. The total amount of HECS-HELP assistance to which Kate is entitled for the units is $2,000, even though the total amount of the student contribution amounts for the units is $2,400.
Note 1:
For transitional provisions relating to subparagraph (b)(i), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.
Note 2:
The amount of a *VET student loan is limited by reference to the student's HELP balance - see sections 8 and 20 of the VET Student Loans Act 2016. The student's HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student - see section 128-15.
93-20(3)
If the student referred to in subsection (2) has enrolled in the units with more than one higher education provider or *VET provider, the student must notify each provider of the proportion of the total amount of *HECS-HELP assistance, *FEE-HELP assistance or *VET FEE-HELP assistance that is to be payable in relation to the units in which the student has enrolled with that provider.
History
S 93-20 inserted by No 76 of 2018, s 3 and Sch 3 item 5, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Division 96 - How are amounts of HECS-HELP assistance paid?
Note:
Part 5-1 deals generally with payments by the Commonwealth under this Act.
SECTION 96-1
96-1
Payments to higher education providers
If a student is entitled to an amount of *HECS-HELP assistance for a unit of study with a higher education provider, the Commonwealth must:
(a)
as a benefit to the student, lend to the student the amount of HECS-HELP assistance; and
(b)
pay to the provider the amount lent in discharge of the student's liability to pay his or her *student contribution amount for the unit.
History
S 96-1 amended by No 64 of 2022, s 3 and Sch 4 item 10, by omitting "and no *up-front payments are made in relation to the unit" before ", the Commonwealth must:", applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023.
S 96-1 amended by No 93 of 2020, s 3 and Sch 4A item 6, by inserting "and no *up-front payments are made in relation to the unit", applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
S 96-1 substituted by No 169 of 2015, s 3 and Sch 3 item 5, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017. S 96-1 formerly read:
SECTION 96-1 Payments to higher education providers - no up-front payment of student contribution amount
96-1
If a student is entitled to an amount of *HECS-HELP assistance for a unit of study with a higher education provider and no *up-front payments are made for the unit, the Commonwealth must:
(a)
as a benefit to the student, lend to the student the amount of HECS-HELP assistance; and
(b)
pay to the provider the amount lent in discharge of the student's liability to pay his or her *student contribution amount for the unit.
SECTION 96-2
96-2
Payments to higher education providers - partial up-front payment of student contribution amount
(Repealed by No 64 of 2022)
History
S 96-2 repealed by No 64 of 2022, s 3 and Sch 4 item 11, effective 1 January 2023 and applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023. S 96-2 formerly read:
SECTION 96-2 Payments to higher education providers - partial up-front payment of student contribution amount
Up-front payments made for one unit of study only
96-2(1)
If:
(a)
a student is entitled to an amount of *HECS-HELP assistance for a unit of study (the
relevant unit
) in which the student is enrolled with a higher education provider; and
(b)
one or more *up-front payments have been made in relation to the relevant unit; and
(c)
both of the following apply:
(i)
the amount of that up-front payment, or the sum of those up-front payments, is less than 90% of the student's *student contribution amount for the relevant unit;
(ii)
the amount of that up-front payment, or the sum of those up-front payments, is $500 or more; and
(d)
either:
(i)
the student is not enrolled with a provider as a *Commonwealth supported student in relation to any other units of study that have the same *census date as the relevant unit; or
(ii)
if the student is so enrolled in relation to one or more such other units of study, no up-front payments have been made for any of those units;
the Commonwealth must pay the amount of HECS-HELP assistance for the relevant unit in accordance with subsections (3) and (4).
Up-front payments made for more than one unit of study
96-2(2)
If:
(a)
a student is entitled to an amount of *HECS-HELP assistance for a unit of study (the
relevant unit
) in which the student is enrolled with a higher education provider; and
(b)
one or more up-front payments have been made in relation to the relevant unit; and
(c)
the student is enrolled with the provider as a *Commonwealth supported student in relation to one or more other units of study that have the same *census date as the relevant unit; and
(d)
one or more up-front payments have been made in relation to one or more of those other units; and
(e)
both of the following apply:
(i)
the sum of the up-front payments made in relation to the relevant unit and those other units is less than 90% of the sum of the student's *student contribution amounts for the relevant unit and those other units;
(ii)
the sum of the up-front payments made in relation to the relevant unit and those other units is $500 or more;
the Commonwealth must pay the amount of HECS-HELP assistance for the relevant unit in accordance with subsections (3) and (4).
Payment of loan amount
96-2(3)
The Commonwealth must:
(a)
as a benefit to the student, lend to the student an amount equal to the difference between the amount of *HECS-HELP assistance for the relevant unit and the *HECS-HELP discount for the relevant unit; and
(b)
pay to the provider the amount lent in discharge of that amount of the student's liability to pay the student's *student contribution amount for the relevant unit.
Payment of discount amount
96-2(4)
The Commonwealth must, as a benefit to the student, pay to the provider an amount equal to the *HECS-HELP discount for the relevant unit in discharge of that amount of the student's liability to pay the student's *student contribution amount for the relevant unit.
HECS-HELP discount
96-2(5)
The
HECS-HELP discount
for a unit of study is an amount equal to one-ninth of the *up-front payment, or the sum of all of the up-front payments made, in relation to the unit.
Example:
Robert is required to pay a student contribution amount for a unit of study of $2,745 by 31 January 2021, and makes an up-front payment in relation to the unit of $900 on 20 January 2021.
Robert is entitled to HECS-HELP assistance for the unit of $1,845 ($2,745 minus $900), which the Commonwealth must pay to the higher education provider.
The up-front payment in relation to the unit exceeded $500 so there is a HECS-HELP discount of $100 (one-ninth of $900). The Commonwealth lends to Robert the remainder of the HECS-HELP assistance in relation to the unit, an amount of $1,745 ($1,845 minus $100).
S 96-2 inserted by No 93 of 2020, s 3 and Sch 4A item 7, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
SECTION 96-3
96-3
Payments to higher education providers - full up-front payment of student contribution amount
(Repealed by No 64 of 2022)
History
S 96-3 repealed by No 64 of 2022, s 3 and Sch 4 item 11, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023. S 96-3 formerly read:
SECTION 96-3 Payments to higher education providers - full up-front payment of student contribution amount
96-3
If:
(a)
a student is entitled to an amount of *HECS-HELP assistance for a unit of study in which the student is enrolled with a higher education provider; and
(b)
one or more *up-front payments have been made in relation the unit; and
(c)
the amount of that up-front payment, or the sum of those up-front payments, is equal to 90% of the student's *student contribution amount for the unit;
the Commonwealth must, as a benefit to the student, pay to the provider the amount of HECS-HELP assistance for the unit in discharge of that amount of the student's liability to pay the student's student contribution amount for the unit.
Note:
The student does not incur a HECS-HELP debt in relation to the amount of HECS-HELP assistance paid by the Commonwealth to the provider under this section.
S 96-3 inserted by No 93 of 2020, s 3 and Sch 4A item 7, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
SECTION 96-5
96-5
Effect of HELP balance being re-credited
(Repealed by No 55 of 2021)
History
S 96-5 repealed by No 55 of 2021, s 3 and Sch 1 item 8, effective 25 June 2021. For application provisions, see note under s 36-24BB. S 96-5 formerly read:
SECTION 96-5 Effect of HELP balance being re-credited
96-5(1)
If, under Division 97, a person's *HELP balance is re-credited with an amount relating to *HECS-HELP assistance for a unit of study, the provider must pay to the Commonwealth an amount equal to the amount of HECS-HELP assistance to which the person was entitled for the unit.
Note:
The provider must repay the amount under subsection (1) even if the person's HELP balance is not increased by an amount equal to the amount re-credited.
96-5(2)
Subsection (1) does not apply to the provider if:
(a)
the person's *HELP balance was re-credited under subsection 97-25(2) (which deals with the main case of re-crediting a person's HELP balance); and
(b)
the person enrolled in the unit in circumstances that make it a replacement unit within the meaning of the *tuition protection requirements.
96-5(3)
The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to the re-crediting of a person's *HELP balance in circumstances to which subsection (2) applies:
(a)
the amount (if any) that is to be paid to the Commonwealth; and
(b)
the person (if any) who is to pay the amount.
S 96-5 inserted by No 93 of 2020, s 3 and Sch 4 item 22, effective 1 January 2021.
Former s 96-5 repealed by No 169 of 2015, s 3 and Sch 3 item 5, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017. S 96-5 formerly read:
SECTION 96-5 Payments to higher education providers - partial up-front payment of student contribution amount
General
96-5(1)
If:
(a)
a student is entitled to an amount of *HECS-HELP assistance for a unit of study with a higher education provider; and
(b)
one or more *up-front payments have been made for the unit; and
(c)
the sum of all of the up-front payments made for all of the student's units of study:
(i)
that have the same *census date as that unit; and
(ii)
in relation to which the student is enrolled with the provider as a *Commonwealth supported student;
is less than 90% of the sum of the student's *student contribution amounts for all of his or her units; and
(d)
the sum of all of the up-front payments made for all of the units is $500 or more;
the Commonwealth must pay the amount of HECS-HELP assistance in accordance with subsections (2) and (3).
History
S 96-5(1) amended by No 178 of 2011, s 3 and Sch 2 item 7, by substituting "90%" for "80%" in para (c), applicable in relation to units of study whose census dates are on or after 1 January 2012.
Payment of loan amount
96-5(2)
The Commonwealth must:
(a)
as a benefit to the student, lend to the student an amount equal to the difference between the amount of *HECS-HELP assistance for the unit and the *HECS-HELP discount for the unit; and
(b)
pay to the provider the amount lent in discharge of that amount of the student's liability to pay his or her *student contribution amount for the unit.
Payment of discount amount
96-5(3)
The Commonwealth must, as a benefit to the student, pay to the provider an amount equal to the *HECS-HELP discount for the unit in discharge of that amount of the student's liability to pay his or her *student contribution amount for the unit.
Meaning of
HECS-HELP
discount
96-5(4)
The
HECS-HELP discount
for a unit of study is an amount equal to one-ninth of the sum of all of the *up-front payments made for the unit.
Example:
Robert is required to pay a student contribution amount of $2,745 by 31 January 2012, and makes an up front payment of $900 on 20 January 2012.
Robert is entitled to HECS-HELP assistance of $1,845 ($2,745 minus $900), which the Commonwealth must pay to the higher education provider.
The up-front payment exceeded $500 so there is a HECS-HELP discount of $100 (one-ninth of $900). The Commonwealth lends to Robert the remainder of the HECS-HELP assistance, an amount of $1,745 ($1,845 minus $100).
History
S 96-5(4) substituted by No 178 of 2011, s 3 and Sch 2 item 8, applicable in relation to units of study whose census dates are on or after 1 January 2012. S 96-5(4) formerly read:
96-5(4)
The
HECS-HELP discount
for a unit of study is an amount equal to one quarter of the sum of all of the *up-front payments made for the unit.
Example:
Robert is required to pay a student contribution amount of $2,745 by 31 March 2005, and makes an up-front payment of $1,000 on 20 March 2005.
Robert is entitled to HECS-HELP assistance of $1,745 ($2,745 minus $1,000), which the Commonwealth must pay to the higher education provider.
The up-front payment exceeded $500 so there is a HECS-HELP discount of $250 (one quarter of $1,000). The Commonwealth lends to Robert the remainder of the HECS-HELP assistance, an amount of $1,495 ($1745 minus $250).
SECTION 96-10
96-10
Implications for student's liability to higher education provider for student contribution amount
If, under Division 97, a student's *HELP balance is re-credited with an amount relating to *HECS-HELP assistance for a unit of study, the student is discharged from all liability to pay or account for so much of the student's *student contribution amount for the unit as is equal to that amount.
History
S 96-10 inserted by No 93 of 2020, s 3 and Sch 4 item 22, applicable in relation to any unit of study in respect of which a student becomes liable, on or after 1 January 2021, to pay a student contribution amount (whether the unit of study is part of a course of study commenced before, on or after that day).
Former s 96-10 repealed by No 169 of 2015, s 3 and Sch 3 item 5, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017. S 96-10 formerly read:
SECTION 96-10 Payments to higher education providers-full up-front payment of student contribution amount
96-10
If:
(a)
a student is entitled to an amount of *HECS-HELP assistance for a unit of study with a higher education provider; and
(b)
one or more *up-front payments have been made for the unit; and
(c)
the sum of all of the up-front payments made for all of the student's units of study:
(i)
that have the same *census date as that unit; and
(ii)
in relation to which the student is enrolled as a *Commonwealth supported student;
is 90% of the sum of the student's *student contribution amounts for all of his or her units;
the Commonwealth must, as a benefit to the student, pay to the provider the amount of HECS-HELP assistance for the unit in discharge of that amount of the student's liability to pay his or her student contribution amount for the unit.
Note:
HECS-HELP assistance does not give rise to a HECS-HELP debt if there has been an up-front payment of 90% of a student's student contribution amount for the unit and for the student's other units with the same census date.
Former s 96-10 amended by No 178 of 2011, s 3 and Sch 2 items 9 and 10, by substituting "90%" for "80%" in para (c) and note, applicable in relation to units of study whose census dates are on or after 1 January 2012.
Division 97 - Re-crediting of HELP balances in relation to HECS-HELP assistance
History
Div 97 inserted by No 76 of 2018, s 3 and Sch 3 item 6, effective 1 January 2020. No 76 of 2018, s 3 and Sch 3 items 144-147 contains the following application and transitional provisions:
Part 2 - Application and transitional provisions
144 Application - HELP balance provisions
(1)
For the purposes of this item,
HELP balance provisions
means the following provisions of the Higher Education Support Act 2003 (as amended by this Schedule):
(a)
paragraph 90-1(ba);
(b)
section 93-20 so far as that section relates to an amount of HECS-HELP assistance to which a student is or would be entitled for a unit of study;
(c)
subparagraph 128-15(1)(a)(i);
(d)
Division 97;
(e)
subparagraph 107-10(1)(a)(ia);
(f)
subparagraph 107-10(2)(b)(ia);
(g)
subparagraph 54(1)(a)(ia) of Schedule 1A;
(h)
subparagraph 54(2)(b)(ia) of Schedule 1A.
(2)
The HELP balance provisions apply in relation to a unit of study in which a student was or is enrolled with a higher education provider as part of a course of study if the census date for the unit is on or after 1 January 2020.
145 Transitional - re-credited amounts
145
If, before 1 January 2020, an amount was re-credited to a person's FEE-HELP balance under:
(a)
Subdivision 104-B of the Higher Education Support Act 2003; or
(b)
Subdivision 7-B of Schedule 1A to that Act; or
(c)
Part 6 of the VET Student Loans Act 2016;
section 128-15 of the Higher Education Support Act 2003 (as amended by this Schedule) has effect as if the amount had been re-credited to the person's HELP balance immediately after the start of 1 January 2020.
146 Transitional - pending decisions about re-credited amounts
146
If:
(a)
an application for the re-crediting of an amount to a person's FEE-HELP balance was made before 1 January 2020; and
(b)
the application was made under:
(i)
section 104-25 of the Higher Education Support Act 2003; or
(ii)
clause 46 of Schedule 1A to that Act; or
(iii)
section 72 of the VET Student Loans Act 2016; and
(c)
no decision was made on the application before the commencement of this item;
the application has effect, after the start of 1 January 2020, as if it were an application for the re-crediting of the amount to the person's HELP balance.
147 Transitional - indexation
147
Despite anything in subsection 198-10(1) of the Higher Education Support Act 2003, the HELP loan limit is not to be indexed on 1 January 2020.
]
SECTION 97-23
97-23
Purpose
The purpose of this Division is to set out the circumstances in which a person's *HELP balance is to be re-credited with an amount equal to the amounts of *HECS-HELP assistance that the person has received for a unit of study.
Note:
For transitional provisions relating to this Division, see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.
History
S 97-23 inserted by No 76 of 2018, s 3 and Sch 3 item 6, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 97-25
Main case of re-crediting a person's HELP balance in relation to HECS-HELP assistance
97-25(1)
If section 97-42 applies to re-credit a person's *HELP balance with an amount equal to the amounts of *HECS-HELP assistance that the person has received for a unit of study, then this section does not apply in relation to that unit.
97-25(2)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *HECS-HELP assistance that the person received for a unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
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
(c)
the provider is satisfied that special circumstances apply to the person (see section 97-30); and
(d)
the person applies in writing to the provider for re-crediting of the HELP balance; and
(e)
either:
(i)
the application is made before the end of the application period under section 97-35; or
(ii)
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.
97-25(3)
If the higher education provider is unable to act for one or more of the purposes of subsection (2), or section 97-30, 97-35 or 97-40, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.
History
S 97-25 inserted by No 76 of 2018, s 3 and Sch 3 item 6, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 97-27
Re-crediting a person's HELP balance in relation to HECS-HELP assistance - no tax file number
97-27(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *HECS-HELP assistance that the person received for a unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
subsection 193-5(1) applies to the person in relation to the unit.
97-27(2)
The *Secretary may re-credit the person's *HELP balance under subsection (1) if the provider is unable to do so.
History
S 97-27 inserted by No 76 of 2018, s 3 and Sch 3 item 6, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 97-30
Special circumstances
97-30(1)
For the purposes of paragraph 97-25(2)(c), 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:
(a)
are beyond the person's control; and
(b)
do not make their full impact on the person until on or after the *census date for the unit of study in question; and
(c)
make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.
97-30(2)
If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Note:
The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
History
S 97-30 inserted by No 76 of 2018, s 3 and Sch 3 item 6, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 97-35
Application period
97-35(1)
If:
(a)
the person applying under paragraph 97-25(2)(d) for the re-crediting of the person's *HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; and
(b)
the higher education provider gives notice to the person that the withdrawal has taken effect;
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.
97-35(2)
If subsection (1) does not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.
History
S 97-35 inserted by No 76 of 2018, s 3 and Sch 3 item 6, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 97-40
Dealing with applications
97-40(1)
If:
(a)
the application is made under paragraph 97-25(2)(d) before the end of the relevant application period; or
(b)
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;
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.
97-40(2)
The notice must include a statement of the reasons for the decision.
Note:
Refusals of applications are reviewable under Part 5-7.
History
S 97-40 inserted by No 76 of 2018, s 3 and Sch 3 item 6, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 97-42
Re-crediting a person's HELP balance in relation to HECS-HELP assistance - provider defaults
97-42(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *HECS-HELP assistance that the person received for a unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider *defaulted in relation to the person and the unit; and
(c)
Part 5-1A applied to the provider at the time the provider defaulted in relation to the person; and
(d)
any of the following apply:
(i)
the provider identifies, under paragraph 166-25(4)(b) that there is no suitable *replacement unit or *replacement course for the person;
(ii)
the person elects, under subparagraph 166-25(7)(a)(iii), to have an amount equal to the amounts of HECS-HELP assistance that the person received for the unit re-credited to the student's HELP balance;
(iii)
the *Higher Education Tuition Protection Director decides, under paragraph 166-26B(2)(b) that the Director is not satisfied that there is a suitable replacement course for the person;
(iv)
the person elects, under subparagraph 166-26B(4)(a)(iii), to have an amount equal to the amounts of HECS-HELP assistance that the person received for the unit re-credited to the student's HELP balance.
Note:
A HECS-HELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see subsection 137-5(5).
History
S 97-42(1) amended by No 101 of 2020, s 3 and Sch 2 item 83, by substituting para (d), applicable in relation to provider defaults that occur on or after 1 January 2021. Para (d) formerly read:
(d)
either of the following apply:
(i)
the *HELP Tuition Protection Director decides, under paragraph 166-25(1)(b), that the Director is not satisfied that there is a suitable *replacement course for the person;
(ii)
the person elects, under subparagraph 166-25(3)(a)(iii), to have an amount equal to the amounts of HECS-HELP assistance that the person received for the *affected unit *re-credited to the person's HELP balance.
S 97-42(1) amended by No 111 of 2019, s 3 and Sch 2 item 36, by substituting para (b) to (d), effective 1 January 2020. Para (b) to (d) formerly read:
(b)
the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and
(c)
the *tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and
(d)
the person chose the option designated under the tuition assurance requirements as student contribution/tuition fee repayment in relation to the unit.
97-42(2)
The *Secretary may re-credit the person's *HELP balance under subsection (1) if the provider is unable to do so.
History
S 97-42 inserted by No 76 of 2018, s 3 and Sch 3 item 6, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 97-45
Re-crediting a person's HELP balance in relation to HECS-HELP assistance - provider completes request for assistance
97-45(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *HECS-HELP assistance that the person received for a unit of study if the provider completes any part of the *request for Commonwealth assistance in relation to the unit that the person is required to complete.
Note:
A HECS-HELP debt relating to a unit of study is taken to be remitted if the HELP balance in relation to the unit is re-credited under this section: see subsection 137-5(5).
97-45(2)
The *Secretary may re-credit the person's *HELP balance under this section if the provider is unable to do so.
History
S 97-45 inserted by No 93 of 2020, s 3 and Sch 4 item 23, 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).
SECTION 97-50
Re-crediting a person's HELP balance in relation to HECS-HELP assistance - person not entitled to assistance
97-50(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *HECS-HELP assistance that the person received for a unit of study if the provider or the Secretary is satisfied that the person was not entitled to receive HECS-HELP assistance for the unit of study with the provider.
Note 1:
For example, a person is not entitled to HECS-HELP assistance for a unit of study if the person is not a Commonwealth supported student in relation to the unit: see section 90-1.
Note 2:
Subdivision 36-B sets out circumstances in which a higher education provider must not advise a person that the person is a Commonwealth supported student in relation to a unit of study.
Note 3:
A HECS-HELP debt relating to a unit of study is taken to be remitted if the HELP balance in relation to the unit is re-credited under this section: see subsection 137-5(5).
97-50(2)
The *Secretary may re-credit the person's *HELP balance under subsection (1) if the provider is unable to do so.
History
S 97-50 inserted by No 93 of 2020, s 3 and Sch 4 item 23, 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).
PART 3-3 - FEE-HELP ASSISTANCE
Division 101 - Introduction
SECTION 101-1
101-1
What this Part is about
A student may be entitled to FEE-HELP assistance
for units of study for which he or she is not Commonwealth supported, if certain
requirements are met.
The amount of assistance to which
the student may be entitled is based on his or her tuition fees for the units,
but there is a limit on the total amount of assistance that the student can
receive. The assistance is paid to a higher education provider or, if the
student accesses units through Open Universities Australia, that body, to
discharge the student's liability to pay his or her tuition fees.
Note:
Amounts of assistance under this Part may form part of a person's HELP
debts that the Commonwealth recovers under Part 4-2.
SECTION 101-5
101-5
The FEE-HELP Guidelines
*FEE-HELP assistance is also dealt with in
the FEE-HELP Guidelines. The provisions of this Part indicate when a particular
matter is or may be dealt with in these Guidelines.
Note:
The FEE-HELP Guidelines are made by the Minister under section 238-10.
Division 104 - Who is entitled to FEE-HELP assistance?
Subdivision 104-A - Basic rules
SECTION 104-1
Entitlement to FEE-HELP assistance
104-1(1)
Subject to this section and sections 104-1AA, 104-2, 104-3 and 104-4, a student is entitled to *FEE-HELP assistance for a unit of study if:
(a)
the student meets the citizenship or residency requirements under section 104-5; and
(ab)
(Repealed by No 93 of 2020)
(ac)
the student has been assessed by the higher education provider as academically suited to undertake the unit concerned; and
(b)
the student's *HELP balance is greater than zero; and
(c)
the *census date for the unit is on or after 1 January 2005; and
(d)
the student is not a *Commonwealth supported student in relation to the unit; and
(e)
the unit meets the course requirements under section 104-10; and
(f)
the unit:
(i)
is, or is to be, undertaken as part of a *course of study; or
(ii)
is a unit access to which was provided by *Open Universities Australia; or
(iii)
is part of a *bridging course for overseas-trained professionals; and
(g)
the student:
(i)
enrolled in the unit on or before the census date for the unit; and
(ii)
at the end of the census date, remained so enrolled; and
(ga)
if:
(i)
subparagraph (f)(i) applies, the census date for the unit is on or after 1 January 2021 and before 1 January 2023 and the student commenced the course of study on or after 1 January 2021; or
(ii)
subparagraph (f)(i), (ii) or (iii) applies and the census date for the unit is on or after 1 January 2023;
the student meets the *student identifier requirements under subsection (5); and
(h)
the student *meets the tax file number requirements (see section 187-1); and
(i)
the student has, on or before the census date:
(i)
if access to the unit was provided by Open Universities Australia - completed, signed and given to an *appropriate officer of Open Universities Australia a *request for Commonwealth assistance in relation to the unit; or
(ii)
in any other case - completed, signed and given to an appropriate officer of the higher education provider a request for Commonwealth assistance in relation to the unit or, where the course of study of which the unit forms a part is, or is to be, undertaken with the provider, in relation to the course of study.
History
S 104-1(1) amended by No 89 of 2023, s 3 and Sch 1 item 11, by omitting "104-1A," after "104-1AA,", effective 1 January 2024.
S 104-1(1) amended by No 64 of 2022, s 3 and Sch 1 item 4, by substituting "the student meets the *student identifier requirements under subsection (5)" for "the student has a *student identifier immediately before the census date" in para (ga), effective 30 November 2022 and applicable in relation to determining entitlement to FEE-HELP assistance for units of study with a census date that is on or after 30 November 2022.
S 104-1(1) amended by No 93 of 2020, s 3 and Sch 4 items 24 and 25, by substituting "104-1AA, 104-1A" for "104-1A" and repealing para (ab), 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). Para (ab) formerly read:
(ab)
the student is a *genuine student; and
S 104-1(1) amended by No 62 of 2020, s 3 and Sch 1 item 2, by inserting para (ga), effective 1 January 2021. For application provisions, see note under s 36-10(1).
S 104-1(1) amended by No 76 of 2018, s 3 and Sch 3 item 7, by substituting "*HELP balance" for "*FEE-HELP balance" in para (b), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 104-1(1) amended by No 83 of 2017, s 3 and Sch 3 items 22 and 23, by inserting "104-1A," and para (ab) and (ac), applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2018; and
(c) the unit of study has a census date that occurs on or after 1 January 2018; and
(d) the unit is provided by a higher education provider approved under section 16-25, whether approved before or after 17 August 2017.
No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2021; and
(c) the unit of study has a census date that occurs on or after 1 January 2021; and
(d) the unit is provided by a higher education provider taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
S 104-1(1) amended by No 178 of 2011, s 3 and Sch 4 item 4, by inserting "this section and", applicable in relation to units of study whose census dates are on or after 1 January 2012. For transitional provisions see note under s 36-15(1A).
104-1(1A)
(Repealed by No 93 of 2020)
History
S 104-1(1A) repealed by No 93 of 2020, s 3 and Sch 4 item 24, 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 104-1(1A) formerly read:
104-1(1A)
In determining whether a student is a *genuine student, regard may be had to the matters (if any) specified in the Higher Education Provider Guidelines.
S 104-1(1A) inserted by No 83 of 2017, s 3 and Sch 3 item 24, applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2018; and
(c) the unit of study has a census date that occurs on or after 1 January 2018; and
(d) the unit is provided by a higher education provider approved under section 16-25, whether approved before or after 17 August 2017.
No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2021; and
(c) the unit of study has a census date that occurs on or after 1 January 2021; and
(d) the unit is provided by a higher education provider taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
104-1(1AA)
A student is not entitled to *FEE-HELP assistance for a unit of study if the *Secretary determines that the student is not a genuine student in relation to the unit.
History
S 104-1(1AA) inserted by No 93 of 2020, s 3 and Sch 4 item 26, 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).
104-1(1AB)
In determining whether a student is a genuine student for the purposes of subsection (1AA), the *Secretary must have regard to the matters (if any) specified in the Higher Education Provider Guidelines.
History
S 104-1(1AB) inserted by No 93 of 2020, s 3 and Sch 4 item 26, 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).
104-1(1AC)
If a determination under subsection (1AA) is made in writing, the determination is not a legislative instrument.
History
S 104-1(1AC) inserted by No 93 of 2020, s 3 and Sch 4 item 26, 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).
104-1(1B)
The assessment for the purposes of paragraph (1)(ac) must be done in accordance with any requirements specified in the Higher Education Provider Guidelines made for the purposes of section 19-42.
History
S 104-1(1B) inserted by No 83 of 2017, s 3 and Sch 3 item 24, applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2018; and
(c) the unit of study has a census date that occurs on or after 1 January 2018; and
(d) the unit is provided by a higher education provider approved under section 16-25, whether approved before or after 17 August 2017.
No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2021; and
(c) the unit of study has a census date that occurs on or after 1 January 2021; and
(d) the unit is provided by a higher education provider taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
104-1(2)
A student is not entitled to *FEE-HELP assistance for a unit of study if:
(a)
the unit forms a part of a *course of study; and
(b)
the course of study is, or is to be, undertaken by the student primarily at an overseas campus.
History
S 104-1(2) inserted by No 178 of 2011, s 3 and Sch 4 item 5, applicable in relation to units of study whose census dates are on or after 1 January 2012. For transitional provisions see note under s 36-15(1A).
104-1(3)
A student is not entitled to *FEE-HELP assistance for a unit of study provided, or to be provided, by a higher education provider if:
(a)
a limit on the total number of students entitled to FEE-HELP assistance, or on the total amount of FEE-HELP assistance payable to the provider, applies to the provider; and
(b)
provision of FEE-HELP assistance to the student would exceed that limit.
History
S 104-1(3) inserted by No 83 of 2017, s 3 and Sch 3 item 25, applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2018; and
(c) the unit of study has a census date that occurs on or after 1 January 2018; and
(d) the unit is provided by a higher education provider approved under section 16-25, whether approved before or after 17 August 2017.
No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2021; and
(c) the unit of study has a census date that occurs on or after 1 January 2021; and
(d) the unit is provided by a higher education provider taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
104-1(4)
A student is not entitled to *FEE-HELP assistance for a unit of study with a higher education provider if the higher education provider completes any part of the *request for Commonwealth assistance in relation to the unit that the student is required to complete.
History
S 104-1(4) inserted by No 83 of 2017, s 3 and Sch 3 item 25, applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2018; and
(c) the unit of study has a census date that occurs on or after 1 January 2018; and
(d) the unit is provided by a higher education provider approved under section 16-25, whether approved before or after 17 August 2017.
No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2021; and
(c) the unit of study has a census date that occurs on or after 1 January 2021; and
(d) the unit is provided by a higher education provider taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
When a student meets the student identifier requirements
104-1(5)
A student meets the *student identifier requirements under this subsection if:
(a)
the student has a student identifier immediately before the census date; and
(b)
before the census date, the student notifies the student's student identifier to:
(i)
an *appropriate officer of the higher education provider; and
(ii)
the *Secretary.
History
S 104-1(5) inserted by No 64 of 2022, s 3 and Sch 1 item 5, effective 30 November 2022 and applicable in relation to determining entitlement to FEE-HELP assistance for units of study with a census date that is on or after 30 November 2022.
104-1(6)
A notification under paragraph (5)(b) may be included in a *request for Commonwealth assistance that the student has given to the higher education provider in relation to:
(a)
the unit of study for which the assistance is sought; or
(b)
the *course of study of which the unit forms a part; or
(c)
any other unit of study forming part of that course.
History
S 104-1(6) inserted by No 64 of 2022, s 3 and Sch 1 item 5, effective 30 November 2022 and applicable in relation to determining entitlement to FEE-HELP assistance for units of study with a census date that is on or after 30 November 2022.
SECTION 104-1AA
Student has unreasonable study load
104-1AA(1)
A student is not entitled to *FEE-HELP assistance for a unit of study (the
new unit
) provided, or to be provided, by a higher education provider if the sum of the following amounts is more than 2:
(a)
the *EFTSL value of the new unit;
(b)
the sum of the EFTSL values of each other unit of study:
(i)
that has a *census date during the 12 month period ending on the census date for the new unit; and
(ii)
for which the person is entitled to *HECS-HELP assistance or *FEE-HELP assistance, or would be so entitled but for the previous operation of this section, or section 36-12, in relation to the other unit of study.
104-1AA(2)
Subsection (1) does not apply if the higher education provider determines that undertaking the new unit will not impose an unreasonable study load on the person, having regard to:
(a)
whether the person has the demonstrated capacity and capability to successfully complete units of study that have a total EFTSL value of more than 2; and
(b)
the matters (if any) specified by the Higher Education Provider Guidelines for the purposes of this paragraph.
104-1AA(3)
A decision of a higher education provider under subsection (2) must be in accordance with the Higher Education Provider Guidelines.
104-1AA(4)
If a determination under subsection (2) is made in writing, the determination is not a legislative instrument.
History
S 104-1AA inserted by No 93 of 2020, s 3 and Sch 4 item 27, 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).
SECTION 104-1A
104-1A
Failure by a student to complete previous units with provider
(Repealed by No 89 of 2023)
History
S 104-1A repealed by No 89 of 2023, s 3 and Sch 1 item 12, effective 1 January 2024. S 104-1A formerly read:
SECTION 104-1A Failure by a student to complete previous units with provider
104-1A(1)
A student is not entitled to *FEE-HELP assistance for a unit of study provided, or to be provided, by a higher education provider if:
(a)
in a case where the unit of study is part of a course leading to the award of a bachelor degree or higher qualification:
(i)
the student has already undertaken 8 or more other units of study at that provider as part of that course of study; and
(ii)
the student did not successfully complete at least 50% of those other units; or
(b)
in any other case:
(i)
the student has already undertaken 4 or more other units of study at that provider as part of a course of study; and
(ii)
the student did not successfully complete at least 50% of those other units.
104-1A(2)
This section does not apply if:
(a)
the student applies in writing to the provider for an exemption from subsection (1); and
(b)
the higher education provider is satisfied that special circumstances apply to the student (see section 104-30).
S 104-1A inserted by No 83 of 2017, s 3 and Sch 3 item 26, applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2018; and
(c) the unit of study has a census date that occurs on or after 1 January 2018; and
(d) the unit is provided by a higher education provider approved under section 16-25, whether approved before or after 17 August 2017.
No 93 of 2020, s 3 and Sch 4 item 2 provides that this amendment is applicable in relation to a unit of study if:
(a) the unit of study is undertaken as part of a course of study; and
(b) the student enrolled in the course of study on or after 1 January 2022;and
(c) the unit of study has a census date that occurs on or after that day; and
(d) the unit is provided by a higher education provider taken to be approved under section 16-5, whether taken to be approved before, on or after that day.
SECTION 104-2
104-2
Failure by a student to complete previous units accessed through Open Universities Australia
A student is not entitled to *FEE-HELP assistance
for a unit of study access to which is provided by *Open Universities Australia
if:
(a)
the student has already undertaken
8 or more other units of study, access to which was provided by Open Universities
Australia; and
(b)
the student
did not successfully complete at least 50% of those other units.
SECTION 104-3
Failure by Open Universities Australia to comply with FEE-HELP Guidelines etc.
104-3(1)
The
Minister may determine, by legislative instrument, that there is to be no
entitlement to *FEE-HELP assistance for a specified year for units of study
to which access is provided by *Open Universities Australia, if the Minister
is satisfied that Open Universities Australia has, during the 2 years immediately
preceding the specified year, failed to comply with the FEE-HELP Guidelines
or with subsection (5).
104-3(2)
Without
limiting the generality of what may be included in the FEE-HELP Guidelines,
they may include any or all of the following:
(a)
requirements
relating to the financial viability of *Open Universities Australia;
(b)
requirements relating to the quality
of tuition accessed through Open Universities Australia;
(c)
requirements relating to fairness in the treatment
of persons accessing, or seeking to access, tuition through Open Universities
Australia;
(d)
requirements
relating to compliance with this Act, the regulations and other Guidelines
made under this Act;
(e)
requirements
relating to *tuition fees for units of study accessed through Open Universities
Australia;
(f)
requirements
relating to the provision of information to the Commonwealth by Open Universities
Australia that is relevant in any way to the provision of *FEE-HELP assistance
to students accessing units of study through Open Universities Australia,
or the repayment of the *HELP debts of those students;
(g)
administrative requirements of the kinds imposed
on higher education providers under Parts 5.2 and 5.3 of this Act.
104-3(3)
A
student is not entitled to *FEE-HELP assistance for a unit of study if:
(a)
access to the unit is provided by *Open Universities
Australia; and
(b)
the Minister
has made a determination under subsection (1) in relation to the year during
which the unit is accessed; and
(c)
the determination was made before 1 July in the year immediately
preceding that year.
104-3(5)
*Open
Universities Australia must comply with section 19-37 as
if it were a higher education provider.
SECTION 104-4
Failure by Open Universities Australia to set tuition fees and census date
104-4(1)
This section applies to a unit of study access to which is provided by *Open Universities Australia during a period ascertained in accordance with the FEE-HELP Guidelines.
Tuition fees
104-4(2)
*Open Universities Australia must determine, for the unit, one or more *fees that are to apply to students to whom Open Universities Australia provides access to the unit during the period.
History
S 104-4(2) and (2AA) substituted for s 104-4(2) by No 121 of 2006, s 3 and Sch 3 item 9, effective 4 November 2006. S 104-4(2) formerly read:
104-4(2)
*Open Universities Australia must determine a *fee for the unit that is to apply to all students to whom Open Universities Australia provides access to the unit during the period.
104-4(2AA)
In determining more than one *fee under subsection (2), *Open Universities Australia may have regard to any matters Open Universities Australia considers appropriate, other than matters specified in the FEE-HELP Guidelines as matters to which Open Universities Australia must not have regard.
History
S 104-4(2) and (2AA) substituted for s 104-4(2) by No 121 of 2006, s 3 and Sch 3 item 9, effective 4 November 2006.
104-4(2A)
*Open Universities Australia must not vary a *fee unless Open Universities Australia:
(a)
does so:
(i)
before the date ascertained in accordance with the FEE-HELP Guidelines; and
(ii)
in circumstances specified in the FEE-HELP Guidelines; or
(b)
does so with the written approval of the Minister.
104-4(3)
A
fee
includes any tuition, examination or other fee payable to *Open Universities Australia by those students in relation to the unit.
104-4(4)
A
fee
does not include a fee:
(a)
payable in respect of an organisation of students, or of students and other persons; or
(b)
payable in respect of the provision to students of amenities or services that are not of an academic nature; or
(c)
payable in respect of residential accommodation.
Census date
104-4(5)
*Open Universities Australia must set a particular date to be the *census date for the unit for the period.
104-4(5A)
*Open Universities Australia must not vary a *census date unless Open Universities Australia:
(a)
does so:
(i)
before the date ascertained in accordance with the FEE-HELP Guidelines; and
(ii)
in circumstances specified in the FEE-HELP Guidelines; or
(b)
does so with the written approval of the Minister.
Consequence of failure to set tuition fees and census date
104-4(6)
If *Open Universities Australia does not:
(a)
determine a *fee in accordance with subsection (2) for the unit for the period; or
(b)
determine a *census date in accordance with subsection (5) for the unit for the period;
no student to whom Open Universities Australia provides access to the unit for that period is entitled to *FEE-HELP assistance for the unit.
SECTION 104-5
Citizenship or residency requirements
104-5(1)
A student meets the citizenship or residency requirements under this section in relation to a unit of study if:
(a)
the student is an Australian citizen; or
(b)
the student:
(i)
is a *permanent humanitarian visa holder, an *eligible former permanent humanitarian visa holder or a *Pacific engagement visa holder; and
(ii)
will be resident in Australia for the duration of the unit; or
(c)
in the case of a student who is undertaking, or is to undertake, the unit as part of a *bridging course for overseas-trained professionals - the student is a *permanent visa holder who will be resident in Australia for the duration of the unit.
History
S 104-5(1) substituted by No 100 of 2023, s 3 and Sch 1 item 4, applicable in relation to a unit of study with a census date that is on or after 29 March 2024, whether the student: (a) becomes a Pacific engagement visa holder; or (b) enrols in the course of study; before, on or after 29 March 2024. S 104-5(1) formerly read:
104-5(1)
A student meets the citizenship or residency requirements under this section in relation to a unit of study if the student is:
(a)
an Australian citizen; or
(b)
a *permanent humanitarian visa holder, or an *eligible former permanent humanitarian visa holder, who will be resident in Australia for the duration of the unit; or
(c)
if the student is undertaking, or is to undertake, the unit as part of a *bridging course for overseas-trained professionals - a *permanent visa holder who will be resident in Australia for the duration of the unit.
S 104-5(1) amended by No 55 of 2021, s 3 and Sch 1 item 1, by inserting ", or an *eligible former permanent humanitarian visa holder," in para (b), applicable in relation to determining entitlement to HECS-HELP assistance, or FEE-HELP assistance, for units of study with a census date on or after 1 January 2022.
104-5(2)
In determining, for the purpose of subparagraph (1)(b)(ii) or paragraph (1)(c), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:
(a)
cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit; or
(b)
is required for the purpose of completing a requirement of that unit.
History
S 104-5(2) will be amended by No 100 of 2023, s 3 and Sch 1 item 5, by substituting "subparagraph (1)(b)(ii) or paragraph (1)(c)" for "paragraph (1)(b) or (c)", applicable in relation to a unit of study with a census date that is on or after 29 March 2024, whether the student: (a) becomes a Pacific engagement visa holder; or (b) enrols in the course of study; before, on or after 29 March 2024.
104-5(2A)
A student also meets the citizenship or residency requirements under this section in relation to a unit of study if the student:
(a)
is a New Zealand citizen who will be resident in Australia for the duration of the unit; and
(b)
either:
(i)
holds a special category visa under the Migration Act 1958; or
(ii)
is a *permanent visa holder who, immediately before becoming a permanent visa holder, held a special category visa under the Migration Act 1958; and
(c)
both:
(i)
first began to be usually resident in Australia at least 10 years before the day referred to in subsection (2B) (the
test day
); and
(ii)
was a *dependent child when he or she first began to be usually resident in Australia; and
(d)
has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and
(e)
has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.
History
S 104-5(2A) amended by No 36 of 2023, s 3 and Sch 4 item 2, by substituting para (b), applicable in relation to determining entitlement to FEE-HELP assistance for units of study with a census date that is on or after 29 June 2023. Para (b) formerly read:
(b)
holds a special category visa under the Migration Act 1958; and
S 104-5(2A) amended by No 64 of 2022, s 3 and Sch 3 item 3, by inserting "who will be resident in Australia for the duration of the unit" in para (a), applicable in relation to determining entitlement to FEE-HELP assistance for units of study with a census date that is on or after 1 January 2023.
S 104-5(2A) inserted by No 160 of 2015, s 3 and Sch 1 item 3, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
104-5(2AA)
In determining, for the purpose of paragraph (2A)(a), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:
(a)
cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of that unit; or
(b)
is required for the purpose of completing a requirement of that unit.
History
S 104-5(2AA) inserted by No 64 of 2022, s 3 and Sch 3 item 4, applicable in relation to determining entitlement to FEE-HELP assistance for units of study with a census date that is on or after 1 January 2023.
104-5(2B)
For the purposes of subsection (2A), the day is the earlier of:
(a)
if the student has previously made a successful *request for Commonwealth assistance under this Chapter for a unit that formed part of the same *course of study - the day the student first made such a request; or
(b)
otherwise - the day the student made the request for Commonwealth assistance in relation to the unit.
History
S 104-5(2B) inserted by No 160 of 2015, s 3 and Sch 1 item 3, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
104-5(3)
Despite subsections (1), (2) and (2A), a student does not meet the citizenship or residency requirements in relation to a unit of study if the provider reasonably expects that the student will not undertake in Australia any units of study contributing to the *course of study, or the *bridging course for overseas-trained professionals, of which the unit forms a part.
History
S 104-5(3) amended by No 160 of 2015, s 3 and Sch 1 item 4, by substituting ", (2) and (2A)" for "and (2)", applicable in relation to a unit of study that has a census date on or after 1 January 2016.
S 104-5(3) amended by No 127 of 2012, s 3 and Sch 2 items 4 and 5, by substituting "student" for "*permanent humanitarian visa holder or *permanent visa holder" and "the student" for "the visa holder", applicable in relation to a unit of study that forms part of a course of study or bridging course for overseas-trained professionals commenced by a person on or after 1 January 2013.
104-5(4)
Despite subsections (1), (2) and (2A), a student does not meet the citizenship or residency requirements in relation to a unit of study to which access was provided by *Open Universities Australia if the student was not resident in Australia on the day the student gave the *request for Commonwealth assistance in relation to the unit as referred to in subparagraph 104-1(1)(i)(i).
History
S 104-5(4) amended by No 160 of 2015, s 3 and Sch 1 item 4, by substituting ", (2) and (2A)" for "and (2)", applicable in relation to a unit of study that has a census date on or after 1 January 2016.
S 104-5(4) inserted by No 127 of 2012, s 3 and Sch 2 item 6, applicable in relation to a unit of study with a census date on or after 1 January 2013.
History
S 104-5 substituted by No 72 of 2007, s 3 and Sch 5 item 4, applicable in relation to a unit of study in which a student enrols after 28 May 2007. S 104-5 formerly read:
SECTION 104-5 Citizenship or residency requirements
104-5(1)
The citizenship or residency requirements for *FEE-HELP assistance for a unit of study are that the student in question is:
(a)
an Australian citizen; or
(b)
a *permanent humanitarian visa holder who will be resident in Australia for the duration of the unit; or
(c)
if the student is undertaking, or is to undertake, the unit as part of a *bridging course for overseas-trained professionals - a *permanent visa holder who will be resident in Australia for the duration of the unit.
104-5(2)
In determining, for the purpose of paragraph (1)(b) or (c), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:
(a)
cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit; or
(b)
is required for the purpose of completing a requirement of that unit.
SECTION 104-10
Course requirements
104-10(1)
The course requirements for *FEE-HELP assistance for a unit of study are that:
(a)
if the unit is being undertaken as part of a *course of study, the course is not a course that:
(i)
is subject to a determination under subsection (2); or
(ii)
is with a higher education provider that is subject to a determination under subsection (2); and
(b)
if the unit is being undertaken as part of a course of study with a higher education provider:
(i)
the course of study is an *accredited course in relation to the provider; or
(ia)
the course of study is a *microcredential course; or
(ii)
if the provider is a *self-accrediting entity - the course of study is an *enabling course.
History
S 104-10(1) amended by No 64 of 2022, s 3 and Sch 1 item 14, by inserting para (b)(ia), effective 30 November 2022.
S 104-10(1) amended by No 74 of 2011, s 3 and Sch 2 item 18, by substituting para (b), applicable in relation to an enrolment in a unit of study if the enrolment commences on or after 29 January 2012. Para (b) formerly read:
(b)
if the unit is being undertaken as part of a course of study with a higher education provider and the course is not a course that the provider is authorised by a *government accreditation authority to accredit - the course is an *accredited course.
S 104-10(1) amended by No 72 of 2007, s 3 and Sch 1 item 23, by substituting para (b), effective 31 December 2007. Para (b) formerly read:
(b)
if the unit is being undertaken as part of a course of study with a higher education provider that is a *non self-accrediting provider - the course is an *accredited course.
104-10(2)
The Minister may, by legislative instrument, determine that:
(a)
a specified course provided by a specified higher education provider is a course in relation to which *FEE-HELP assistance is unavailable; or
(b)
all courses provided by a specified higher education provider are courses in relation to which FEE-HELP assistance is unavailable.
104-10(3)
In deciding whether to make a determination under subsection (2), the Minister must have regard to the effect of the determination on students undertaking the course or courses.
104-10(4)
(Repealed by No 83 of 2017)
History
S 104-10(4) repealed by No 83 of 2017, s 3 and Sch 3 item 27, effective 17 August 2017. S 104-10(4) formerly read:
104-10(4)
A determination of the Minister under subsection (2) must not be made later than 6 months before the day that students are able next to commence the specified course, or courses, with the provider.
SECTION 104-12
104-12
Secretary may act if provider is unable to
If a higher education provider is unable to act for the purposes of subsection 104-1AA(2), the *Secretary may act as if one or more of the references in that provision to a higher education provider were a reference to the Secretary.
History
S 104-12 inserted by No 93 of 2020, s 3 and Sch 4 item 28, effective 1 January 2021.
Subdivision 104-B - Re-crediting HELP balances in relation to FEE-HELP assistance
History
Subdiv 104-B heading substituted by No 76 of 2018, s 3 and Sch 3 item 8, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 104-15
104-15
A person's FEE-HELP balance
(Repealed by No 76 of 2018)
History
S 104-15 repealed by No 76 of 2018, s 3 and Sch 3 item 9, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading. S 104-15 formerly read:
SECTION 104-15 A person's FEE-HELP balance
104-15(1)
A person's
FEE-HELP balance
at a particular time is:
(a)
if the *FEE-HELP limit in relation to the person at the time exceeds the sum of all of the amounts of *FEE-HELP assistance, *VET FEE-HELP assistance and *VET student loans that have previously been payable to the person, being that sum as reduced by any amounts previously re-credited under this Subdivision, Subdivision 7-B of Schedule 1A or Part 6 of the VET Student Loans Act 2016 - that excess; and
(b)
otherwise - zero.
Note:
If an amount is to be re-credited to a FEE-HELP balance, the balance that is to be re-credited is worked out immediately before that re-crediting. The balance is worked out after the re-crediting by taking account of the amount re-credited. If a person's FEE-HELP limit has been reduced, the balance might not increase, or might not increase by the same amount as the amount re-credited.
History
S 104-15(1) amended by No 100 of 2016, s 3 and Sch 1 items 1 and 2, by substituting ", *VET FEE-HELP assistance and *VET student loans" for "and *VET FEE-HELP assistance" and ", Subdivision 7-B of Schedule 1A or Part 6 of the VET Student Loans Act 2016" for "or Subdivision 7-B of Schedule 1A" in para (a), effective 1 January 2017. For transitional provision, see note under s 137-19.
104-15(2)
To avoid doubt, the sum referred to in paragraph (1)(a) includes amounts of *FEE-HELP assistance, *VET FEE-HELP assistance and *VET student loans that have been repaid.
History
S 104-15(2) amended by No 100 of 2016, s 3 and Sch 1 item 3, by substituting ", *VET FEE-HELP assistance and *VET student loans" for "and *VET FEE-HELP assistance", effective 1 January 2017. For transitional provision, see note under s 137-19.
S 104-15 substituted by No 170 of 2007, s 3 and Sch 1 item 7, effective 1 January 2008. S 104-15 formerly read:
SECTION 104-15 A person's FEE-HELP balance
104-15(1)
A person's
FEE-HELP balance
at a particular time is:
(a)
if the *FEE-HELP limit in relation to the person at the time exceeds the sum of all of the amounts of *FEE-HELP assistance that have previously been payable to the person, being that sum as reduced by any amounts previously re-credited under this Subdivision - that excess; and
(b)
otherwise - zero.
Note:
If an amount is to be re-credited to a FEE-HELP balance, the balance that is to be re-credited is worked out immediately before that re-crediting. The balance is worked out after the re-crediting by taking account of the amount re-credited. If a person's FEE-HELP limit has been reduced, the balance might not increase, or might not increase by the same amount as the amount re-credited.
History
S 104-15(1) substituted by No 121 of 2006, s 3 and Sch 2 item 1, effective 1 January 2007. S 104-15(1) formerly read:
104-15(1)
A person's
FEE-HELP balance
at a particular time is:
(a)
if the *FEE-HELP limit is greater than the sum of all of the amounts of *FEE-HELP assistance that have previously been payable to the person - the difference between the *FEE-HELP limit and that sum; and
(b)
otherwise - zero.
104-15(2)
To avoid doubt, the sum referred to in paragraph (1)(a) includes amounts of *FEE-HELP assistance that have been repaid.
SECTION 104-20
104-20
The FEE-HELP limit
(Repealed by No 76 of 2018)
History
S 104-20 repealed by No 76 of 2018, s 3 and Sch 3 item 9, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading. S 104-20 formerly read:
SECTION 104-20 The FEE-HELP limit
104-20
The
FEE-HELP limit
is:
(a)
$104,440; or
(b)
in relation to a person who is enrolled in a *course of study in medicine, a *course of study in dentistry or a *course of study in veterinary science, while the person is enrolled in that course - $150,000.
Note:
The FEE-HELP limit is indexed under Part 5-6.
S 104-20 amended by No 76 of 2018, s 3 and Sch 2A items 1 and 2, by substituting "$104,440" for "$80,000" in para (a) and "$150,000" for "$100,000" in para (b), effective 1 January 2019. No 76 of 2018, s 3 and Sch 2A item 3 contains the following transitional provision:
3 Transitional - indexation
3
Despite anything in subsection 198-10(1) of the Higher Education Support Act 2003, the FEE-HELP limit is not to be indexed on 1 January 2019.
S 104-20 substituted by No 121 of 2006, s 3 and Sch 2 item 2, effective 1 January 2007. No 121 of 2006, s 3 and Sch 2 items 3 and 4 contain the following application and transitional provisions:
Application of amendment of FEE-HELP limit
3
Paragraph 104-20(b) of the Higher Education Support Act 2003, as amended, applies only in relation to a person who is enrolled in a course of study mentioned in that paragraph on or after 1 January 2007.
Transitional provision
4
The amounts in section 104-20 of the Higher Education Support Act 2003, as amended, are not to be indexed on 1 January 2007.
S 104-20 formerly read:
SECTION 104-20 The FEE-HELP limit
104-20
The
FEE-HELP limit
is $50,000.
Note:
The FEE-HELP limit is indexed under Part 5-6.
SECTION 104-25
Main case of re-crediting a person's HELP balance in relation to FEE-HELP assistance
104-25(1A)
If section 104-42 applies to re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person has received for a unit of study, then this section does not apply in relation to that unit.
History
S 104-25(1A) amended by No 76 of 2018, s 3 and Sch 3 item 11, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.]
104-25(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(aa)
access to the unit was not provided by *Open Universities Australia; and
(b)
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
(c)
the provider is satisfied that special circumstances apply to the person (see section 104-30); and
(d)
the person applies in writing to the provider for re-crediting of the HELP balance; and
(e)
either:
(i)
the application is made before the end of the application period under section 104-35; or
(ii)
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.
History
S 104-25(1) amended by No 76 of 2018, s 3 and Sch 3 items 11 and 12, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in para (d), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-25(2)
*Open Universities Australia must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person has received for a unit of study if:
(a)
access to the unit was provided by Open Universities Australia; and
(b)
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
(c)
Open Universities Australia is satisfied that special circumstances apply to the person (see section 104-30); and
(d)
the person applies in writing to Open Universities Australia for re-crediting of the HELP balance; and
(e)
either:
(i)
the application is made before the end of the application period under section 104-35; or
(ii)
Open Universities Australia 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.
Note:
A FEE-HELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see section 137-10.
History
S 104-25(2) amended by No 76 of 2018, s 3 and Sch 3 items 13-15, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in para (d) and the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-25(3)
If the provider is unable to act for one or more of the purposes of subsection (1), or section 104-30, 104-35 or 104-40, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.
History
S 104-25(3) amended by No 76 of 2018, s 3 and Sch 3 item 16, by omitting "or (2)" after "subsection (1)", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-25(4)
If *Open Universities Australia is unable to act for one or more of the purposes of subsection (2), or section 104-30, 104-35 or 104-40, the *Secretary may act as if one or more of the references in those provisions to Open Universities Australia were a reference to the Secretary.
History
S 104-25(4) inserted by No 76 of 2018, s 3 and Sch 3 item 17, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 104-27
Re-crediting a person's HELP balance in relation to FEE-HELP assistance - no tax file number
104-27(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
subsection 193-10(1) applies to the person in relation to the unit.
History
S 104-27(1) amended by No 76 of 2018, s 3 and Sch 3 item 19, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-27(2)
*Open Universities Australia must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person has received for a unit of study if subsection 193-10(2) applies to the person in relation to the unit.
Note:
A FEE-HELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see section 137-10.
History
S 104-27(2) amended by No 76 of 2018, s 3 and Sch 3 items 19 and 20, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-27(3)
The *Secretary may re-credit the person's *HELP balance under subsection (1) or (2) if the provider or *Open Universities Australia is unable to do so.
History
S 104-27(3) amended by No 76 of 2018, s 3 and Sch 3 item 21, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 104-30
Special circumstances
104-30(1)
For the purposes of paragraph 104-25(1)(c), 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:
(a)
are beyond the person's control; and
(b)
do not make their full impact on the person until on or after the *census date for the unit of study in question; and
(c)
make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit.
History
S 104-30(1) amended by No 89 of 2023, s 3 and Sch 1 item 13, by substituting "paragraph" for "paragraphs 104-1A(2)(b) and", effective 1 January 2024.
S 104-30(1) amended by No 83 of 2017, s 3 and Sch 3 item 28, by substituting "the purposes of paragraphs 104-1A(2)(b) and" for "the purposes of paragraph", effective 17 August 2017.
104-30(2)
If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Note:
The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
History
S 104-30(2) substituted by No 104 of 2011, s 3 and Sch 2 item 16, 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. S 104-30(2) formerly read:
104-30(2)
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 this section must be in accordance with any such guidelines.
Note:
The matters referred to in paragraphs 79-5(1)(a), (b) and (c) (which relate to re-crediting of Student Learning Entitlement) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
104-30(3)
For the purposes of paragraph 104-25(2)(c), special circumstances apply to the person if and only if *Open Universities Australia is satisfied that circumstances apply to the person that:
(a)
are beyond the person's control; and
(b)
do not make their full impact on the person until on or after the *census date for the unit of study in question; and
(c)
make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.
SECTION 104-35
Application period
104-35(1)
If:
(a)
the person applying under 104-25(1)(d) for the re-crediting of the person's *HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; and
(b)
the higher education provider gives notice to the person that the withdrawalhas taken effect;
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.
History
S 104-35(1) amended by No 76 of 2018, s 3 and Sch 3 item 22, by substituting "*HELP balance" for "*FEE-HELP balance" in para (a), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-35(1A)
If:
(a)
the person applying under paragraph 104-25(2)(d) for the re-crediting of the person's *HELP balance in relation to a unit of study has withdrawn from the unit; and
(b)
*Open Universities Australia gives notice to the person that the withdrawal has taken effect;
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.
History
S 104-35(1A) amended by No 76 of 2018, s 3 and Sch 3 item 22, by substituting "*HELP balance" for "*FEE-HELP balance" in para (a), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-35(2)
If subsections (1) and (1A) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.
SECTION 104-40
Dealing with applications
104-40(1)
If:
(a)
the application is made under paragraph 104-25(1)(d) before the end
of the relevant application period; or
(b)
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;
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.
104-40(1A)
If:
(a)
the application is made under paragraph 104-25(2)(d) before the end
of the relevant application period; or
(b)
*Open Universities Australia 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;
Open Universities Australia
must, as soon as practicable, consider the matter to which the application
relates and notify the applicant of the decision of the application.
104-40(2)
The
notice must include a statement of the reasons for the decision.
Note:
Refusals of applications are reviewable under Part 5-7.
SECTION 104-42
Re-crediting a person's HELP balance if provider defaults or person elects re-crediting
104-42(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider *defaulted in relation to the person; and
(c)
Part 5-1A applied to the provider at the time the provider defaulted in relation to the person; and
(d)
any of the following apply:
(i)
the provider identifies, under paragraph 166-25(4)(b), that there is no suitable *replacement unit or *replacement course for the person;
(ii)
the person elects, under subparagraph 166-25(7)(a)(iii), to have an amount equal to the amounts of FEE-HELP assistance that the person received for the unit re-credited to the student's HELP balance;
(iii)
the *Higher Education Tuition Protection Director decides, under paragraph 166-26B(2)(b), that the Director is not satisfied that there is a suitable replacement course for the person;
(iv)
the person elects, under subparagraph 166-26B(4)(a)(iii), to have an amount equal to the amounts of FEE-HELP assistance that the person received for the unit re-credited to the student's HELP balance.
Note:
A FEE-HELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see subsection 137-10(4).
History
S 104-42(1) amended by No 101 of 2020, s 3 and Sch 2 item 84, by substituting para (d), applicable in relation to provider defaults that occur on or after 1 January 2021. Para (d) formerly read:
(d)
either of the following apply:
(i)
the *HELP Tuition Protection Director decides, under paragraph 166-25(1)(b), that the Director is not satisfied that there is a suitable *replacement course for the person;
(ii)
the person elects, under subparagraph 166-25(3)(a)(iii), to have an amount equal to the amounts of *FEE-HELP assistance that the person received for the unit *re-credited to the person's HELP balance.
S 104-42(1) amended by No 111 of 2019, s 3 and Sch 2 item 11, by substituting para (c) to (d), effective 1 January 2020. For application and transitional provisions, see note under s 16-25. Para (c) to (d) formerly read:
(b)
the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider ceased to provide the unit as a result ofceasing to provide the course of which the unit formed part; and
(c)
the *tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and
(d)
the person chose the option designated under the tuition assurance requirements as student contribution/tuition fee repayment in relation to the unit.
S 104-42(1) amended by No 76 of 2018, s 3 and Sch 3 items 24 and 25, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-42(2)
The *Secretary may re-credit the person's *HELP balance under subsection (1) if the Secretary is satisfied that the provider has failed to do so within a reasonable period.
History
S 104-42(2) substituted by No 111 of 2019, s 3 and Sch 2 item 12, effective 1 January 2020. For application and transitional provisions, see note under s 16-25. S 104-42(2) formerly read:
104-42(2)
The *Secretary may re-credit the person's *FEE-HELP balance under subsection (1) if the provider is unable to do so.
S 104-42(2) amended by No 76 of 2018, s 3 and Sch 3 item 26, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 104-43
Re-crediting a person's HELP balance in relation to FEE-HELP assistance if not a genuine student
104-43(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
the Secretary has determined under subsection 104-1(1AA) that the student is not a genuine student in relation to the unit.
Note:
A FEE-HELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see subsection 137-10(4).
History
S 104-43(1) amended by No 93 of 2020, s 3 and Sch 4 item 29, by substituting para (b), effective 1 January 2021. Para (b) formerly read:
(b)
the Secretary is satisfied that the person is not a *genuine student.
S 104-43(1) amended by No 76 of 2018, s 3 and Sch 3 items 28 and 29, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-43(2)
The *Secretary may re-credit the person's *HELP balance under subsection (1) if the provider is unableto do so.
History
S 104-43(2) amended by No 76 of 2018, s 3 and Sch 3 item 30, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
History
S 104-43 inserted by No 83 of 2017, s 3 and Sch 3 item 29, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 104-44
Re-crediting a person's HELP balance in relation to FEE-HELP assistance if provider completes request for assistance etc.
104-44(1)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if the higher education provider completes any part of the *request for Commonwealth assistance in relation to the unit that the student is required to complete.
Note:
A FEE-HELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is re-credited under this section: see subsection 137-10(4).
History
S 104-44(1) amended by No 76 of 2018, s 3 and Sch 3 items 32 and 33, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-44(2)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if the Secretary is satisfied that the student was not entitled to receive FEE-HELP assistance for the unit of study with the higher education provider.
History
S 104-44(2) amended by No 76 of 2018, s 3 and Sch 3 item 34, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-44(3)
A higher education provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *FEE-HELP assistance that the person received for a unit of study if the student has not has been assessed by the higher education provider as academically suited to undertake the unit concerned.
History
S 104-44(3) amended by No 76 of 2018, s 3 and Sch 3 item 34, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
104-44(4)
The *Secretary may re-credit the person's *HELP balance under this section if the provider is unable to do so.
History
S 104-44(4) amended by No 76 of 2018, s 3 and Sch 3 item 34, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
History
S 104-44 inserted by No 83 of 2017, s 3 and Sch 3 item 29, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
Subdivision 104-C - Bridging courses for overseas-trained professionals
SECTION 104-45
Meaning of
bridging course for overseas-trained professionals
Courses consisting of subjects or units
104-45'>104-45(1)
One or more subjects or units in which a person is enrolled with a higher education provider, or to which access is provided by *Open Universities Australia, are together a
bridging course for overseas-trained professionals
if:
(a)
the person holds an *assessment statement issued by an *assessing body for a *listed professional occupation; and
(b)
the statement is to the effect that, in the body's opinion, if the person were successfully to undertake additional studies of a kind specified in the statement, the person would meet the *requirements for entry to that occupation; and
(c)
the person undertakes, or proposes to undertake, those additional studies by:
(i)
enrolling, or proposing to enrol, on a *non-award basis, in those subjects or units with the provider; or
(ii)
accessing, or proposing to access, those subjects or units through Open Universities Australia; and
(d)
the total student load imposed on the person in relation to those subjects or units does not exceed the student load that, in the opinion of the provider or Open Universities Australia, represents the load imposed on a full-time student for one year; and
(e)
those subjects or units relate to the assessment statement.
History
S 104-45(1) amended by No 72 of 2007, s 3 and Sch 6 items 1 to 3, by inserting ", or to which access is provided by *Open Universities Australia," after "higher education provider", substituting para (c) and substituting "opinion of the provider or Open Universities Australia" for "provider's opinion" in para (d), effective 28 May 2007. Para (c) formerly read:
(c)
the person undertakes, or proposes to undertake, those additional studies by enrolling, or proposing to enrol, on a *non-award basis, in those subjects or units with the provider; and
Courses consisting of occupation-related courses of instruction
104-45(2)
One or more occupation-related courses of instruction in which a person is enrolled with a higher education provider, or to which access is provided by *Open Universities Australia, are together a
bridging course for overseas-trained professionals
if:
(a)
the person holds an *assessment statement issued by an *assessing body for a *listed professional occupation; and
(b)
the statement is to the effect that, in the body's opinion, if the person were to be successful in one or more examinations specified in the statement, the person would meet the *requirements for entry to that occupation; and
(c)
the person prepares, or proposes to prepare, for those examinations by:
(i)
enrolling, or proposing to enrol, on a *non-award basis, in those occupation-related courses of instruction with the provider; or
(ii)
accessing, or proposing to access, those occupation-related courses of instruction through Open Universities Australia; and
(d)
the total student load imposed on the person in relation to those courses does not exceed the student load that, in the opinion of the provider or Open Universities Australia, represents the load imposed on a full-time student for one year; and
(e)
those courses relate to the assessment statement.
History
S 104-45(2) amended by NO tlasb of 2007, s 3 and Sch 6 items 4 to 6, by inserting ", or to which access is provided by *Open Universities Australia," after "higher education provider", substituting para (c) and substituting "opinion of the provider or Open Universities Australia" for "provider's opinion" in para (d), effective 28 May 2007. Para (c) formerly read:
(c)
he person prepares, or proposes to prepare, for those examinations by enrolling, or proposing to enrol, on a *non-award basis, in those occupation-related courses of instruction with the provider; and
Courses consisting of tuition and training programs
104-45(3)
A tuition and training program in which a person is enrolled with a higher education provider, or to which access is provided by *Open Universities Australia, is a
bridging course for overseas-trained professionals
if:
(a)
the person holds an *assessment statement issued by an *assessing body for a *listed professional occupation; and
(b)
the statement is to the effect that, in the body's opinion, if the person were to undertake a tuition and training program of a kind specified in the statement, the person would meet the *requirements for entry to that occupation; and
(c)
the person undertakes, or proposes to undertake, such a program by:
(i)
enrolling, or proposing to enrol, on a *non-award basis, in a tuition and training program with the provider; or
(ii)
accessing, or proposing to access, a tuition and training program through Open Universities Australia; and
(d)
the total student load imposed on the person in relation to that program does not exceed the student load that, in the opinion of the provider or Open Universities Australia, represents the load imposed on a full-time student for one year; and
(e)
that program relates to the assessment statement.
History
S 104-45(3) amended by No 72 of 2007, s 3 and Sch 6 items 7 to 9, by inserting ", or to which access is provided by *Open Universities Australia," after "higher education provider", substituting para (c) and substituting "opinion of the provider or Open Universities Australia" for "provider's opinion" in para (d), effective 28 May 2007. Para (c) formerly read:
(c)
the person undertakes, or proposes to undertake, such a program by enrolling, or proposing to enrol, on a *non-award basis, in a tuition and training program with the provider; and
SECTION 104-50
Assessment statements
104-50(1)
An
*assessing body for a *listed professional occupation may give to a person
who:
(a)
holds a qualification that:
(i)
was awarded in a foreign country; and
(ii)
relates to that occupation; and
(b)
proposes to seek entry to that occupation:
(i)
in Australia; or
(ii)
if the assessing body is an *assessing
body of a State or Territory - in that State or Territory;
a written statement to the effect that, in the body's
opinion, if the person were to do any or all of the things referred to in
subsection (2), the person would meet the *requirements for entry to that
occupation. The statement is an
assessment statement
.
104-50(2)
The
statement may refer to any or all of the following:
(a)
successfully undertaking additional studies of a kind specified
in the statement;
(b)
being
successful in one or more examinations specified in the statement;
(c)
successfully undertaking a tuition
and training program of a kind specified in the statement.
Note:
A statement could specify one of the things mentioned in paragraph (a),
(b) or (c) or any combination of the things mentioned in those paragraphs.
104-50(3)
This
section does not affect the power of an *assessing body to charge fees for
an *assessment statement under subsection (1).
SECTION 104-55
Meaning of assessing body
104-55(1)
An
assessing body
for a particular *listed professional
occupation is a person or body specified in the FEE-HELP Guidelines as an
assessing body for that occupation.
104-55(2)
This
section does not prevent 2 or more persons or bodies from being assessing
bodies for the same *listed professional occupation.
104-55(3)
The
FEE-HELP Guidelines may limit the specification of a person or body as an
assessing body for a particular *listed professional occupation to:
(a)
a particular State; or
(b)
the Australian Capital Territory; or
(c)
the Northern Territory.
Such
an assessing body is an
assessing body of a
State or Territory
.
SECTION 104-60
Meaning of
listed professional occupations
104-60(1)
A
listed professional occupation
is an *occupation
specified in the FEE-HELP Guidelines as a listed professional occupation.
104-60(2)
To
avoid doubt, an *occupation may be specified even if it is not one of the
traditional professions.
SECTION 104-65
Occupation includes part of an occupation
104-65(1)
An
occupation
includes a part of an occupation
specified in the FEE-HELP Guidelines as an occupation in its own right.
104-65(2)
The
following are examples of ways in which a part of an occupation can be specified:
(a)
so much of an occupation as has a bachelor
degree (or equivalent) entry requirement;
(b)
so much of an occupation as consists of a particular specialisation.
SECTION 104-70
Requirements for entry to an occupation
104-70(1)
The
requirements for entry
, to a *listed professional
occupation, are the educational requirements:
(a)
for
entry to that occupation in Australia; or
(b)
if the requirements are referred to in an *assessment statement
given by an *assessing body of a State or Territory for that occupation -
for entry to that occupation in that State or Territory.
104-70(2)
A
requirement for entry to a *listed professional occupation may:
(a)
be imposed by or under a law; or
(b)
be imposed by or under the rules of a body; or
(c)
consist of eligibility for membership
of a body; or
(d)
arise
as a generally accepted employment or industry practice.
104-70(3)
However,
neither of the following is a requirement for entry to a *listed professional
occupation:
(a)
English language training
relating to general aspects of written communication or verbal communication,
or both; or
(b)
being successful
in:
(i)
the Occupational English Test administered
by Language Australia; or
(ii)
any other English language test, where
that test does not form an integral part of an occupation-related study unit,
an occupation-related course of instruction or an occupation-related tuition
and training program.
Division 107 - How are amounts of FEE-HELP assistance worked
out?
SECTION 107-1
107-1
The amount of FEE-HELP assistance for a unit of study
The amount of *FEE-HELP assistance to which
a student is entitled for a unit of study is the difference between:
(a)
the student's *tuition fee for the unit; and
(b)
the sum of any *up-front
payments made in relation to the unit.
Note:
A lesser amount may be payable because of section 107-10.
SECTION 107-5
Up-front payments
107-5(1)
An
up-front payment
, in relation to a unit of
study for which a student is liable to pay a *tuition fee, is a payment of
all or part of the student's tuition fee for the unit, other than a payment
of *FEE-HELP assistance under this Part.
107-5(2)
The
payment must be made on or before the *census date for the unit.
SECTION 107-10
Amounts of FEE-HELP assistance, HECS-HELP assistance and VET FEE-HELP assistance must not exceed the HELP balance
Amount of FEE-HELP assistance for one unit
107-10(1)
The amount of *FEE-HELP assistance to which a student is entitled for a unit of study is an amount equal to the student's *HELP balance on the *census date for the unit if:
(a)
there is no other:
(i)
unit of study, with the same census date, for which the student is entitled to FEE-HELP assistance; or
(ia)
unit of study, with the same census date, for which the student is entitled to HECS-HELP assistance; or
(ii)
*VET unit of study, with the same census date, for which the student is entitled to *VET FEE-HELP assistance; and
(b)
the amount of FEE-HELP assistance to which the student would be entitled under section 107-1 for the unit would exceed that HELP balance.
Note 1:
For transitional provisions relating to subparagraph (a)(ia), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.
Note 2:
The amount of a *VET student loan is limited by reference to the student's HELP balance - see sections 8 and 20 of the VET Student Loans Act 2016. The student's HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student - see section 128-15.
History
S 107-10(1) amended by No 76 of 2018, s 3 and Sch 3 items 36-39, by substituting "*HELP balance" for "*FEE-HELP balance", inserting para (a)(ia), substituting "that HELP balance" for "that FEE-HELP balance" in para (b) and inserting Note 1 and 2 at the end, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Amount of FEE-HELP assistance for more than one unit
107-10(2)
If the sum of:
(a)
the amount of *FEE-HELP assistance to which a student would be entitled under section 107-1 for a unit of study; and
(b)
any other amounts of:
(i)
FEE-HELP assistance to which the student would be entitled under that section for other units that have the same *census date as that unit; and
(ia)
*HECS-HELP assistance to which the student would be entitled under section 93-1 for other units that have the same census date as that unit; and
(ii)
*VET FEE-HELP assistance to which the student would be entitled under clause 52 of Schedule 1A for other units that have the same census date as that unit;
would exceed the student's *HELP balance on the census date for the unit, then, despite subsection (1) of this section, the total amount of FEE-HELP assistance, HECS-HELP assistance and VET FEE-HELP assistance to which the student is entitled for all of those units is an amount equal to that that HELP balance.
Example:
Kath has a HELP balance of $2,000, and is enrolled in 4 units with the same census date. Kath's tuition fee for each unit is $600. The total amount of FEE-HELP assistance to which Kath is entitled for the units is $2,000, even though the total amount of her tuition fees for the units is $2,400.
Note 1:
For transitional provisions relating to subparagraph (b)(ia), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.
Note 2:
The amount of a *VET student loan is limited by reference to the student's HELP balance - see sections 8 and 20 of the VET Student Loans Act 2016. The student's HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student - see section 128-15.
History
S 107-10(2) amended by No 76 of 2018, s 3 and Sch 3 items 40-45, by inserting para (b)(ia) after para (b)(i), substituting "*HELP balance" for "*FEE-HELP balance", inserting ", HECS-HELP assistance" after "of FEE-HELP assistance", substituting "that HELP balance" for "that FEE-HELP balance", "HELP balance" for "FEE-HELP balance" in the example and inserting Note 1 and Note 2 at the end, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
107-10(3)
If the student has enrolled in the units with more than one higher education provider or *VET provider, and access to none of the units was provided by *Open Universities Australia, the student must notify each provider of the proportion of the total amount of *FEE-HELP assistance,*HECS-HELP assistance or *VET FEE-HELP assistance that is to be payable in relation to the units in which the student has enrolled with that provider.
History
S 107-10(3) amended by No 76 of 2018, s 3 and Sch 3 item 46, by inserting ",*HECS-HELP assistance" after "of *FEE-HELP assistance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
107-10(4)
If access to some, but not all, of the units of study was provided by *Open Universities Australia, the student must:
(a)
notify Open Universities Australia of the proportion of the total amount of *FEE-HELP assistance that is to be payable in relation to units access to which was provided by Open Universities Australia; and
(b)
notify each higher education provider or *VET provider at which the student is enrolled in a unit, access to which was not provided by Open Universities Australia, of the proportion of the total amount of FEE-HELP assistance,*HECS-HELP assistance or *VET FEE-HELP assistance that is to be payable in relation to that unit.
History
S 107-10(4) amended by No 76 of 2018, s 3 and Sch 3 item 47, by inserting ",*HECS-HELP assistance" after "of FEE-HELP assistance" in para (b), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
History
S 107-10 substituted by No 170 of 2007, s 3 and Sch 1 item 8, effective 1 January 2008. S 107-10 formerly read:
SECTION 107-10 Amounts of FEE-HELP assistance must not exceed the FEE-HELP balance
Amount of FEE-HELP assistance for one unit
107-10(1)
The amount of *FEE-HELP assistance to which a student is entitled for a unit of study is an amount equal to the student's *FEE-HELP balance on the *census date for the unit if:
(a)
there is no other unit of study, with the same census date, for which the student is entitled to FEE-HELP assistance; and
(b)
the amount of FEE-HELP assistance to which the student would be entitled under section 107-1 for the unit would exceed that FEE-HELP balance.
Amount of FEE-HELP assistance for more than one unit
107-10(2)
If the sum of:
(a)
the amount of *FEE-HELP assistance to which a student would be entitled under section 107-1 for a unit of study; and
(b)
any other amounts of FEE-HELP assistance to which the student would be entitled under that section for other units that have the same *census date as that unit;
would exceed the student's *FEE-HELP balance on the census date for the unit, then, despite subsection (1) of this section, the total amount of FEE-HELP assistance to which the student is entitled for all of those units is an amount equal to that FEE-HELP balance.
Example:
Kath has a FEE-HELP balance of $2,000, and is enrolled in 4 units with the same census date. Kath's tuition fee for each unit is $600. The total amount of FEE-HELP assistance to which Kath is entitled for the units is $2,000, even though the total amount of her tuition fees for the units is $2,400.
107-10(3)
If the student has enrolled in the units with more than one higher education provider, and access to none of the units was provided by *Open Universities Australia, the student must notify each provider of the proportion of the total amount of *FEE-HELP assistance that is to be payable in relation to the units in which the student has enrolled with that provider.
107-10(4)
If access to some, but not all, of the units of study was provided by *Open Universities Australia, the student must:
(a)
notify Open Universities Australia of the proportion of the total amount of *FEE-HELP assistance that is to be payable in relation to units access to which was provided by Open Universities Australia; and
(b)
notify each higher education provider at which the student is enrolled in a unit access to which was not provided by Open Universities Australia, of the proportion of the total amount of FEE-HELP assistance that is to be payable in relation to that unit.
Division 110 - How are amounts of FEE-HELP assistance paid?
Note:
Part 5-1 deals generally with payments by the Commonwealth under this Act.
SECTION 110-1
Payments
110-1(1)
If
a student is entitled to an amount of *FEE-HELP assistance for a unit of study
with a higher education provider, and access to the unit was not provided
by *Open Universities Australia, the Commonwealth must:
(a)
as a benefit to the student, lend to the student the amount of
FEE-HELP assistance; and
(b)
pay
the amount lent to the provider in discharge of the student's liability to
pay his or her *tuition fee for the unit.
110-1(2)
If
a student is entitled to an amount of *FEE-HELP assistance for a unit of study
and access to the unit was provided by *Open Universities Australia, the Commonwealth
must:
(a)
as a benefit to the student, lend
to the student the amount of FEE-HELP assistance; and
(b)
pay the amount lent to Open Universities Australia
in discharge of the student's liability to pay his or her *tuition fee for
the unit.
SECTION 110-5
Effect of HELP balance being re-credited
110-5(1)
If, under subsection 104-25(1) or 104-27(1) or section 104-42, 104-43 or 104-44, a person's *HELP balance is re-credited with an amount relating to *FEE-HELP assistance for a unit of study, the provider must pay to the Commonwealth an amount equal to the amount (if any) that was paid to the provider for the unit under subsection 110-1(1).
Note:
The provider must repay the amount under subsection (1) even if the person's HELP balance is not increased by an amount equal to the amount re-credited.
History
S 110-5(1) amended by No 64 of 2022, s 3 and Sch 1 item 20, by substituting "the amount (if any) that was paid to the provider for the unit under subsection 110-1(1)" for "the amount of FEE-HELP assistance to which the person was entitled for the unit", effective 30 November 2022.
S 110-5(1) amended by No 76 of 2018, s 3 and Sch 3 items 49 and 50, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 110-5(1) amended by No 83 of 2017, s 3 and Sch 3 item 30, by substituting "subsection 104-25(1) or 104-27(1) or section 104-42, 104-43 or 104-44" for "subsection 104-25(1), 104-27(1) or section 104-42", effective 17 August 2017.
S 110-5(1) amended by No 121 of 2006, s 3 and Sch 2 item 5, by inserting the note at the end, effective 1 January 2007.
110-5(1A)
Subsection (1) does not apply to the provider if:
(a)
the person's *HELP balance was re-credited under subsection 104-25(1) (main case of re-crediting a person's HELP balance); and
(b)
the person enrolled in the unit as a *replacement unit.
History
S 110-5(1A)(b) amended by No 111 of 2019, s 3 and Sch 2 item 13, by substituting "unit as a *replacement unit" for "unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements", effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
S 110-5(1A) amended by No 76 of 2018, s 3 and Sch 3 items 51 and 52, by substituting "*HELP balance" for "*FEE-HELP balance" and "a person's HELP balance" for "a person's FEE-HELP balance" in para (a), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
110-5(1B)
The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to the re-crediting of a person's *HELP balance in circumstances to which subsection (1A) applies:
(a)
the amount (if any) that is to be paid to the Commonwealth; and
(b)
the person (if any) who is to pay the amounts.
History
S 110-5(1B) amended by No 111 of 2019, s 3 and Sch 2 item 14, by substituting "the *tuition protection requirements" for "the tuition assurance requirements", effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
S 110-5(1B) amended by No 76 of 2018, s 3 and Sch 3 item 53, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
110-5(2)
If, under subsection 104-25(2) or 104-27(2), *Open Universities Australia re-credits a person's *HELP balance with an amount relating to *FEE-HELP assistance for a unit of study, Open Universities Australia must pay to the Commonwealth an amount equal to the amount (if any) that was paid to Open Universities Australia for the unit under subsection 110-1(2).
History
S 110-5(2) amended by No 64 of 2022, s 3 and Sch 1 item 21, by substituting "the amount (if any) that was paid to Open Universities Australia for the unit under subsection 110-1(2)" for "the amount of FEE-HELP assistance to which the person was entitled for the unit", effective 30 November 2022.
S 110-5(2) amended by No 76 of 2018, s 3 and Sch 3 item 53, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 110-10
110-10
Implications for student's liability to higher education provider for student tuition fee
If, under Subdivision 104-B, a student's *HELP balance is re-credited with an amount relating to *FEE-HELP assistance for a *unit of study, the student is discharged from all liability to pay or account for so much of the student's *tuition fee for the unit as is equal to that amount.
History
S 110-10 inserted by No 93 of 2020, s 3 and Sch 4 item 30, applicable in relation to any unit of study in respect of which a student becomes liable, on or after 1 January 2021, to pay a tuition fee (whether the unit of study is part of a course of study commenced before, on or after that day).
PART 3-4 - OS-HELP ASSISTANCE
Division 115 - Introduction
SECTION 115-1
115-1
What this Part is about
Students may be entitled to OS-HELP assistance for periods during which they are undertaking study overseas, if they meet certain requirements. In particular, their higher education provider must have selected them for OS-HELP assistance.
The amount of OS-HELP assistance is limited to a maximum amount for each period of study, and only 2 such periods can attract OS-HELP assistance.
The purpose of OS-HELP assistance is to help students based in Australia to do part of their course of study overseas.
Note:
Amounts of assistance under this Part may form part of a person's HELP debts that the Commonwealth recovers under Part 4-2.
History
S 115-1 amended by No 112 of 2013, s 3 and Sch 1 item 2, by substituting "periods during which they are undertaking study overseas" for "periods of study with overseas higher education institutions", effective 30 June 2013. For application provisions see note under s 121-1.
SECTION 115-5
115-5
The OS-HELP Guidelines
*OS-HELP assistance is also dealt with in
the OS-HELP Guidelines. The provisions of this Part indicate when a particular
matter is or may be dealt with in these Guidelines.
Note:
The OS-HELP Guidelines are made by the Minister under section 238-10.
Division 118 - Who is entitled to OS-HELP assistance?
SECTION 118-1
Entitlement to OS-HELP assistance
118-1(1)
A student is entitled to *OS-HELP assistance in relation to a period of 6 months if:
(a)
the student meets the citizenship or residency requirements under section 118-5; and
(b)
the student has not received OS-HELP assistance in relation to more than one other period of 6 months; and
(c)
the student is enrolled in a *course of study with a higher education provider (the home provider); and
(ca)
the course of study is an *accredited course in relation to the home provider; and
(d)
the student meets the prior study requirements under section 118-7; and
(e)
the student meets the overseas study requirements under section 118-10; and
(f)
on the completion of that study outside Australia, the student will have to complete units of study that have a total EFTSL value of at least 0.125 EFTSL in order to complete the course requirements for that course of study; and
(g)
the student *meets the tax file number requirements (see section 187-1); and
(h)
the student has completed, signed and given to an *appropriate officer of the home provider a *request for Commonwealth assistance in relation to that course of study; and
(ha)
the student has applied to the home provider for receipt of OS-HELP assistance in relation to the period; and
(hb)
if the student made the application on or after 1 January 2021 - the student meets the *student identifier requirements under section 118-12; and
(i)
the home provider has selected the student for receipt of OS-HELP assistance in relation to the period (see section 118-15).
History
S 118-1(1) amended by No 64 of 2022, s 3 and Sch 1 item 6, by substituting "the student meets the *student identifier requirements under section 118-12" for "the student has a *student identifier immediately before the student made the application" in para (hb), effective 30 November 2022 and applicable in relation to applications for receipt of OS-HELP assistance that are made on or after 30 November 2022.
S 118-1(1) amended by No 62 of 2020, s 3 and Sch 1 item 3, by inserting para (hb), effective 1 January 2021. For application provisions, see note under s 36-10(1).
S 118-1(1) amended by No 112 of 2013, s 3 and Sch 1 items 3-6, by substituting "in relation to more than one other period of 6 months" for "on more than one other occasion" in para (b), "a *course of study" for "an *undergraduate course of study" in para (c), "0.125 EFTSL" for "0.5 EFTSL" in para (f), and omitting "undergraduate" before "course of study" in para (ca), effective 30 June 2013. For application provisions see note under s 121-1.
S 118-1(1) amended by No 74 of 2011, s 3 and Sch 2 item 19, by inserting para (ca), applicable in relation to a period of 6 months commencing on or after 29 January 2012.
S 118-1(1) amended by No 72 of 2007, s 3 and Sch 2 item 1, by inserting para (ha), effective 28 May 2007.
118-1(2)
However, the student is not entitled to *OS-HELP assistance in relation to that period if:
(a)
another higher education provider has granted OS-HELP assistance to the student in relation to:
(i)
that period; or
(ii)
a period that overlaps with that period; or
(b)
the student applies to the home provider for the assistance after the student has completed the study in relation to the period.
History
S 118-1(2) and (3) substituted for s 118-1(2) by No 72 of 2007, s 3 and Sch 2 item 2, effective 28 May 2007. S 118-1(2) formerly read:
118-1(2)
However, the student is not entitled to *OS-HELP assistance in relation to that period if another higher education provider has granted OS-HELP assistance to the student in relation to:
(a)
that period; or
(b)
a period that overlaps with that period.
118-1(3)
To avoid doubt, the student may be outside Australia when the student applies to the home provider for receipt of *OS-HELP assistance.
S 118-1(2) and (3) substituted for s 118-1(2) by No 72 of 2007, s 3 and Sch 2 item 2, effective 28 May 2007.
SECTION 118-2
Entitlement to supplementary amount for Asian language study
118-2(1)
A student is entitled to a *supplementary amount for Asian language study in relation to a period of 6 months if:
(a)
the student is entitled to *OS-HELP assistance in relation to that period; and
(b)
the OS-HELP assistance is for overseas study in Asia; and
(c)
the student undertakes intensive study in an Asian language in preparation for undertaking that overseas study; and
(d)
the student has applied to the home provider for receipt of a supplementary amount for Asian language study in relation to the period; and
(e)
the home provider has selected the student for receipt of a supplementary amount for Asian language study in relation to the period (see section 118-15).
Note:
If a student is entitled to a supplementary amount for Asian language study, the amount of OS-HELP assistance to which the student is entitled may include an amount for that language study in addition to the amount the student may receive for overseas study: see section 121-1.
118-2(2)
However, the student is not entitled to a *supplementary amount for Asian language study in relation to that period if the student applies to the home provider for the assistance after the student has completed the intensive study in an Asian language in relation to the period.
118-2(3)
For the purposes of subsection (1), the OS-HELP Guidelines may specify circumstances in which a student undertakes intensive study in an Asian language in preparation for undertaking overseas study in Asia.
History
S 118-2 inserted by No 112 of 2013, s 3 and Sch 1 item 7, effective 30 June 2013. For application provisions see note under s 121-1.
SECTION 118-5
Citizenship or residency requirements
118-5(1)
The citizenship or residency requirements for *OS-HELP assistance are that the student in question is:
(a)
an Australian citizen; or
(b)
a *permanent humanitarian visa holder, an *eligible former permanent humanitarian visa holder or a *Pacific engagement visa holder; or
(c)
a student to whom subsection (2) applies.
History
S 118-5(1) amended by No 100 of 2023, s 3 and Sch 1 item 6, by substituting ", an *eligible former permanent humanitarian visa holder or a *Pacific engagement visa holder" for "or an *eligible former permanent humanitarian visa holder" in para (b), applicable in relation to an application for receipt of OS-HELP assistance made on or after 29 March 2024, whether the student: (a) becomes a Pacific engagement visa holder; or (b) enrols in the course of study; before, on or after 29 March 2024.
S 118-5(1) amended by No 55 of 2021, s 3 and Sch 1 item 2, by inserting "or an *eligible former permanent humanitarian visa holder" in para (b), applicable in relation to applications for receipt of OS-HELP assistance made on or after 1 January 2022.
S 118-5 amended by No 160 of 2015, s 3 and Sch 1 items 5 and 6, by inserting "(1)" before "The" and inserting para (c), applicable in relation to a unit of study that has a census date on or after 1 January 2016.
118-5(2)
This subsection applies to a student who:
(a)
is a New Zealand citizen; and
(b)
either:
(i)
holds a special category visa under the Migration Act 1958; or
(ii)
is a *permanent visa holder who, immediately before becoming a permanent visa holder, held a special category visa under the Migration Act1958; and
(c)
both:
(i)
first began to be usually resident in Australia at least 10 years before the day referred to in subsection (3) (the
test day
); and
(ii)
was a *dependent child when he or she first began to be usually resident in Australia; and
(d)
has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and
(e)
has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.
History
S 118-5(2) amended by No 36 of 2023, s 3 and Sch 4 item 3, by substituting para (b), applicable in relation to applications for receipt of OS-HELP assistance that are made on or after 29 June 2023. Para (b) formerly read:
(b)
holds a special category visa under the Migration Act 1958; and
S 118-5(2) inserted by No 160 of 2015, s 3 and Sch 1 item 6, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
118-5(3)
For the purposes of subsection (2), the day is the earlier of:
(a)
if the student has previously made a successful *request for Commonwealth assistance under this Chapter in relation to the *course of study the student is enrolled in with the home provider - the day the student first made such a request; or
(b)
otherwise - the day the student made the request for Commonwealth assistance in relation to the period.
History
S 118-5(3) inserted by No 160 of 2015, s 3 and Sch 1 item 6, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
SECTION 118-7
118-7
Prior study requirements
The prior study requirements for *OS-HELP
assistance are that:
(a)
the student in question
has completed units of study in Australia that count towards the course requirements
for the *course of study; and
(b)
the
units of study have a total *EFTSL value of at least one *EFTSL; and
(c)
the student was a *Commonwealth supported
student in relation to the units.
SECTION 118-10
118-10
Overseas study requirements
The overseas study requirements for *OS-HELP assistance are that:
(a)
the student in question:
(i)
is undertaking full-time study; and
(ii)
will be outside Australia while undertaking that study; and
(iii)
(Repealed by No 72 of 2007)
(b)
the study commences on or after 1 January 2005; and
(c)
the study outside Australia will count towards the course requirements of the *course of study in which the student is enrolled with the home provider.
Note:
For paragraph (a), the study need not be at a higher education provider's overseas campus or with an overseas higher education institution.
History
S 118-10 amended by No 112 of 2013, s 3 and Sch 1 items 8-9, by substituting para (a)(i) and inserting the note at the end, effective 30 June 2013. For application provisions see note under s 121-1. Para (a)(i) formerly read:
(i)
is enrolled in full-time study with an overseas higher education institution or is enrolled with the home provider in full-time study at an overseas campus or enrolled with another higher education provider in full-time study at an overseas campus; and
S 118-10 amended by No 72 of 2007, s 3 and Sch 2 items 3 to 5, by repealing para (a)(iii), inserting para (b) and omitting "student's" before "study outside Australia" in para (c), effective 28 May 2007. Para (a)(iii) formerly read:
(iii)
the study commences on or after 1 January 2005; and
SECTION 118-12
Student identifier requirements
118-12(1)
The *student identifier requirements for *OS-HELP assistance are that:
(a)
the student in question had a student identifier immediately before the student made the application referred to in paragraph 118-1(1)(hb); and
(b)
before making, or at the time of making, the application referred to in paragraph 118-1(1)(hb), the student notified the student's student identifier to:
(i)
an *appropriate officer of the higher education provider; and
(ii)
the *Secretary.
118-12(2)
A notification under paragraph (1)(b) may be included in a *request for Commonwealth assistance that the student has given to the higher education provider in relation to:
(a)
the unit of study for which the assistance is sought; or
(b)
the *course of study of which the unit forms a part; or
(c)
any other unit of study forming part of that course.
History
S 118-12 inserted by No 64 of 2022, s 3 and Sch 1 item 7, effective 30 November 2022 and applicable in relation to applications for receipt of OS-HELP assistance that are made on or after 30 November 2022.
SECTION 118-15
Selection of students for receipt of OS-HELP assistance and supplementary amounts for Asian language study
118-15(1)
The OS-HELP Guidelines may set out principles and procedures that higher education providers must follow in deciding whether to select students for receipt of *OS-HELP assistance or *supplementary amounts for Asian language study.
History
S 118-15(1) amended by No 112 of 2013, s 3 and Sch 1 item 11, by inserting "or *supplementary amounts for Asian language study", effective 30 June 2013. For application provisions see note under s 121-1.
[
CCH Note:
There is no s 118-15(2).]
118-15(3)
Any decision by a higher education provider whether to select a student for receipt of *OS-HELP assistance or a *supplementary amount for Asian language study must be made in accordance with the OS-HELP Guidelines.
History
S 118-15(3) amended by No 112 of 2013, s 3 and Sch 1 item 12, by inserting "or a *supplementary amount for Asian language study", effective 30 June 2013. For application provisions see note under s 121-1.
118-15(4)
Without limiting the matters that may be included in the OS-HELP Guidelines made for the purposes of subsection (3), those guidelines may deal with:
(a)
the number of its students whom higher education providers may select for receipt of *OS-HELP assistance or *supplementary amounts for Asian language study; or
(b)
how that number is to be determined.
History
S 118-15(4) amended by No 112 of 2013, s 3 and Sch 1 item 13, by inserting "or a *supplementary amount for Asian language study" in para (a), effective 30 June 2013. For application provisions see note under s 121-1.
Division 121 - How are amounts of OS-HELP assistance worked out?
SECTION 121-1
The amount of OS-HELP assistance for a period
121-1(1)
The amount of *OS-HELP assistance to which a student is entitled for a period of 6 months is the sum of the following amounts determined by the higher education provider to which the student applied for selection for receipt of the assistance:
(a)
the amount determined by the provider for the overseas study (see subsections (2) and (3));
(b)
if the student is entitled to a *supplementary amount for Asian language study - the supplementary amount determined by the provider for that language study (see subsections (4) and (5)).
Determining amounts for overseas study
121-1(2)
The amount determined for overseas study must not exceed:
(a)
the amount specified in the application; or
(b)
the *maximum OS-HELP (overseas study) amount for a period of 6 months.
121-1(3)
The amount determined for overseas study must not be less than the higher education provider's *minimum OS-HELP (overseas study) amount, if the provider has a minimum OS-HELP (overseas study) amount.
Determining supplementary amounts for Asian language study
121-1(4)
The supplementary amount determined for Asian language study must not exceed:
(a)
the amount specified in the application; or
(b)
the *maximum OS-HELP (Asian language study) amount for a period of 6 months.
121-1(5)
The supplementary amount determined for Asian language study must not be less than the higher education provider's *minimum OS-HELP (Asian language study) amount, if the provider has a minimum OS-HELP (Asian language study) amount.
History
S 121-1 substituted by No 112 of 2013, s 3 and Sch 1 item 14, effective 30 June 2013. For application provisions see note under s 121-1. No 112 of 2013, s 3 and Sch 1 Pt 2 contains the following application provisions:
Part 2 - Application of amendments
29 Application of amendments relating to OS-HELP assistance
(1)
Part 3-4 of the Higher Education Support Act 2003, as amended by this Schedule, applies in relation to OS-HELP assistance paid to a student if:
(a)
the assistance is paid on or after 1 January 2014; and
(b)
the student is selected, on or after 1 January 2014, by the home provider for receipt of OS-HELP assistance, or a supplementary amount for Asian language study, in relation to a period of 6 months; and
(c)
in the case of overseas study - the overseas study to which the assistance relates is completed on or after 1 January 2014; and
(d)
in the case of a supplementary amount for Asian language study-the intensive study in an Asian language to which the supplementary amount relates is completed on or after 1 January 2014.
(2)
To avoid doubt, subitem (1) applies even if:
(a)
the student applied for OS-HELP assistance before 1 January 2014; or
(b)
the period of 6 months to which the assistance relates started before 1 January 2014; or
(c)
the student started to undertake the overseas study to which the assistance relates, or the intensive study in an Asian language, before 1 January 2014.
30 Indexation of amounts in 2014
(1)
Despite section 198-10 of the Higher Education Support Act 2003, the amounts set out in items 5 and 6 of the table in subsection 198-5(1) of that Act, as in force on and after the commencement of this item, are not to be indexed on 1 January 2014 in accordance with Part 5-6 of that Act.
(2)
Despite Part 5-6 of the Higher Education Support Act 2003, the maximum OS-HELP amount for a period of 6 months under section 121-5 of that Act, as in force immediately before the commencement of this item, is taken to be $6,250 for a student who:
(a)
is paid OS-HELP assistance on or after 1 January 2014; and
(b)
either:
(i)
is selected for receipt of OS-HELP assistance before 1 January 2014; or
(ii)
completes the overseas study in respect of the period before 1 January 2014.
S 121-1 formerly read:
SECTION 121-1 The amount of OS-HELP assistance for a period
121-1(1)
The amount of *OS-HELP assistance to which a student is entitled for a period of 6 months is the amount determined by the higher education provider to which the student applied for selection for receipt of the assistance.
121-1(2)
The amount must not exceed:
(a)
the amount specified in the application; or
(b)
the *maximum OS-HELP amount for a period of 6 months.
121-1(3)
The amount must not be less than the higher education provider's *minimum OS-HELP amount, if the provider has a minimum OS-HELP amount.
SECTION 121-5
Maximum OS-HELP (overseas study) amount
121-5(1)
The
maximum OS-HELP (overseas study) amount
, for a period of 6 months, is:
(a)
if the *OS-HELP assistance is for overseas study undertaken in Asia - $7,500; or
(b)
in any other case - $6,250.
Note:
The maximum OS-HELP (overseas study) amount is indexed under Part 5-6.
121-5(2)
For the purposes of subsection (1), the OS-HELP Guidelines may specify whether overseas study undertaken at a particular place is undertaken in Asia.
History
S 121-5 substituted by No 112 of 2013, s 3 and Sch 1 item 15, effective 30 June 2013. For application provisions see note under s 121-1. S 121-5 formerly read:
SECTION 121-5 Maximum OS-HELP amount
121-5
The
maximum OS-HELP amount
, for a period of 6 months, is $5,000.
Note:
The maximum OS-HELP amount is indexed under Part 5-6.
SECTION 121-10
Minimum OS-HELP (overseas study) amount
121-10(1)
A higher education provider may determine, in writing, its *minimum OS-HELP (overseas study) amount.
History
S 121-10(1) amended by No 112 of 2013, s 3 and Sch 1 item 17, by inserting "(overseas study)", effective 30 June 2013. For application provisions see note under s 121-1.
121-10(2)
The determination has effect until:
(a)
it is replaced by a later determination; or
(b)
it is revoked.
SECTION 121-15
121-15
Maximum OS-HELP (Asian language study) amount
The
maximum OS-HELP (Asian language study) amount
, for a period of 6 months, is $1,000.
Note:
The maximum OS-HELP (Asian language study) amount is indexed under Part 5-6.
History
S 121-15 inserted by No 112 of 2013, s 3 and Sch 1 item 18, effective 30 June 2013. For application provisions see note under s 121-1.
SECTION 121-20
Minimum OS-HELP (Asian language study) amount
121-20(1)
A higher education provider may determine, in writing, its
minimum OS-HELP (Asian language study) amount
.
121-20(2)
The determination has effect until:
(a)
it is replaced by a later determination; or
(b)
it is revoked.
History
S 121-20 inserted by No 112 of 2013, s 3 and Sch 1 item 18, effective 30 June 2013. For application provisions see note under s 121-1.
Division 124 - How are amounts of OS-HELP assistance paid?
Note:
Part 5-1 deals generally
with payments by the Commonwealth under this Act.
SECTION 124-1
Amounts of OS-HELP assistance are lent to students
124-1(1)
If a student is entitled to an amount of *OS-HELP assistance for a period of 6 months, the Commonwealth must, as a benefit to the student, lend to the student the amount of OS-HELP assistance.
124-1(2)
The higher education provider that selected the student for receipt of *OS-HELP assistance in relation to the period must, on the Commonwealth's behalf, pay to the student the amount lent.
124-1(2A)
The OS-HELP Guidelines may provide that a student who is entitled to a *supplementary amount for Asian language study may be paid:
(a)
an amount for that language study; and
(b)
an amount for the overseas study;
at different times determined in accordance with those guidelines.
History
S124-1(2A) inserted by No 112 of 2013, s 3 and Sch 1 item 19, effective 30 June 2013. For application provisions see note under s 121-1.
124-1(2B)
If a student is paid amounts at different times as mentioned in subsection (2A), each amount is taken to be a separate loan for the purposes of section 137-15 (OS-HELP debts).
History
S124-1(2B) inserted by No 112 of 2013, s 3 and Sch 1 item 19, effective 30 June 2013. For application provisions see note under s 121-1.
124-1(3)
The Commonwealth must make payments to the higher education provider on account of amounts the provider pays under this section on the Commonwealth's behalf.
PART 3-5 - SA-HELP ASSISTANCE
History
Part 3-5 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
Division 125 - Introduction
History
Div 125 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
SECTION 125-1
125-1
What this Part is about
A student may be entitled to SA-HELP assistance for a student services and amenities fee imposed on him or her by a higher education provider, if certain requirements are met.
The amount of the assistance is the amount of the fee, less any amounts of the fee paid on or before the day the fee is payable (except any SA-HELP assistance paid under this Part). The assistance is paid to the provider to discharge the student's liability to pay the fee.
Note:
Amounts of assistance under this Part may form part of a person's HELP debts that the Commonwealth recovers under Part 4-2.
History
S 125-1 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
Division 126 - Who is entitled to SA-HELP assistance?
History
Div 126 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
SECTION 126-1
Entitlement to SA-HELP assistance
126-1(1)
A student is entitled to *SA-HELP assistance for a *student services and amenities fee imposed on the student for a period by a higher education provider if:
(a)
the student meets the citizenship or residency requirements under section 126-5; and
(b)
on the day on which the fee is payable, the student is enrolled with the provider in one or more of the following:
(i)
a *course of study or a *bridging course for overseas-trained professionals;
(ii)
an *accelerator program course; and
(c)
the student *meets the tax file number requirements (see section 187-1); and
(d)
the student has, on or before the day on which the fee is payable, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance in relation to the fee; and
(e)
if the day on which the fee is payable is on or after 1 January 2023 - the student meets the *student identifier requirements under section 126-10.
History
S 126-1(1) amended by No 36 of 2023, s 3 and Sch 1 item 22, by substituting para (b), effective 29 June 2023. Para (b) formerly read:
(b)
the student is enrolled with the provider in a *course of study or a *bridging course for overseas-trained professionals on the day on which the fee is payable; and
S 126-1(1) amended by No 64 of 2022, s 3 and Sch 1 item 8, by substituting "the student meets the *student identifier requirements under section 126-10" for "the student has a *student identifier immediately before the day on which the fee is payable" in para (e), effective 30 November 2022 and applicable in relation to requests for Commonwealth assistance in relation to a student services and amenities fee that are made on or after 30 November 2022.
S 126-1(1) amended by No 62 of 2020, s 3 and Sch 1 item 4, by inserting para (e), effective 1 January 2021. For application provisions, see note under s 36-10(1).
126-1(2)
A
request for Commonwealth assistance
, in relation to a *student services and amenities fee imposed for a period on a person who is enrolled with a higher education provider in one or more of the courses mentioned in paragraph (1)(b), means a document:
(a)
in which the person requests the Commonwealth to provide assistance under this Act in relation to the fee for the period; and
(b)
that is in the form approved by the Minister.
History
S 126-1(2) substituted by No 36 of 2023, s 3 and Sch 1 item 23, effective 29 June 2023. S 126-1(2) formerly read:
126-1(2)
A
request for Commonwealth assistance
, in relation to a *student services and amenities fee imposed for a period on a person who is enrolled with a higher education provider in a *course of study or a *bridging course for overseas-trained professionals, means a document:
(a)
in which the person requests the Commonwealth to provide assistance under this Act in relation to the fee for the period (and any student services and amenities fee imposed for a later period during which the person is enrolled in the course or bridging course); and
(b)
that is in the form approved by the Minister.
History
S 126-1 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
SECTION 126-5
Citizenship or residency requirements
126-5(1)
A student meets the citizenship or residency requirements under this section in relation to a *student services and amenities fee imposed on the student by a higher education provider if the student is, on the day the fee is payable:
(a)
an Australian citizen; or
(b)
both:
(i)
a *permanent humanitarian visa holder, an *eligible former permanent humanitarian visa holder or a *Pacific engagement visa holder; and
(ii)
resident in Australia.
History
S 126-5(1) amended by No 100 of 2023, s 3 and Sch 1 item 7, by substituting para (b), applicable in relation to fees payable for periods that start on or after 29 March 2024, whether the student: (a) becomes a Pacific engagement visa holder; or (b) enrols in the course of study or bridging course for overseas-trained professionals; before, on or after 29 March 2024. Para (b) formerly read:
(b)
a *permanent humanitarian visa holder, or an *eligible former permanent humanitarian visa holder, who is resident in Australia.
S 126-5(1) amended by No 55 of 2021, s 3 and Sch 1 item 3, by inserting ", or an *eligible former permanent humanitarian visa holder, who is" in para (b), applicable in relation to requests for Commonwealth assistance in relation to a student services and amenities fee made on or after 1 January 2022.
126-5(1A)
A student also meets the citizenship or residency requirements under this section in relation to a *student services and amenities fee imposed on the student by a higher education provider if the student:
(a)
is a New Zealand citizen on the day the fee is payable; and
(b)
on the day the fee is payable, either:
(i)
holds a special category visa under the Migration Act 1958; or
(ii)
is a *permanent visa holder who, immediately before becoming a permanent visa holder, held a special category visa under the Migration Act 1958; and
(c)
both:
(i)
first began to be usually resident in Australia at least 10 years before the day referred to in subsection (1B) (the
test day
); and
(ii)
was a *dependent child when he or she first began to be usually resident in Australia; and
(d)
has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and
(e)
has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.
History
S 126-5(1A) amended by No 36 of 2023, s 3 and Sch 4 item 4, by substituting para (b), applicable in relation to requests for Commonwealth assistance in relation to a student services and amenities fee that are made on or after 29 June 2023. Para (b) formerly read:
(b)
holds a special category visa under the Migration Act 1958 on the day the fee is payable; and
S 126-5(1A) inserted by No 160 of 2015, s 3 and Sch 1 item 7, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
126-5(1B)
For the purposes of subsection (1A), the day is the earlier of:
(a)
if the student:
(i)
is enrolled with the provider in a *course of study; and
(ii)
has previously made a successful *request for Commonwealth assistance under this Chapter in relation to the course - the day the student first made such a request; or
(b)
otherwise - the day the student made the request for Commonwealth assistance in relation to the fee.
History
S 126-5(1B) inserted by No 160 of 2015, s 3 and Sch 1 item 7, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
126-5(2)
Despite subsections (1) and (1A), a student does not meet the citizenship or residency requirements in relation to a *student services and amenities fee imposed on the student by a higher education provider if the provider reasonably expects that:
(a)
for a student enrolled in one course for the purposes of paragraph 126-1(1)(b) - the student will not undertake in Australia any *units of study with the provider, or any or the *accelerator program course (as applicable); or
(b)
for a student enrolled in more than one course for the purposes of paragraph 126-1(1)(b) - the student will not undertake in Australia:
(i)
any units of study with the provider; and
(ii)
if one of the courses is an accelerator program course - any of the accelerator program course.
History
S 126-5(2) substituted by No 36 of 2023, s 3 and Sch 1 item 24, effective 29 June 2023. S 126-5(2) formerly read:
126-5(2)
Despite subsections (1) and (1A), a student does not meet the citizenship or residency requirements in relation to a *student services and amenities fee imposed on the student by a higher education provider if the provider reasonably expects that the student will not undertake in Australia any *units of study with the provider.
S 126-5(2) amended by No 160 of 2015, s 3 and Sch 1 item 8, by substituting "subsections (1) and (1A)" for "subsection (1)", applicable in relation to a unit of study that has a census date on or after 1 January 2016.
S 126-5(2) amended by No 127 of 2012, s 3 and Sch 2 items 7 and 8, by substituting "student" for "*permanent humanitarian visa holder" and "the student" for "the visa holder" (wherever occurring), applicable in relation to a student services and amenities fee if: (a) the fee is payable on or after 1 January 2013 by a person who is enrolled in a course of study or bridging course for overseas trained professionals; and (b) the person commences the course on or after 1 January 2013.
History
S 126-5 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
SECTION 126-10
Student identifier requirements
126-10(1)
A student meets the *student identifier requirements under this section in relation to a *student services and amenities fee imposed on the student by a higher education provider if:
(a)
the student has a student identifier immediately before the day on which the fee is payable; and
(b)
before making, or at the time of making, the *request for Commonwealth assistance referred to in paragraph 126-1(1)(d), the student notifies the student's student identifier to:
(i)
an *appropriate officer of the higher education provider; and
(ii)
the *Secretary.
126-10(2)
A notification under paragraph (1)(b) may be included in the *request for Commonwealth assistance by the student referred to in paragraph 126-1(1)(d).
History
S 126-10 inserted by No 64 of 2022, s 3 and Sch 1 item 9, effective 30 November 2022 and applicable in relation to requests for Commonwealth assistance in relation to a student services and amenities fee that are made on or after 30 November 2022.
Division 127 - How are amounts of SA-HELP assistance worked out?
History
Div 127 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
SECTION 127-1
127-1
The amount of SA-HELP assistance for a student services and amenities fee
The amount of *SA-HELP assistance to which a student is entitled for a *student services and amenities fee is the difference (if any) between:
(a)
the fee; and
(b)
the sum of any payments of the fee (other than a payment of SA-HELP assistance under this Part) made on or before the day on which the fee is payable.
History
S 127-1 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
Division 128 - How are amounts of SA-HELP assistance paid?
Note:
Part 5-1 deals generally with payments by the Commonwealth under this Act.
History
Div 128 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
SECTION 128-1
128-1
Payments to higher education providers of loans to students
If a student is entitled to an amount of *SA-HELP assistance for a *student services and amenities fee imposed by a higher education provider, the Commonwealth must:
(a)
as a benefit to the student, lend to the student the amount of SA-HELP assistance; and
(b)
pay to the provider the amount lent in discharge of the student's liability to pay the fee.
History
S 128-1 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
SECTION 128-5
128-5
Repayment by higher education provider if student does not have tax file number
A higher education provider must repay the Commonwealth an amount paid to the provider under section 128-1 in discharge of a person's liability to pay a *student services and amenities fee if subsection 193-15(1) applies to the person.
Note 1:
Subsection 193-15(1) applies to a person who does not have a tax file number.
Note 2:
The person's SA-HELP debt will be remitted if the higher education provider must repay the amount under this section: see subsection 137-16(4).
History
S 128-5 inserted by No 130 of 2011, s 3 and Sch 1 item 10, effective 1 January 2012.
PART 3-6 - HELP BALANCES
History
Pt 3-6 inserted by No 76 of 2018, s 3 and Sch 3 item 54, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 128-7
What this Part is about
A person's HELP balance at a particular time is worked out by reference to:
(a) the HELP loan limit in relation to the person at the time; and
(b) the amounts of HECS-HELP assistance, FEE-HELP assistance, VET FEE-HELP assistance and VET student loans that that have previously been payable to the person; and
(c) amounts previously re-credited to the person's HELP balance (including repayments of HELP debts).
History
S 128-7 inserted by No 76 of 2018, s 3 and Sch 3 item 54, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 128-15
HELP balances
128-15(1)
A person's
HELP balance
at a particular time is:
(a)
if the *HELP loan limit in relation to the person at the time exceeds the sum of all of the amounts of:
(i)
*HECS-HELP assistance that has previously been payable for the person; and
(ii)
*FEE-HELP assistance that has previously been payable for the person; and
(iii)
*VET FEE-HELP assistance that has previously been payable for the person; and
(iv)
*VET student loans that have previously been payable for the person;
being that sum as reduced by any amounts previously re-credited to the person's HELP balance under Division 97 of this Act, Subdivision 104-B of this Act, section 128-25 of this Act, Subdivision 7-B of Schedule 1A to this Act or Part 6 of the VET Student Loans Act 2016 - that excess; and
(b)
otherwise - zero.
Note 1:
If an amount is to be re-credited to a HELP balance, the balance that is to be re-credited is worked out immediately before that re-crediting. The balance is worked out after the re-crediting by taking account of the amount re-credited. If a person's HELP loan limit has been reduced, the balance might not increase, or might not increase by the same amount as the amount re-credited.
Note 2:
For transitional provisions relating to this section, see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018. Those transitional provisions mean that subparagraph (1)(a)(i) does not apply in relation to a unit of study if the census date for the unit is before 1 January 2020.
History
S 128-15(1) amended by No 62 of 2020, s 3 and Sch 3 item 1, by substituting "payable for" for "payable to" in para (a)(i) to (iv), effective 19 June 2020.
128-15(1A)
For the purposes of subparagraphs (1)(a)(i), (ii) and (iii), an amount of *HECS-HELP assistance, *FEE-HELP assistance or *VET FEE-HELP assistance is taken to have been payable for a person immediately after the *census date for the unit to which the assistance relates (whether or not the amount has been paid at that time).
History
S 128-15(1A) inserted by No 62 of 2020, s 3 and Sch 3 item 2, effective 19 June 2020.
128-15(1B)
For the purposes of subparagraph (1)(a)(iv), an amount of a *VET student loan is taken to have been payable for a person immediately after the *census day for the course or a part of the course to which the loan amount relates (whether or not the amount has been paid at that time).
History
S 128-15(1B) inserted by No 62 of 2020, s 3 and Sch 3 item 2, effective 19 June 2020.
128-15(2)
For the purposes of subparagraphs (1)(a)(i), (ii), (iii) and (iv), it is immaterial whether amounts of *HECS-HELP assistance, *FEE-HELP assistance, *VET FEE-HELP assistance and *VET student loans have been repaid.
128-15(3)
Subsection (2) is enacted for the avoidance of doubt.
History
S 128-15 inserted by No 76 of 2018, s 3 and Sch 3 item 54, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 128-20
HELP loan limit
128-20(1)
The
HELP loan limit
is:
(a)
$106,319; or
(b)
in relation to a person who is enrolled in a *course of study in medicine, a *course of study in dentistry, a *course of study in veterinary science or a *course of study in aviation, while the person is enrolled in that course - $152,700.
Note:
The HELP loan limit is indexed under Part 5-6.
128-20(2)
A
course of study in aviation
is a *course of study, or an approved course (within the meaning of the VET Student Loans Act 2016), specified in the FEE-HELP Guidelines for the purposes of this subsection.
History
S 128-20(2) substituted by No 62 of 2020, s 3 and Sch 5 item 1, applicable in relation to a student who is enrolled in a course of study in aviation on or after 1 January 2020, whether the student enrolled in that course before or after 1 January 2020. S 128-20(2) formerly read:
128-20(2)
A
course of study in aviation
is a *course of study specified in the FEE-HELP Guidelines for the purposes of this subsection.
History
S 128-20 substituted by No 103 of 2019, s 3 and Sch 1 item 1, applicable in relation to a student who is enrolled in such a course of study on or after 1 January 2020, whether the student enrolled in the course before or after 1 January 2020. S 128-20 formerly read:
SECTION 128-20 HELP loan limit
128-20
The
HELP loan limit
is:
(a)
the amount that would have been the FEE-HELP limit under repealed paragraph 104-20(a) on 1 January 2020 if it were assumed that section 104-20 had not been repealed, and section 198-5 had not been amended, by the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018; or
(b)
in relation to a person who is enrolled in a *course of study in medicine, a *course of study in dentistry or a *course of study in veterinary science, while the person is enrolled in that course - the amount that would have been the FEE-HELP limit under repealed paragraph 104-20(b) on 1 January 2020 if it were assumed that section 104-20 had not been repealed, and section 198-5 had not been amended, by the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.
Note:
The HELP loan limit is indexed under Part 5-6.
S 128-20 inserted by No 76 of 2018, s 3 and Sch 3 item 54, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 128-25
Re-crediting HELP balance - discharge of HELP debt etc.
128-25(1)
If, during:
(a)
the financial year starting on 1 July 2019; or
(b)
a later financial year;
a payment was made in discharge of the whole or a part of a debt that a person owes to the Commonwealth under Chapter 4, the *Commissioner must:
(c)
notify the payment to the Secretary; and
(d)
do so as soon as practicable after the end of that financial year.
Note 1:
The payment may be a voluntary repayment.
Note 2:
The payment may be in the form of the application of an amount against the debt.
128-25(2)
If the Secretary is so notified, the Secretary must re-credit the person's *HELP balance with an amount equal to the amount of the payment.
128-25(3)
If, under section 142-15 or 144-10, the *Secretary determines, during a financial year, that an amount is to be reduced from a person's *accumulated HELP debt, the Secretary must re-credit the person's *HELP balance with an amount equal to the amount reduced as soon as practicable after the end of that financial year.
History
S 128-25(3) amended by No 3 of 2023, s 3 and Sch 2 item 1, by inserting "or 144-10" , effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
S 128-25(3) inserted by No 103 of 2019, s 3 and Sch 2 item 1, effective 1 January 2020.
History
S 128-25 inserted by No 76 of 2018, s 3 and Sch 3 item 54, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
PART 3-7 - STARTUP HELP ASSISTANCE
History
Part 3-7 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
Division 128A - Introduction
History
Div 128A inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128A-1
What this Part is about
A student may be entitled to STARTUP-HELP assistance for an accelerator program course if certain requirements are met. In particular:
(a) the course must lead to a qualification that is accredited, by a suitable higher education provider, as being integral to the development of startup businesses; and
(b) the provider must have selected the student for STARTUP-HELP assistance.
The amount of assistance to which the student may be entitled is based on the accelerator program course fee less any up-front payments. There is a limit on the total amount of assistance that the student can receive. The assistance is paid to the provider to discharge the student's liability to pay the fee.
Note 1:
Amounts of assistance under this Part may form part of a person's HELP debts that the Commonwealth recovers under Part 4-2.
Note 2:
This Part does not apply to Table C providers: see section 5-1.
History
S 128A-1 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128A-5
128A-5
The STARTUP-HELP Guidelines
*STARTUP-HELP assistance is also dealt with in the STARTUP-HELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The STARTUP-HELP Guidelines are made by the Minister under section 238-10.
History
S 128A-5 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
Division 128B - Who is entitled to STARTUP HELP assistance?
History
Div 128B inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128B-1
Entitlement to STARTUP-HELP assistance
Entitlement to STARTUP-HELP assistance
128B-1(1)
A student is entitled to *STARTUP-HELP assistance for an *accelerator program course in which the student is enrolled with a higher education provider if:
(a)
the student meets the citizenship or residency requirements under section 128B-30; and
(b)
any of the following apply:
(i)
the student is in the final year of an *undergraduate course of study;
(ii)
the student is enrolled in a *postgraduate course of study;
(iii)
the student was awarded, no more than 36 months before the person commenced the accelerator program course, a qualification at level 7, 8, 9 or 10 of the *Australian Qualifications Framework; and
(c)
the student has not received more than one amount of STARTUP-HELP assistance (for this purpose, disregard any amount of assistance that has been *reversed under Division 128E); and
(d)
the *census date for the accelerator program course is on or after 1 July 2023; and
(e)
the student:
(i)
enrolled in the accelerator program course on or before the census date for the course; and
(ii)
at the end of the census date, remained so enrolled; and
(f)
the student *meets the tax file number requirements (see section 187-1); and
(g)
the student has, on or before the census date for the accelerator program course, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance in relation to the course; and
(h)
the student has been assessed by the provider as academically suited to undertake the accelerator program course; and
(i)
the student has applied to the provider for receipt of STARTUP-HELP assistance in relation to the accelerator program course; and
(j)
the student meets the *student identifier requirements under subsection (4); and
(k)
the provider has selected the student for receipt of STARTUP-HELP assistance in relation to the accelerator program course (see section 128B-35).
128B-1(2)
Subsection (1) has effect subject to the following provisions:
(a)
section 128B-5 (multiple courses at same time);
(b)
section 128B-10 (not a genuine student);
(c)
section 128B-15 (unreasonable study load);
(d)
section 128B-20 (overseas campus).
Academically suited
128B-1(3)
The assessment for the purposes of paragraph (1)(h) must be done in accordance with any requirements specified in the Higher Education Provider Guidelines made for the purposes of section 19-42 (assessment of students as academically suited).
When a student meets the student identifier requirements
128B-1(4)
A student meets the *student identifier requirements under this subsection if:
(a)
the student has a student identifier immediately before the *census date; and
(b)
before the census date, the student notifies the student's student identifier to:
(i)
an *appropriate officer of the higher education provider; and
(ii)
the *Secretary.
128B-1(5)
A notification under paragraph (4)(b) may be included in a *request for Commonwealth assistance that the student has given to the higher education provider in relation to the *accelerator program course.
Definition of request for Commonwealth assistance
128B-1(6)
A
request for Commonwealth assistance
, in relation to a person enrolling in an *accelerator program course with a higher education provider, means a document:
(a)
in which the person requests the Commonwealth to provide assistance under this Act in relation to the course; and
(b)
that is in the form approved by the Minister.
History
S 128B-1 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128B-5
No entitlement: multiple courses at same time
128B-5(1)
If, apart from this subsection, a student would be entitled to *STARTUP-HELP assistance under subsection 128B-1(1) for 2 or more *accelerator program courses in which the student is enrolled at the same time, the student is entitled to STARTUP-HELP assistance for only the one course selected under subsection (2) of this section.
128B-5(2)
The one course for which the student is entitled is selected by applying either or both of the following principles, as needed:
(a)
if the student enrolled at the same time in 2 or more courses - select the course the student elects, in writing, for the purposes of this paragraph;
(b)
if the student enrolled at different times in 2 or more courses - select the course the student enrolled in first.
128B-5(3)
The STARTUP-HELP Guidelines may prescribe requirements and other matters in relation to elections by students for the purposes of paragraph (2)(a).
History
S 128B-5 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128B-10
No entitlement: not a genuine student
128B-10(1)
A student is not entitled to *STARTUP-HELP assistance for an *accelerator program course if the *Secretary determines that the student is not a genuine student in relation to the course.
Note:
A decision under this subsection that a student is not entitled to STARTUP-HELP assistance is reviewable under Part 5-7.
128B-10(2)
In determining whether a student is a genuine student for the purposes of subsection (1), the *Secretary must have regard to the matters (if any) specified in the Higher Education Provider Guidelines.
128B-10(3)
If a determination under subsection (1) is made in writing, the determination is not a legislative instrument.
History
S 128B-10 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128B-15
No entitlement: unreasonable study load
128B-15(1)
A student is not entitled to *STARTUP-HELP assistance for an *accelerator program course (a
new course
) provided, or to be provided, by a higher education provider if the sum of the following amounts is more than 2:
(a)
the *EFTSL value of the new course;
(b)
the sum of the EFTSL values of each other unit of study:
(i)
that has a *census date during the 12 month period ending on the census date for the new course; and
(ii)
for which the person is entitled to *HECS-HELP assistance or *FEE-HELP assistance, or would be so entitled but for the previous operation of this section, or section 36-12, in relation to the other unit of study;
(c)
the sum of the EFTSL values of each other accelerator program course:
(i)
that has a census date during the 12 month period ending on the census date for the new course; and
(ii)
for which the person is entitled to STARTUP-HELP assistance, or would be so entitled but for the previous operation of this section in relation to the other accelerator program course.
128B-15(2)
Subsection (1) does not apply if the higher education provider determines that undertaking the new course will not impose an unreasonable study load on the person, having regard to:
(a)
whether the person has the demonstrated capacity and capability to successfully complete courses of study or *accelerator program courses that have a combined total *EFTSL value of more than 2; and
(b)
the matters (if any) specified by the Higher Education Provider Guidelines for the purposes of this paragraph.
Note:
A decision under this subsection that undertaking a new accelerator program course will impose an unreasonable study load on a student is reviewable under Part 5-7.
128B-15(3)
A decision of a higher education provider under subsection (2) must be in accordance with the Higher Education Provider Guidelines.
128B-15(4)
If a determination under subsection (2) is made in writing, the determination is not a legislative instrument.
128B-15(5)
If a higher education provider is unable to act for one or more of the purposes of this section, the *Secretary may act as if one or more of the references in this section to the provider were a reference to the Secretary.
History
S 128B-15 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128B-20
128B-20
No entitlement: overseas campus
A student is not entitled to *STARTUP-HELP assistance for an *accelerator program course if the course is, or is to be, undertaken by the student primarily at an overseas campus.
History
S 128B-20 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128B-25
Accelerator program course
128B-25(1)
An
accelerator program course
is a structured and integrated program of education and mentoring that:
(a)
is designed to develop a person's skills, capabilities and connections for the purposes of startup businesses; and
(b)
meets the requirements in subsection (2).
128B-25(2)
The requirements are that:
(a)
the course leads to the award of a qualification accredited by the higher education provider under subsection (3); and
(b)
the course has an *EFTSL value of at least 0.5 EFTSL and no more than one EFTSL; and
(c)
any other requirements set out in the STARTUP-HELP Guidelines are met.
128B-25(3)
For the purposes of paragraph (2)(a), a higher education provider may self-accredit a qualification as being integral to the development of startup businesses, if the provider is:
(a)
registered under the *TEQSA Act in the provider category "Australian University" or "University College"; and
(b)
authorised under that Act to self-accredit some or all of its courses of study.
128B-25(4)
In self-accrediting the qualification, the higher education provider must, as far as practicable, apply the same procedures it applies when self-accrediting a *course of study.
128B-25(5)
Without limiting the matters that may be included in the STARTUP-HELP Guidelines made for the purposes of paragraph (2)(c), those guidelines must require that the higher education provider providing the *accelerator program course has arrangements in place to ensure that, in circumstances where a student creates intellectual property through undertaking the course, the student owns the intellectual property unless there is an agreement that provides otherwisein place between the student and the provider.
History
S 128B-25 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128B-30
Citizenship or residency requirements
128B-30(1)
A student meets the citizenship or residency requirements under this section in relation to an *accelerator program course if:
(a)
the student is an Australian citizen; or
(b)
the student:
(i)
is a *permanent humanitarian visa holder, an *eligible former permanent humanitarian visa holder or a *Pacific engagement visa holder; and
(ii)
will be resident in Australia for the duration of the accelerator program course.
History
S 128B-30(1) substituted by No 100 of 2023, s 3 and Sch 1 item 8, applicable in relation to an accelerator program course with a census date that is on or after 29 March 2024, whether the student: (a) becomes a Pacific engagement visa holder; or (b) enrols in the accelerator program course; before, on or after 29 March 2024. S 128B-30(1) formerly read:
128B-30(1)
A student meets the citizenship or residency requirements under this section in relation to an *accelerator program course if the student is:
(a)
an Australian citizen; or
(b)
a *permanent humanitarian visa holder, or an *eligible former permanent humanitarian visa holder, who will be resident in Australia for the duration of the accelerator program course.
128B-30(2)
In determining, for the purposes of subparagraph (1)(b)(ii), whether the student will be resident in Australia for the duration of the *accelerator program course, disregard any period of residence outside Australia that:
(a)
cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the accelerator program course; or
(b)
is required for the purpose of completing a requirement of the accelerator program course.
History
S 128B-30(2)amended by No 100 of 2023, s 3 and Sch 1 item 9, by substituting "subparagraph (1)(b)(ii)" for "paragraph (1)(b)", applicable in relation to an accelerator program course with a census date that is on or after 29 March 2024, whether the student: (a) becomes a Pacific engagement visa holder; or (b) enrols in the accelerator program course; before, on or after 29 March 2024.
128B-30(3)
A student also meets the citizenship or residency requirements under this section in relation to an *accelerator program course if the student:
(a)
is a New Zealand citizen who will be resident in Australia for the duration of the accelerator program course; and
(b)
either:
(i)
holds a special category visa under the Migration Act 1958; or
(ii)
is a *permanent visa holder who, immediately before becoming a permanent visa holder, held a special category visa under the Migration Act 1958; and
(c)
both:
(i)
first began to be usually resident in Australia at least 10 years before the day referred to in subsection (4) (the
test day
); and
(ii)
was a *dependent child when the student first began to be usually resident in Australia; and
(d)
has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and
(e)
has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.
History
S 128B-30(3) amended by No 36 of 2023, s 3 and Sch 4 item 5, by substituting para (b), effective 29 June 2023. Para (b) formerly read:
(b)
holds a special category visa under the Migration Act 1958; and
128B-30(4)
In determining, for the purpose of paragraph (3)(a), whether the student will be resident in Australia for the duration of the *accelerator program course, disregard any period of residence outside Australia that:
(a)
cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the accelerator program course; or
(b)
is required for the purpose of completing a requirement of the accelerator program course.
128B-30(5)
For the purposes of subsection (3), the day is the earlier of:
(a)
if the student has previously made a successful *request for Commonwealth assistance under this Chapter for a unit that forms part of a *course of study, or for another *accelerator program course - the day the student first made such a request; or
(b)
otherwise - the day the student made the request for Commonwealth assistance in relation to the accelerator program course.
128B-30(6)
Despite subsections (1), (2) and (3), a student does not meet the citizenship or residency requirements in relation to an *accelerator program course if the higher education provider reasonably expects that the student will not undertake in Australia any of the accelerator program course.
History
S 128B-30 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128B-35
Selection of students for receipt of STARTUP-HELP assistance
128B-35(1)
The STARTUP-HELP Guidelines may set out principles and procedures that higher education providers must follow in deciding whether to select persons for receipt of *STARTUP-HELP assistance.
128B-35(2)
Any decision by a higher education provider whether to select a person for receipt of *STARTUP-HELP assistance must be made in accordance with the STARTUP-HELP Guidelines.
128B-35(3)
Without limiting the matters that may be included in the STARTUP-HELP Guidelines made for the purposes of subsection (2), those guidelines may deal with:
(a)
the number of its students whom higher education providers may select for receipt of *STARTUP-HELP assistance; or
(b)
how that number is to be determined.
History
S 128B-35 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128B-40
Allocation of STARTUP-HELP assistance
128B-40(1)
The STARTUP-HELP Guidelines must include principles and procedures for ensuring, so far as reasonably practicable, that at least 25% of the persons selected for receipt of *STARTUP-HELP assistance are students enrolled in an *accelerator program course at a regional university.
128B-40(2)
For the purposes of subsection (1), a
regional university
is one of the following:
(a)
Charles Sturt University;
(b)
Central Queensland University;
(c)
Federation University Australia;
(d)
Southern Cross University;
(e)
University of New England;
(f)
University of Southern Queensland;
(g)
University of the Sunshine Coast;
(h)
any other university, or particular campus of a university, specified in the STARTUP-HELP Guidelines.
128B-40(3)
The Minister must not specify a university, or particular campus of a university, in the START-UP HELP Guidelines made for the purposes of paragraph (2)(h), unless the university or campus is located in a Remoteness Area categorised under the *ABS Remoteness Structure as Inner Regional Australia, Outer Regional Australia, Remote Australia or Very Remote Australia.
History
S 128B-40 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
Division 128C - How are amounts of STARTUP-HELP assistance worked out?
History
Div 128C inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128C-1
128C-1
The amount of STARTUP-HELP assistance for an accelerator program course
The amount of *STARTUP-HELP assistance to which a student is entitled for an *accelerator program course is the difference between:
(a)
the student's *accelerator program course fee for the course; and
(b)
the sum of any *up-front payments made in relation to the course.
History
S 128C-1 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128C-5
Up-front payments
128C-5(1)
An
up-front payment
, in relation to an *accelerator program course for which a student is liable to pay an *accelerator program course fee, is a payment of all or part of the student's accelerator program course fee for the course, other than a payment of *STARTUP-HELP assistance under this Part.
128C-5(2)
The payment must be made on or before the *census date for the course.
History
S 128C-5 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128C-10
Maximum accelerator program course fee
128C-10(1)
A person's *accelerator program course fee, for an *accelerator program course, must not exceed:
(a)
for a course that has an *EFTSL value of one EFTSL - the *maximum student contribution amount specified, in item 4 of the table in section 93-10, for a place for a *non-grandfathered student in a unit of study in Medicine, Dentistry or Veterinary Science; or
(b)
for a course that has an EFTSL value of less than one EFTSL - the amount worked out as follows:
|
The amount mentioned in paragraph (a) |
× |
The EFTSL value of the accelerator program course |
|
128C-10(2)
If an amount worked out by using the formula in subsection (1) is an amount made up of dollars and cents, round the amount down to the nearest dollar.
History
S 128C-10 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
Division 128D - How are amounts of STARTUP HELP assistance paid?
Note:
Part 5-1 deals generally with payments by the Commonwealth under this Act.
History
Div 128D inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128D-1
128D-1
Payments to higher education providers
If a student is entitled to an amount of *STARTUP-HELP assistance for an *accelerator program course in which the student is enrolled with a higher education provider, the Commonwealth must:
(a)
as a benefit to the student, lend to the student the amount of STARTUP-HELP assistance; and
(b)
pay to the provider the amount lent in discharge of the student's liability to pay the student's *accelerator program course fee for the course.
History
S 128D-1 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128D-5
128D-5
Repayment by higher education provider if STARTUP-HELP assistance is reversed
If an amount of *STARTUP-HELP assistance that a person received for an *accelerator program course is *reversed under Division 128E, the higher education provider must:
(a)
pay to the Commonwealth an amount equal to the amount (if any) that was paid to the provider for the course under section 128D-1; and
(b)
pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to the person's *accelerator program course fee for the course.
History
S 128D-5 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128D-10
128D-10
Implications of reversal for person's liability to higher education provider for accelerator program course fee
If an amount of *STARTUP-HELP assistance received by a person for an *accelerator program course is *reversed under Division 128E, the person is discharged from all liability to pay or account for so much of the person's *accelerator program course fee for the course as is equal to that amount.
History
S 128D-10 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
Division 128E - Reversal of STARTUP HELP assistance
History
Div 128E inserted by No 36 of 2023, s3 and Sch 1 item 25, effective 29 June 2023.
Subdivision 128E-A - Reversal in special circumstances
History
Subdiv 128E-A inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128E-1
Reversal of STARTUP-HELP assistance: special circumstances
128E-1(1)
A higher education provider must, on the *Secretary's behalf, determine that this section applies to a person, in relation to an amount of *STARTUP-HELP assistance that the person received for an *accelerator program course with the provider, if:
(a)
the person has been enrolled in the accelerator program course with the provider; and
(b)
the person has not completed the requirements for the accelerator program course during the period during which the person undertook, or was to undertake, the course; and
(c)
the provider is satisfied that special circumstances apply to the person (see section 128E-5); and
(d)
the person applies in writing to the provider for either or both of the following:
(i)
the repayment of any amounts that the person paid in relation to the person's *accelerator program course fee;
(ii)
the remission of the person's *STARTUP-HELP debt in relation to the accelerator program course; and
(e)
either:
(i)
the application is made before the end of the application period under section 128E-10; or
(ii)
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.
Note:
A decision that this section does not apply to a person is reviewable under Part 5-7.
128E-1(2)
If the provider determines that this section applies to the person in relation to the amount of assistance, the amount is
reversed
.
Note:
For the consequences if an amount of assistance is reversed, see sections 128D-5, 128D-10 and 137-17. See also paragraph 128B-1(1)(c).
128E-1(3)
If the provider is unable to act for one or more of the purposes of this Subdivision, the *Secretary may act as if one or more of the references in this Subdivision to the provider were a reference to the Secretary.
History
S 128E-1 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128E-5
Special circumstances
128E-5(1)
For the purposes of paragraph 128E-1(1)(c), 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:
(a)
are beyond the person's control; and
(b)
do not make their full impact on the person until on or after the *census date for the *accelerator program course; and
(c)
make it impracticable for the person to complete the requirements for the course in the period during which the person undertook, or was to undertake, the course.
128E-5(2)
If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Note:
The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying a student contribution amount or an amount of HECS-HELP assistance) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
History
S 128E-5 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128E-10
Application period
128E-10(1)
If:
(a)
the person applying under paragraph 128E-1(1)(d) in relation to an amount of *STARTUP-HELP assistance for an *accelerator program course has withdrawn their enrolment in the course; and
(b)
the higher education provider gives notice to the person that the withdrawal has taken effect;
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.
128E-10(2)
If subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the course.
History
S 128E-10 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128E-15
Dealing with applications
128E-15(1)
If:
(a)
the application is made under paragraph 128E-1(1)(d) before the end of the relevant application period; or
(b)
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;
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.
128E-15(2)
The notice must include a statement of the reasons for the decision.
History
S 128E-15 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
Subdivision 128E-B - Reversal in other circumstances
History
Subdiv 128E-B inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128E-20
128E-20
Reversal of STARTUP-HELP assistance: no tax file number
An amount of *STARTUP-HELP assistance that a person received for an *accelerator program course with a higher education provider is
reversed
if:
(a)
the person has been enrolled in the accelerator program course with the provider; and
(b)
subsection 193-20(1) (no entitlement to STARTUP-HELP assistance for students without tax file numbers) applies to the person in relation to the course.
Note:
For the consequences if an amount of assistance is reversed, see sections 128D-5, 128D-10 and 137-17. See also paragraph 128B-1(1)(c).
History
S 128E-20 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128E-25
128E-25
Reversal of STARTUP-HELP assistance: higher education provider completes request for assistance
An amount of *STARTUP-HELP assistance that a person received for an *accelerator program course with a higher education provider is
reversed
if the provider completes any part of the *request for Commonwealth assistance in relation to the course that the person is required to complete.
Note:
For the consequences if an amount of assistance is reversed, see sections 128D-5, 128D-10 and 137-17. See also paragraph 128B-1(1)(c).
History
S 128E-25 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128E-30
128E-30
Reversal of STARTUP-HELP assistance: no entitlement
An amount of *STARTUP-HELP assistance that a person received for an *accelerator program course with a higher education provider is
reversed
if the *Secretary is satisfied that the person was not entitled to receive STARTUP-HELP assistance for the course with the provider.
Note:
For the consequences if an amount of assistance is reversed, see sections 128D-5, 128D-10 and 137-17. See also paragraph 128B-1(1)(c).
History
S 128E-30 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128E-35
128E-35
Reversal of STARTUP-HELP assistance: no assessment of whether academically suited
An amount of *STARTUP-HELP assistance that a person received for an *accelerator program course with a higher education provider is
reversed
if the person has not been assessed by the provider as academically suited to undertake the course.
History
S 128E-35 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
SECTION 128E-40
Reversal of STARTUP-HELP assistance: material non-compliance
128E-40(1)
An amount of *STARTUP-HELP assistance that a person received for an *accelerator program course provided during a period by a higher education provider is
reversed
if a report of an audit conducted in accordance with subsection (2) finds that there is any material non-compliance with respect to the course provided in the period.
Note:
For the consequences if an amount of assistance is reversed, see sections 128D-5, 128D-10 and 137-17. See also paragraph 128B-1(1)(c).
128E-40(2)
The STARTUP-HELP Guidelines must require higher education providers that provide *accelerator program courses to conduct internal audits, or to arrange for audits, of compliance with the STARTUP-HELP Guidelines with respect to the courses. The Guidelines must prescribe any or all of the following:
(a)
circumstances in which audits must be conducted or arranged;
(b)
requirements in relation to when and how audits must be conducted or arranged and reported on.
History
S 128E-40 inserted by No 36 of 2023, s 3 and Sch 1 item 25, effective 29 June 2023.
Chapter 4 - Repayment of loans
Division 129 - Introduction
SECTION 129-1
What this Chapter is about
Loans that the Commonwealth makes to students under Chapter 3 are repayable under this Chapter. Loans that the Commonwealth makes to students under Schedule 1A or (before 1 July 2019) under the VET Student Loans Act 2016 are also repayable under this Chapter.
Each loan is incorporated into the person's accumulated HELP debt (see Part 4-1).
Under Part 4-2, the accumulated debts can be repaid in 2 ways:
• a person may make voluntary repayments; or
• compulsory repayments (based on a person's income) are made using the system for payment of income tax.
Accumulated HELP debt, or the indexation of that debt, may be reduced for certain HELP debtors working in rural, remote or very remote areas (see Divisions 142 and 144).
Note:
Loans that the Commonwealth makes to students under the VET Student Loans Act 2016 on or after 1 July 2019 are repayable under that Act.
History
S 129-1 amended by No 3 of 2023, s 3 and Sch 2 item 2, by substituting "Accumulated HELP debt, or the indexation of that debt, may be reduced for certain HELP debtors working in rural, remote or very remote areas (see Divisions 142 and 144)." for "A very remote HELP debtor's accumulated debt, or the indexation of that debt, may be reduced (see Division 142).", effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
S 129-1 amended by No 103 of 2019, s 3 and Sch 2 item 2, by inserting "A very remote HELP debtor's accumulated debt, or the indexation of that debt, may be reduced (see Division 142).", effective 1 January 2020.
S 129-1 amended by No 116 of 2018, s 3 and Sch 1 items 1 and 2, by inserting "(before 1 July 2019) under" and inserting the note, effective 1 July 2019.
S 129-1 amended by No 100 of 2016, s 3 and Sch 1 item 4, by inserting "or the VET Student Loans Act 2016", effective 1 January 2017. For transitional provision, see note under s 137-19.
S 129-1 amended by No 169 of 2015, s 3 and Sch 4 item 1, by omitting "(which may attract a repayment bonus)" after "make voluntary repayments", applicable in relation to a voluntary repayment made on or after 1 January 2017, regardless of when the debt to which the repayment relates was incurred.
S 129-1 substituted by No 170 of 2007, s 3 and Sch 1 item 9, effective 1 January 2008. S 129-1 formerly read:
SECTION 129-1 What this Chapter is about
129-1
Loans that the Commonwealth makes to students under Chapter 3 are repayable under this Chapter.
Each loan is incorporated into the person's accumulated HELP debt (see Part 4-1).
Under Part 4-2, the accumulated debts can be repaid in 2 ways:
• a person may make voluntary repayments (which may attract a repayment bonus); or
• compulsory repayments (based on a person's income) are made using the system for payment of income tax.
PART 4-1 - INDEBTEDNESS
Division 134 - Introduction
SECTION 134-1
What this Part is about
A person incurs a HELP debt if he or she receives, as HECS-HELP assistance, FEE-HELP assistance, OS-HELP assistance, SA-HELP assistance or STARTUP-HELP assistance, a loan from the Commonwealth under Chapter 3.
A person also incurs a HELP debt if he or she receives, as VET FEE-HELP assistance, a loan from the Commonwealth under Schedule 1A.
A person will also have incurred a HELP debt if (before 1 July 2019) the Secretary used an amount of a VET student loan approved under the VET Student Loans Act 2016 to pay tuition fees for the person.
HELP debts are incorporated into the person's accumulated HELP debt. This accumulated debt forms the basis of working out the amounts that the person is obliged to repay (see Part 4-2.
Note:
If the Secretary uses an amount of a VET student loan approved under the VET Student Loans Act 2016 to pay tuition fees for a person on or after 1 July 2019, the person incurs a debt under that Act.
History
S 134-1 amended by No 36 of 2023, s 3 and Sch 1 item 26, by substituting ", SA-HELP assistance or STARTUP-HELP assistance" for "or SA-HELP assistance", effective 29 June 2023.
S 134-1 amended by No 116 of 2018, s 3 and Sch 1 items 3 and 4, by substituting "will also have incurred a HELP debt if (before 1 July 2019) the Secretary used" for "also incurs a HELP debt if the Secretary uses" and inserting the note, effective 1 July 2019.
S 134-1 amended by No 100 of 2016, s 3 and Sch 1 item 5, by inserting "A person also incurs a HELP debt if the Secretary uses an amount of a VET student loan approved under the VET Student Loans Act 2016 to pay tuition fees for the person.", effective 1 January 2017. For transitional provision, see note under s 137-19.
S 134-1 amended by No 130 of 2011, s 3 and Sch 1 item 11, by substituting ", OS-HELP assistance or SA-HELP assistance" for "or OS-HELP assistance", effective 1 January 2012.
S 134-1 substituted by No 170 of 2007, s 3 and Sch 1 item 10, effective 1 January 2008. S 134-1 formerly read:
SECTION 134-1 What this Part is about
134-1
A person incurs a HELP debt if he or she receives, as HECS-HELP assistance, FEE-HELP assistance or OS-HELP assistance, a loan from the Commonwealth under Chapter 3.
HELP debts are incorporated into the person's accumulated HELP debt. This accumulated debt forms the basis of working out the amounts that the person is obliged to repay (see Part 4-2).
SECTION 134-5
HELP Debtor Guidelines
134-5(1)
Matters relating to *location-preferred HELP debtors (teachers) are dealt with in the HELP Debtor Guidelines (Teachers).
134-5(2)
Matters relating to *location-preferred HELP debtors (health practitioners) are dealt with in the HELP Debtor Guidelines (Health Practitioners).
134-5(3)
The provisions of this Part indicate when a particular matter is or may be dealt with in those Guidelines.
Note:
The HELP Debtor Guidelines (Teachers) and HELP Debtor Guidelines (Health Practitioners) are made by the Minister under section 238-10.
History
S 134-5 substituted by No 3 of 2023, s 3 and Sch 2 item 3, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading. S 134-5 formerly read:
SECTION 134-5 The Very Remote HELP Debtor Guidelines
134-5
Matters relating to *very remote HELP debtors are also dealt with in the Very Remote HELP Debtor Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in those Guidelines.
Note:
The Very Remote HELP Debtor Guidelines are made by the Minister under section 238-10.
S 134-5 inserted by No 103 of 2019, s 3 and Sch 2 item 3, effective 1 January 2020.
Division 137 - How do HELP debts arise?
SECTION 137-1
137-1
HELP debts
The following are
HELP debts
:
(a)
*HECS-HELP debts;
(b)
*FEE-HELP debts;
(c)
*OS-HELP debts;
(ca)
*SA-HELP debts;
(cb)
*STARTUP-HELP debts;
(d)
*VET FEE-HELP debts;
(e)
*pre-1 July 2019 VSL debts.
History
S 137-1 amended by No 36 of 2023, s 3 and Sch 1 item 27, by inserting para (cb), effective 29 June 2023.
S 137-1 amended by No 116 of 2018, s 3 and Sch 1 item 5, by substituting para (e), effective 1 July 2019. Para (e) formerly read:
(e)
*VET student loan debts.
S 137-1 amended by No 100 of 2016, s 3 and Sch 1 item 6, by inserting para (e), effective 1 January 2017. For transitional provision, see note under s 137-19.
S 137-1 amended by No 130 of 2011, s 3 and Sch 1 item 12, by inserting para (ca), effective 1 January 2012.
S 137-1 amended by No 170 of 2007, s 3 and Sch 1 item 11, by inserting para (d), effective 1 January 2008.
SECTION 137-5
HECS-HELP debts
Incurring HECS-HELP debts
137-5(1)
A person incurs a debt to the Commonwealth if, under section 96-1, the Commonwealth:
(a)
makes a loan to the person; and
(b)
uses the amount lent to make a payment in discharge of the person's liability to pay his or her *student contribution amount for a unit of study.
The debt is a
HECS-HELP
debt.
History
S 137-5(1) amended by No 64 of 2022, s 3 and Sch 4 item 12, by omitting "or 96-2" after "section 96-1", applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023.
S 137-5(1) amended by No 93 of 2020, s 3 and Sch 4A item 8, by inserting "or 96-2" after "section 96-1", applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
S 137-5(1) amended by No 169 of 2015, s 3 and Sch 3 item 6, by omitting "or 96-5" after "section 96-1", applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017.
137-5(2)
The amount of the *HECS-HELP debt is the amount of the loan.
When HECS-HELP debts are incurred
137-5(3)
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.
Remission of HECS-HELP debts
137-5(4)
A person's *HECS-HELP debt in relation to a unit of study is taken to be remitted if section 36-20, 36-24A, 36-24B, 36-24BB or 36-24BC applies to the person (even if subsection 36-20(3), 36-24BB(3) or 36-24BC(3) applies to the provider in relation to the person).
History
S 137-5(4) amended by No 55 of 2021, s 3 and Sch 1 items 9 and 10, by substituting ", 36-24B, 36-24BB or 36-24BC" for "or 36-24B" and inserting ", 36-24BB(3) or 36-24BC(3)", effective 25 June 2021. For application provisions, see note under s 36-24BB.
S 137-5(4) substituted by No 104 of 2011, s 3 and Sch 2 item 17, 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. S 137-5(4) formerly read:
137-5(4)
A person's *HECS-HELP debt in relation to a unit of study is taken to be remitted if the person's *SLE is re-credited under Division 79 in relation to the unit.
137-5(5)
A person's *HECS-HELP debt in relation to a unit of study is taken to be remitted if the person's *HELP balance is re-credited under Division 97 in relation to the unit.
Note:
The debt is taken to be remitted even if the person's HELP balance is not increased by an amount equal to the amount re-credited.
History
S 137-5(5) amended by No 93 of 2020, s 3 and Sch 4 item 31, by substituting "Division 97" for "section 97-25, 97-27 or 97-42", effective 1 January 2021.
S 137-5(5) inserted by No 76 of 2018, s 3 and Sch 3 item 55, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 137-5(5) repealed by No 104 of 2011, s 3 and Sch 2 item 17, 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. S 137-5(5) formerly read:
137-5(5)
A person's *HECS-HELP debt, in relation to a unit of study that wholly consists of *work experience in industry, is taken to be remitted if section 36-22, 36-22A or 36-23 applies to the person (even if subsection 36-22(2A) applies to the provider in relation to the person).
SECTION 137-10
FEE-HELP debts
Incurring FEE-HELP debts
137-10(1)
A person incurs a debt to the Commonwealth if, under section 110-1, the Commonwealth:
(a)
makes a loan to the person; and
(b)
uses the amount lent to make a payment in discharge of the person's liability to pay his or her *tuition fee for a unit of study.
The debt is a
FEE-HELP
debt.
137-10(2)
The amount of the *FEE-HELP debt is:
(a)
if the loan relates to *FEE-HELP assistance for a unit of study provided by a Table B provider - the amount of the loan; or
(b)
if paragraph (a) does not apply and the loan relates to FEE-HELP assistance for a unit of study that forms part of an *undergraduate course of study:
(i)
for a unit of study with a *census date between 1 April 2020 and 31 December 2022 - the amount of the loan; or
(ia)
for a unit of study with a census date on or after 1 January 2023 - an amount equal to 120% of the loan; or
(ii)
otherwise - an amount equal to 125% of the loan; or
(c)
if neither paragraph (a) nor (b) applies - the amount of the loan.
History
S 137-10(2) amended by No 64 of 2022, s 3 and Sch 2 items 1 and 2, by substituting "31 December 2022" for "31 December 2021" in para (b)(i) and "1 January 2023" for "1 January 2022" in para (b)(ia), effective 1 January 2022.
S 137-10(2) amended by No 51 of 2021, s 3 and Sch 1 items 1 and 2, by substituting "31 December 2021" for "30 June 2021" in para (b)(i) and "1 January 2022" for "1 July 2021" in para (b)(ia), effective 24 June 2021.
S 137-10(2) amended by No 93 of 2020, s 3 and Sch 5 items 9A and 9B, by substituting "30 June 2021" for "30 September 2020" in para (b)(i) and inserting para (b)(ia), effective 28 October 2020.
S 137-10(2) amended by No 62 of 2020, s 3 and Sch 4 item 1, by substituting para (b), effective 19 June 2020. Para (b) formerly read:
(b)
if paragraph (a) does not apply and the loan relates to *FEE-HELP assistance that forms part of an *undergraduate course of study - an amount equal to 125% of the loan; or
S 137-10(2) substituted by No 76 of 2018 (as amended by No 103 of 2019), s 3 and Sch 4 item 1, applicable in relation to a unit of study if the census date for the unit is on or after 1 January 2019. S 137-10(2) formerly read:
137-10(2)
The amount of the *FEE-HELP debt is:
(a)
if the loan relates to *FEE-HELP assistance for a unit of study that forms part of an *undergraduate course of study - an amount equal to 125% of the loan; or
(b)
if paragraph (a) does not apply - the amount of the loan.
S 137-10(2) amended by No 132 of 2010, s 3 and Sch 1 item 1, by substituting "125%" for "120%" in para (a), applicable to FEE-HELP debts incurred on or after 1 January 2011 in relation to units of study whose census dates are on or after 1 January 2011.
When FEE-HELP debts are incurred
137-10(3)
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.
Remission of FEE-HELP debts
137-10(4)
A person's *FEE-HELP debt in relation to a unit of study is taken to be remitted if the person's *HELP balance is re-credited under section 104-25, 104-27, 104-42, 104-43 or 104-44 in relation to the unit.
Note:
The debt is taken to be remitted even if the person's HELP balance is not increased by an amount equal to the amount re-credited.
History
S 137-10(4) amended by No 76 of 2018, s 3 and Sch 3 items 56 and 57, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 137-10(4) amended by No 83 of 2017, s 3 and Sch 3 item 31, by substituting ", 104-42, 104-43 or 104-44" for "or 104-42", effective 17 August 2017.
S 137-10(4) amended by No 121 of 2006, s 3 and Sch 2 item 6, by inserting the note at the end, effective 1 January 2007.
SECTION 137-15
OS-HELP debts
Incurring OS-HELP debts
137-15(1)
A person incurs a debt to the Commonwealth if, under section 124-1, the Commonwealth makes a loan to the person. The debt is an
OS-HELP debt
.
Note:
For a student who is entitled to a supplementary amount for Asian language study, see subsections 124-1(2A) and (2B).
History
S 137-15(1) amended by No 112 of 2013, s 3 and Sch 1 item 20, by inserting the note at the end, effective 30 June 2013. For application provisions see note under s 121-1.
137-15(2)
The amount of the *OS-HELP debt is an amount equal to the amount of the loan.
History
S 137-15(2) substituted by No 86 of 2009, s 3 and Sch 6 item 1, applicable in relation to OS-HELP debts incurred on or after 1 January 2010. S 137-15(2) formerly read:
137-15(2)
The amount of the *OS-HELP debt is an amount equal to 120% of the amount of the loan.
When OS-HELP debts are incurred
137-15(3)
The *OS-HELP debt is taken to have been incurred on the day on which a higher education provider, on the Commonwealth's behalf, paid the amount lent to the person.
SECTION 137-16
SA-HELP debts
Incurring SA-HELP debts
137-16(1)
A person incurs a debt to the Commonwealth if, under section 128-1, the Commonwealth:
(a)
makes a loan to the person; and
(b)
uses the amount lent to make a payment of the person's liability to pay a *student services and amenities fee.
The debt is an
SA-HELP debt
.
137-16(2)
The amount of the *SA-HELP debt is an amount equal to the loan.
When SA-HELP debts are incurred
137-16(3)
An *SA-HELP debt is taken to have been incurred by a person immediately after the day on which the *student services and amenities fee to which the loan relates is payable, whether or not the Commonwealth has made a payment in respect of the fee.
Remission of SA-HELP debts
137-16(4)
A person's *SA-HELP debt in relation to a *student services and amenities fee imposed by a higher education provider is taken to be remitted if, under section 128-5, the provider must repay the Commonwealth the amount the Commonwealth paid the provider in relation to the fee.
History
S 137-16 inserted by No 130 of 2011, s 3 and Sch 1 item 13, effective 1 January 2012.
SECTION 137-17
STARTUP-HELP debts
Incurring STARTUP-HELP debts
137-17(1)
A person incurs a debt to the Commonwealth if, under section 128D-1, the Commonwealth:
(a)
makes a loan to the person; and
(b)
uses the amount lent to make a payment in discharge of the person's liability to pay an *accelerator program course fee for an *accelerator program course.
The debt is a
STARTUP-HELP debt
.
137-17(2)
The amount of the *STARTUP-HELP debt is the amount of the loan.
When STARTUP-HELP debts are incurred
137-17(3)
A *STARTUP-HELP debt is taken to have been incurred by a person immediately after the *census date for the course, whether or not the Commonwealth has made a payment in respect of the person's *accelerator program course fee for the course.
Remission of STARTUP-HELP debts
137-17(4)
A person's *STARTUP-HELP debt in relation to an *accelerator program course is taken to be remitted if an amount of *STARTUP-HELP assistance that a person received for the course is *reversed under Division 128E.
History
S 137-17 inserted by No 36 of 2023, s 3 and Sch 1 item 28, effective 29 June 2023.
SECTION 137-18
VET FEE-HELP debts
Incurring VET FEE-HELP debts
137-18(1)
A person incurs a debt to the Commonwealth if, under clause 55 of Schedule 1A, the Commonwealth:
(a)
makes a loan to the person; and
(b)
uses the amount lent to make a payment in discharge of the person's liability to pay his or her *VET tuition fee for a *VET unit of study.The debt is a
VET FEE-HELP debt
.
137-18(2)
The amount of the *VET FEE-HELP debt is:
(a)
120% of the loan; or
(b)
if the *VET Guidelines specify a lesser percentage of the loan for the person - that lesser percentage of the loan.
Note:
For specification by class, see subsection 13(3) of the Legislation Act 2003.
History
S 137-18(2) amended by No 126 of 2015, s 3 and Sch 1 item 276, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003" in the note, effective 5 March 2016.
S 137-18(2) amended by No 160 of 2012, s 3 and Sch 3 item 1, by omitting "FEE-HELP" after "*VET" in para (b), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
S 137-18(2) substituted by No 121 of 2009, s 3 and Sch 2 item 1, applicable to VET FEE-HELP debts (incurred before, on or after 7 December 2009) relating to VET units of study whose census dates are on or after 1 July 2009. S 137-18(2) formerly read:
137-18(2)
The amount of the *VET FEE-HELP debt is the amount equal to 120% of the loan.
When VET FEE-HELP debts are incurred
137-18(3)
A *VET 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 *VET tuition fee for the unit.
Remission of VET FEE-HELP debts
137-18(4)
A person's *VET FEE-HELP debt in relation to a *VET unit of study is taken to be remitted if the person's *HELP balance is re-credited under clause 46, 46A, 46AA, 47 or 51 of Schedule 1A in relation to the unit.
Note:
The debt is taken to be remitted even if the person's HELP balance is not increased by an amount equal to the amount re-credited.
History
S 137-18(4) amended by No 76 of 2018, s 3 and Sch 3 items 58 and 59, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 137-18(4) amended by No 160 of 2018, s 3 and Sch 1 item 1, by inserting "46AA," after "46A,", effective 1 January 2019.
S 137-18(4) amended by No 168 of 2015, s 3 and Sch 1 item 1, by substituting "clause 46, 46A, 47 or 51" for "clause 46, 47 or 51", effective 31 December 2015.
137-18(5)
A person's *VET FEE-HELP debt in relation to a *VET unit of study is taken to be remitted to the extent that the person's *HELP balance is re-credited under clause 46B of Schedule 1A in relation to the unit.
History
S 137-18(5) amended by No 76 of 2018, s 3 and Sch 3 item 60, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 137-18(5) inserted by No 168 of 2015, s 3 and Sch 1 item 1A, effective 31 December 2015.
History
S 137-18 inserted by No 170 of 2007, s 3 and Sch 1 item 12, effective 1 January 2008.
SECTION 137-19
Pre-1 July 2019 VSL debts
137-19(1)
A debt incurred under this section as in force at any time before 1 July 2019 is a
pre-1 July 2019 VSL debt
.
History
S 137-19(1) substituted by No 116 of 2018, s 3 and Sch 1 item 7, effective 1 July 2019. S 137-19(1) formerly read:
Incurring VET student loan debts
137-19(1)
A person incurs a debt to the Commonwealth if, under the VET Student Loans Act 2016, the Secretary:
(a)
approves a *VET student loan for the person; and
(b)
uses an amount (the
loan amount
) covered by the VET student loan to pay tuition fees for the person for a course.
The debt is a
VET student loan debt
.
137-19(2)
(Repealed by No 116 of 2018)
History
S 137-19(2) repealed by No 116 of 2018, s 3 and Sch 1 item 7, effective 1 July 2019. S 137-19(2) formerly read:
Incurring VET student loan debts
137-19(2)
The amount of the *VET student loan debt is:
(a)
120% of the loan amount; or
(b)
if the rules made under the VET Students Loans Act 2016 specify a lesser percentage of the loan amount for the person - that lesser percentage of the loan amount.
Note:
For specification by class, see subsection 13(3) of the Legislation Act 2003.
137-19(3)
(Repealed by No 116 of 2018)
History
S 137-19(3) repealed by No 116 of 2018, s 3 and Sch 1 item 7, effective 1 July 2019. S 137-19(3) formerly read:
When VET student loan debts are incurred
137-19(3)
A *VET student loan debt is incurred on the day that the Secretary pays the loan amount.
137-19(4)
A person's *pre-1 July 2019 VSL debt, in relation to a loan amount (within the meaning of this section as in force at the time the debt was incurred), is taken to be remitted if the person's *HELP balance is re-credited under Part 6 of the VET Student Loans Act 2016 in relation to the loan amount.
Note:
The person's HELP balance may also be re-credited under section 128-25 of this Act (re-crediting on discharge of HELP debt etc.), but in those circumstances there is no related remission of debt under this subsection.
History
S 137-19(4) amended by No 116 of 2018, s 3 and Sch 1 item 25A, by inserting the note, effective 1 January 2020.
S 137-19(4) amended by No 76 of 2018, s 3 and Sch 3 item 61, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 137-19(4) amended by No 116 of 2018, s 3 and Sch 1 item 9, by substituting "*pre-1 July 2019 VSL debt, in relation to a loan amount (within the meaning of this section as in force at the time the debt was incurred)," for "*VET student loan debt in relation to a loan amount", effective 1 July 2019.
History
S 137-19 inserted by No 100 of 2016, s 3 and Sch 1 item 7, effective 1 January 2017. No 100 of 2016, s 3 and Sch 2 items 1-11 contain the following transitional provision:
Schedule 2 - Transitional provisions
1 Definitions
1
In this Schedule:
loan amount
has the same meaning as in the VET Student Loans Act 2016.
provider transition period
means the period:
(a)
beginning on 1 January 2017; and
(b)
ending on 30 June 2017 or a later date determined by the Minister under item 8.
Secretary
means the Secretary of the Department.
Table A provider
has the same meaning as in the Higher Education Support Act 2003.
Table B provider
has the same meaning as in the Higher Education Support Act 2003.
VET provider
has the same meaning as in the Higher Education Support Act 2003.
2 Bodies taken to be approved course providers on 1 January 2017
(1)
Each of the following bodies is taken to be approved by the Secretary, under Division 1 of Part 4 of the VET Student Loans Act 2016, asan approved course provider on 1 January 2017 if, immediately before 1 January 2017, the body is a VET provider:
(a)
a Table A provider;
(b)
a Table B provider;
(c)
a body established to provide vocational education or training under one of the following:
(i)
the Technical and Further Education Commission Act 1990 (NSW);
(ii)
the Education and Training Reform Act 2006 (Vic.);
(iii)
the TAFE Queensland Act 2013 (Qld);
(iv)
the Vocational Education and Training Act 1996 (WA);
(v)
the TAFE SA Act 2012 (SA);
(vi)
the Training and Workforce Development Act 2013 (Tas.);
(vii)
the Canberra Institute of Technology Act 1987 (ACT);
(d)
a training organisation owned by the Commonwealth, a State or a Territory.
(2)
A body is taken to be approved by the Secretary, under Division 1 of Part 4 of the VET Student Loans Act 2016, as an approved course provider on 1 January 2017 if:
(a)
before 1 January 2017:
(i)
the body applies to the Secretary; and
(ii)
the Secretary decides that the body is suitable for being an approved course provider during the provider transition period; and
(b)
immediately before 1 January 2017, the body is a VET provider.
(3)
For the purposes of subparagraph (2)(a)(i), the application must be in the form approved by the Secretary.
(4)
For the purposes of subparagraph (2)(a)(ii), the Secretary may decide that a body is suitable if the Secretary is satisfied that the body:
(a)
meets the requirements determined by the Minister under item 3; and
(b)
is not excluded because of circumstances determined by the Minister under item 4.
(5)
If a body applies to the Secretary under subparagraph (2)(a)(i), the Secretary must give the body written notice of the Secretary's decision as to whether the body is suitable.
3 Minister may determine suitability requirements
(1)
The Minister may, by legislative instrument, determine requirements for the purposes of ensuring that course providers to whom loan amounts are paid during the provider transition period are suitable.
(2)
The requirements may deal with the following in relation to a course provider:
(a)
financial performance;
(b)
management and governance;
(c)
experience in providing vocational education;
(d)
scope of courses;
(e)
fees and modes of delivery for courses;
(f)
student outcomes;
(g)
industry links.
(3)
Subitem (2) does not limit the requirements the Minister may determine.
4 Minister may determine circumstances in which body is excluded
(1)
The Minister may, by legislative instrument, determine circumstances in which a body is excluded from being an approved course provider during the provider transition period.
(2)
Without limiting subitem (1), the circumstances may relate to:
(a)
the past compliance of the body or its officers or agents with the Higher Education Support Act 2003, another law of the Commonwealth or a law of a State or Territory; or
(b)
action taken under the Higher Education Support Act 2003, another law of the Commonwealth or a law of a State or Territory in relation to the body or its officers or agents.
5 Period of approval
(1)
An approval as an approved course provider under subitem 2(1) is for a period of 7 years beginning on 1 January 2017.
(2)
An approval as an approved course provider under subitem 2(2) is for the provider transition period.
(3)
Section 33 of the VET Student Loans Act 2016 does not apply to an approval under subitem 2(2).
6 Conditions of approval
6
An approval as an approved course provider under item 2 is subject to the same conditions (if any) that the body's approval as a VET provider is subject to immediately before 1 January 2017.
7 Approval may be revoked or suspended
(1)
After the commencement of the VET Student Loans Act 2016, an approval as an approved course provider under item 2 may be revoked or suspended under that Act.
(2)
If, at any time during the provider transition period, a body approved under subitem 2(2) ceases to be a VET provider, the approval is revoked.
8 Minister may extend provider transition period
(1)
The Minister may, by legislative instrument, determine a date after 30 June 2017 as the end of the provider transition period.
(2)
The Minister must not make a legislative instrument under subitem (1) on or after 30 June 2017.
9 Approval under
VET Student Loans Act 2016
not to commence before 1 July 2017
(1)
The period of an approval as an approved course provider under Division 1 of Part 4 of the VET Student Loans Act 2016 must not begin before 1 July 2017.
(2)
To avoid doubt, subitem (1) does not apply to an approval that is taken to have been given under item 2.
10 Delegation by Secretary
(1)
The Secretary may, in writing, delegate his or her powers under this Schedule to an SES employee, or an acting SES employee, in the Department.
(2)
In exercising powers under the delegation, the delegate must comply with any directions of the Secretary.
11 Regulations about transitional matters
(1)
The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) in relation to:
(a)
the amendments made by Schedule 1 to this Act; or
(b)
the enactment of this Act or the VET Student Loans Act 2016.
(2)
Without limiting subitem (1), regulations made for the purposes of that subitem may do any of the following:
(a)
modify the operation of provisions of the VET Student Loans Act 2016;
(b)
modify the operation of provisions of any Act or instrument to the extent that it is included in the definition of
this Act
in the VET Student Loans Act 2016;
(c)
modify the operation of this Act.
(3)
Provisions modified by the regulations have effect as if they were so modified.
(4)
However, the regulations must not modify the operation of an Act, or continue to modify the operation of an Act, after 31 December 2017.
SECTION 137-20
137-20
HELP debt discharged by death
Upon the death of a person who owes a *HELP
debt to the Commonwealth, the debt is taken to have been paid.
Note:
HELP debts are not provable in bankruptcy: see subsection 82(3AB) of the Bankruptcy
Act 1966.
Division 140 - How are accumulated HELP debts worked out?
Subdivision 140-A - Outline of this Division
SECTION 140-1
Outline of this Division
140-1(1)
There are 2 stages to working out a person's *accumulated HELP debt for a financial year.
Stage 1 - Former accumulated HELP debt
140-1(2)
The *former accumulated HELP debt is worked out by adjusting the preceding financial year's *accumulated HELP debt to take account of:
(a)
changes in the Consumer Price Index; and
(b)
the *HELP debts that he or she incurs during the last 6 months of the preceding financial year; and
(c)
*voluntary repayments of the debt; and
(d)
*compulsory repayment amounts in respect of the debt.
(e)
(Repealed by No 55 of 2016)
(See Subdivision 140-B.)
History
S 140-1(2) amended by No 55 of 2016, s 3 and Sch 3 item 1, by substituting para (d) for para (d) and (e), effective 1 July 2017. For application and saving provision, see note under Div 157 heading. Para (d) and (e) formerly read:
(d)
*compulsory repayment amounts in respect of the debt; and
(e)
if compulsory repayment amounts are not required to be paid in respect of the debt - the *HECS-HELP benefit (if any).
S 140-1(2) amended by No 43 of 2008, s 3 and Sch 1 item 1, by inserting para (e), applicable in respect of the 2008-2009 and later income years.
Stage 2 - Accumulated HELP debt
140-1(3)
The person's *accumulated HELP debt is worked out from:
(a)
his or her *former accumulated HELP debt; and
(b)
the *(HELP debts that he or she incurs during the first 6 months of the financial year; and
(c)
*voluntary repayments of those debts; and
(d)
reductions of those debts under section 142-15 or 144-10.
(See Subdivision 140-C.)
Note:
Incurring that financial year's accumulated HELP debt discharges the previous accumulated HELP debt and HELP debts under this Part: see section 140-35.
History
S 140-1(3) amended by No 3 of 2023, s 3 and Sch 2 item 4, by inserting "or 144-10" in para (d), effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
S 140-1(3) amended by No 103 of 2019, s 3 and Sch 2 item 4, by inserting para (d), effective 1 January 2020.
Subdivision 140-B - Former accumulated HELP debts
SECTION 140-5
Working out a former accumulated HELP debt
140-5(1)
A person's
former accumulated HELP debt
, in relation to the person's *accumulated HELP debt for a financial year, is worked out by multiplying:
(a)
the amount worked out using the following method statement; by
(b)
the *HELP debt indexation factor for the person for 1 June in that financial year.
Method statement
Step 1.
Take the person's *accumulated HELP debt for the immediately preceding financial year. (This amount is taken to be zero if the person has no accumulated HELP debt for that financial year.)
Step 2.
Take the HELP debts (if any) that the person incurred during the last 6 months of the immediately preceding financial year. Group them according to whether the debts are in relation to:
(a) units undertaken with a higher education provider that formed part of one particular *course of study with that provider; or
(b) units undertaken with a higher education provider that formed part of one particular course of study with another higher education provider; or
(c) units that formed part of one particular *bridging course for overseas-trained professionals; or
(d) units access to which was provided by *Open Universities Australia; or
(e) *OS-HELP assistance, the entitlement to which relates to the person's enrolment in a *course of study with one particular higher education provider (see paragraph 118-1(1)(c)); or
(ea) *SA-HELP assistance for *student services and amenities fees imposed on the person by one particular higher education provider; or
(eb) *STARTUP-HELP assistance for an *accelerator program course provided by one particular higher education provider; or
(f) units undertaken with a *VET provider that formed part of one particular *VET course of study with that provider; or
(g) units undertaken with a VET provider that formed part of one particular VET course of study with another VET provider; or
(h) a *VET student loan in relation to one particular course of study.
Note:
There will be more than one group of debts under paragraph (a) if the person incurred debts in relation to more than one course of study with a provider. Similarly, there could be more than one group of debts under paragraph (b), (c), (e), (ea), (eb), (f), (g) or (h).
Step 2A.
Work out the total for each group of debts. If the total for a particular group is an amount consisting of a number of whole dollars and a number of cents, the total for that group is taken to be the number of whole dollars. If the total for a group is an amount of less than one dollar, the total for the group is taken to be zero.
Step 2B.
If there is more than one group of debts for the person, add together the totals for all of the groups.
Step 3.
Subtract the sum of the amounts by which the person's debts referred to above are reduced because of any *voluntary repayments that have been made during the period:
(a) starting on 1 June in the immediately preceding financial year; and
(b) ending immediately before the next 1 June.
Step 4.
Subtract the sum of all of the person's *compulsory repayment amounts that:
(a) were assessed during that period (excluding any assessed as a result of a *return given before that period); or
(b) were assessed after the end of that period as a result of a return given before the end of that period.
Step 4A.
(Repealed by No 55 of 2016)
Step 5.
Subtract the sum of the amounts by which any *compulsory repayment amount of the person is increased (whether as a result of an increase in the person's *taxable income of an *income year or otherwise) by an amendment of an assessment made during that period.
Step 6.
Add the sum of the amounts by which any *compulsory repayment amount of the person is reduced (whether as a result of a reduction in the person's *taxable income of an *income year or otherwise) by an amendment of an assessment made during that period.
Example:
Lorraine is studying part time for a Degree of Bachelor of Communications. On 1 June 2013, Lorraine had an accumulated HELP debt of $15,000. She incurred a HELP debt of $1,500 on 31 March 2013. She made a voluntary repayment of $525 on 1 May 2014. Lorraine lodged her 2012-13 income tax return and a compulsory repayment amount of $3,000 was assessed and notified on her income tax notice of assessment on 3 September 2013.
To work out Lorraine's former accumulated HELP debt before indexation on 1 June 2014:
Step 1: |
Take the previous accumulated HELP debt of $15,000 on 1 June 2013. |
Step 2: |
Add the HELP debt of $1,500 incurred on 31 March 2013. |
Step 3: |
Subtract the $525 voluntary repayment made on 1 May 2014. |
Step 4: |
Subtract the $3,000 compulsory repayment assessed on 3 September 2013. |
Step 4A: |
(Repealed by No 55 of 2016) |
Step 5 and 6: |
Do not apply because since 1 June 2013 Lorraine had no amendments to any assessment. |
|
Lorraine's former accumulated HELP debt before indexation on 1 June 2014 is: |
|
($15,000 + $1,500) − ($525 + $3000) = $12,975 |
|
If, for example, the indexation factor for 1 June 2014 were 1.030, then the former accumulated HELP debt would be: |
|
$12,975 × 1.030 = $13,364.25 |
History
S 140-5(1) amended by No 36 of 2023, s 3 and Sch 1 items 29 and 30, by inserting para (eb) in step 2 of the method statement and "(eb)," in the note in step 2 of the method statement, effective 29 June 2023.
S 140-5(1) amended by No 103 of 2019, s 3 and Sch 2 item 5, by inserting "for the person" in para (b), effective 1 January 2020 and applicable in relation to the 2019-2020 financial year and each later financial year.
S 140-5(1) amended by No 55 of 2016, s 3 and Sch 3 items 2 and 3, by repealing step 4A of the method statement and omitting "Step 4A: Does not apply because Lorraine does not satisfy the eligibility requirements for the HECS-HELP benefit." in the example, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. Step 4A of the method statement formerly read:
Step 4A.
In respect of that period, subtract the amount of *HECS-HELP benefit (if any) determined, in respect of the person, by the *Commissioner under section 157-20 for an *income year, if the person did not have any *compulsory repayment amounts for that year.
S 140-5(1) amended by No 100 of 2016, s 3 and Sch 1 items 8-10, by substituting "provider; or" for "provider." in para (g), inserting para (h) in step 2 of the method statement and substituting "(f), (g) or (h)" for "(f) or (g)" in the note in step 2 of the method statement, effective 1 January 2017. For transitional provision, see note under s 137-19.
S 140-5(1) amended by No 169 of 2015, s 3 and Sch 4 items 2-5, by substituting "2013" for "2011" (wherever occurring), omitting "(which includes a voluntary repayment bonus of $25)" after "repayment of $525", substituting "2014" for "2012" (wherever occurring) and "2012-13" for "2010-11" in the example, applicable in relation to a voluntary repayment made on or after 1 January 2017, regardless of when the debt to which the repayment relates was incurred.
S 140-5(1) amended by No 112 of 2013, s 3 and Sch 1 item 21, by substituting "a *course of study" for "an *undergraduate course of study" in para (e) of step 2, method statement, effective 30 June 2013. For application provisions see note under s 121-1.
S 140-5(1) amended by No 178 of 2011, s 3 and Sch 3 item 1, by substituting the example, applicable in relation to payments made under Division 151 of the Higher Education Support Act 2003 on or after 1 January 2012 to meet a person's debts to the Commonwealth under Chapter 4 of that Act. The example formerly read:
Example:
Lorraine is studying part-time for a Degree of Bachelor of Communications. On 1 June 2007 Lorraine had an accumulated HELP debt of $15,000. She incurred a HELP debt of $1,500 on 31 March 2007. She made a voluntary repayment of $550 (which includes a voluntary repayment bonus of $50) on 1 May 2008. Lorraine lodged her 2006-07 income tax return and a compulsory repayment amount of $3,000 was assessed and notified on her income tax notice of assessment on 3 September 2007.
To work out Lorraine's former accumulated HELP debt before indexation on 1 June 2008:
Step 1: |
Take the previous accumulated HELP debt of $15,000 on 1 June 2007. |
Step 2: |
Add the HELP debt of $1,500 incurred on 31 March 2007. |
Step 3: |
Subtract the $550 voluntary repayment made on 1 May 2008. |
Step 4: |
Subtract the $3,000 compulsory repayment assessed on 3 September 2007. |
Step 4A: |
Does not apply because Lorraine does not satisfy the eligibility requirements for the HECS-HELP benefit. |
Step 5 and 6: |
Do not apply because since 1 June 2007 Lorraine had no amendments to any assessment. |
|
Lorraine's former accumulated HELP debt before indexation on 1 June 2008 is: |
|
($15,000 + $1,500) − ($550 + $3000) = $12,950 |
|
If, for example, the indexation factor for 1 June 2008 were 1.050, then the former accumulated HELP debt would be: |
|
$12,950 × 1.050 = $13,597.50 |
S 140-5(1) amended by No 130 of 2011, s 3 and Sch 1 items 14 and 15, by inserting para (ea) in step 2 of the method statement and inserting "(ea)," after "(e)," in the note in step 2 of the method statement, effective 1 January 2012.
S 140-5(1) amended by No 43 of 2008, s 3 and Sch 1 items 2 and 3, by inserting step 4A of the method statement and inserting step 4A of the example, applicable in respect of the 2008-2009 and later income years.
S 140-5(1) amended by No 170 of 2007, s 3 and Sch 1 item 13, by substituting step 2 of the method statement, effective 1 January 2008. Step 2 of the method statement formerly read:
Step 2.
Take the HELP debts (if any) that the person incurred during the last 6 months of the immediately preceding financial year. Group them according to whether the debts are in relation to:
(a) units undertaken with a *higher education provider that formed part of one particular *course of study with that provider; or
(b) units undertaken with a higher education provider that formed part of one particular course of study with another provider; or
(c) units that formed part of one particular *bridging course for overseas-trained professionals; or
(d) units access to which was provided by *Open Universities Australia; or
(e) *OS-HELP assistance, the entitlement to which relates to the person's enrolment in an *undergraduate course of study with one particular higher education provider (see paragraph 118-1(1)(c)).
Note:
There will be more than one group of debts under paragraph (a) if the person incurred debts in relation to more than one course of study with a provider. Similarly, there could be more than one group of debts under paragraph (b), (c) or (e).
S 140-5(1) amended by No 121 of 2006, s 3 and Sch 4 items 1 and 2, by substituting steps 2, 2A and 2B for step 2 and substituting "above" for "in steps 1 and 2" in step 3 of the method statement, applicable to the calculation of HELP debts incurred on or after 1 January 2005. Step 2 formerly read:
Step 2 ... Add the sum of all of the *HELP debts (if any) that the person incurred during the last 6 months of the immediately preceding financial year.
140-5(2)
For the purposes of this section, an assessment, or an amendment of an assessment, is taken to have been made on the day specified in the notice of assessment, or notice of amended assessment, as the date of issue of that notice.
140-5(3)
(Repealed by No 55 of 2016)
History
S 140-5(3) repealed by No 55 of 2016, s 3 and Sch 3 item 4, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 140-5(3) formerly read:
140-5(3)
If a determination by the *Commissioner under section 157-20 is reviewed under Part 5-7:
(a)
the reference in step 4A of the method statement in subsection (1) to the determination includes a reference to the decision on review; and
(b)
to the extent that the decision on review affects any step in the method statement - the decision on review must be taken into account in working out a person's *former accumulated HELP debt under this section.
S 140-5(3) inserted by No 43 of 2008, s 3 and Sch 1 item 4, applicable in respect of the 2008-2009 and later income years.
SECTION 140-10
HELP debt indexation factor
140-10(1)
The
HELP debt indexation factor
for a person for 1 June in a financial year is the number (rounded to 3 decimal places):
(a)
if the *Secretary has determined, under section 142-10 or 144-5, that the indexation of the person's *accumulated HELP debt for the financial year is to be reduced - worked out using the formula in subsection (1A); and
(b)
in any other case - worked out as follows:
Method statement
Step 1.
Add:
(a) the *index number for the *quarter ending on 31 March in that financial year; and
(b) the index numbers for the 3 quarters that immediately preceded that quarter.
Step 2.
Add:
(a) the *index number for the *quarter ending on 31 March in the immediately preceding financial year; and
(b) the index numbers for the 3 quarters that immediately preceded that quarter.
Step 3.
The
HELP debt indexation factor
for 1 June in the financial year is the amount under step 1 divided by the amount under step 2.
History
S 140-10(1) amended by No 3 of 2023, s 3 and Sch 2 item 5, by inserting "or 144-5" in para (a), effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
S 140-10(1) amended by No 103 of 2019, s 3 and Sch 2 item 6, by substituting all the words before the method statement, effective 1 January 2020 and applicable in relation to the 2019-2020 financial year and each later financial year. Formerly read:
140-10(1)
The HELP debt indexation factor for 1 June in a financial year is the number (rounded to 3 decimal places) worked out as follows:
140-10(1A)
For the purposes of paragraph (1)(a), the formula to work out the *HELP debt indexation factor for the person is:
where:
A
means the *HELP debt indexation factor for 1 June in the financial year worked out using the method statement in subsection (1).
B
means the number of days in the applicable calendar year determined for the person by the *Secretary under subsection 142-10(2) or 144-5(2).
History
S 140-10(1A) amended by No 3 of 2023, s 3 and Sch 2 item 6, by inserting "or 144-5(2)" at the end of the definition of B, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
S 140-10(1A) inserted by No 103 of 2019, s 3 and Sch 2 item 7, effective 1 January 2020 and applicable in relation to the 2019-2020 financial year and each later financial year.
140-10(2)
For the purposes of rounding a *HELP debt indexation factor, the third decimal place is rounded up if, apart from the rounding:
(a)
the factor would have 4 or more decimal places; and
(b)
the fourth decimal place would be a number greater than 4.
SECTION 140-15
140-15
Index numbers
(Repealed by No 76 of 2018)
History
S 140-15 repealed by No 76 of 2018, s 3 and Sch 1 item 8, effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years. S 140-15 formerly read:
SECTION 140-15 Index numbers
140-15(1)
The
index number
for a *quarter is the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the *Australian Statistician in respect of that quarter.
140-15(2)
Subject to subsection (3), if, at any time before or after the commencement of this Act:
(a)
the *Australian Statistician has published or publishes an *index number in respect of a *quarter; and
(b)
that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;
disregard the publication of the later index for the purposes of this section.
140-15(3)
If, at any time before or after the commencement of this Act, the *Australian Statistician has changed or changes the reference base for the Consumer Price Index, then, in applying this section after the change took place or takes place, have regard only to *index numbers published in terms of the new reference base.
SECTION 140-20
140-20
Publishing HELP debt indexation factors
The *Commissioner must cause to be published before 1 June in each financial year the *HELP debt indexation factor worked out using the method statement in subsection 140-10(1) for that 1 June.
History
S 140-20 amended by No 103 of 2019, s 3 and Sch 2 item 8, by inserting "worked out using the method statement in subsection 140-10(1)", effective 1 January 2020.
Subdivision 140-C - Accumulated HELP debts
SECTION 140-25
Working out an accumulated HELP debt
140-25(1)
A person's
accumulated HELP debt
, for a financial year, is worked out as follows:
Former accumulated HELP debt |
+ |
HELP debts incurred |
− |
HELP debt repayments |
− |
Location-preferred HELP debtor reduction |
where:
former accumulated HELP debt
is the 's *former accumulated HELP debt in relation to that *accumulated HELP debt.
HELP debt repayments
is the sum of all of the *voluntary repayments (if any) paid, on or after 1 July in the financial year and before 1 June in that year, in reduction of the *HELP debts incurred in that year.
HELP debts incurred
means the amount worked out using the method statement in subsection (1A).
location-preferred HELP debtor reduction
means the amount by which the person's *accumulated HELP debt is to be reduced as a result of a determination made by the *Secretary in relation to the person under section 142-15 or 144-10:
(a)
on or after 1 June in the preceding financial year; and
(b)
before 1 June in the financial year.
History
Definition of "location-preferred HELP debtor reduction" inserted by No 3 of 2023, s 3 and Sch 2 item 8, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
very remote HELP debtor reduction
(Repealed by No 3 of 2023)
History
Definition of "very remote HELP debtor reduction" repealed by No 3 of 2023, s 3 and Sch 2 item 9, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading. The definition formerly read:
very remote HELP debtor reduction
means the amount by which the person's *accumulated HELP debt is to be reduced as a result of a determination made by the *Secretary in relation to the person under section 142-15:
(a)
on or after 1 June in the preceding financial year; and
(b)
before 1 June in the financial year.
Example:
Paula is studying part-time for a Degree of Bachelor of Science. On 1 June 2009, her former accumulated HELP debt was worked out using Subdivision 140-B to be $20,000. She incurred a HELP debt of $1,500 on 31 August 2008. No repayments have been made in the 12 months from 1 June 2008.
Paula's accumulated HELP debt on 1 June 2009 is worked out by taking her former accumulated HELP debt of $20,000 and adding the $1,500 HELP debt incurred on 31 August 2008. That is:
$20,000 + $1,500 = $21,500 |
History
S 140-25(1) amended by No 3 of 2023, s 3 and Sch 2 item 7, by substituting the formula, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading. The formula formerly read:
Former accumulated HELP debt |
+ |
HELP debts incurred |
− |
HELP debt repayments |
− |
Very remote HELP debtor reduction |
S 140-25(1) amended by No 103 of 2019, s 3 and Sch 2 items 9 and 10, by substituting the formula and inserting the definition of "very remote HELP debtor reduction", effective 1 January 2020. The formula formerly read:
Former accumulated
HELP debt |
+ |
HELP debts
incurred |
− |
HELP debt
repayments |
S 140-25(1) amended by No 121 of 2006, s 3 and Sch 4 item 3, by substituting the definition of "HELP debts incurred", applicable to the calculation of HELP debts incurred on or after 1 January 2005. The definition formerly read:
HELP debts incurred
is the sum of the amounts of all of the *HELP debts (if any) that the person incurred during the first 6 months of the financial year.
140-25(1A)
For the purposes of the definition of
HELP debts incurred
in subsection (1), use the following method statement:
Method statement
Step 1.
Take the HELP debts (if any) that the person incurred during the first 6 months of the financial year. Group them according to whether the debts are in relation to:
(a) units undertaken with a higher education provider that formed part of one particular *course of study with that provider; or
(b) units undertaken with a higher education provider that formed part of one particular course of study with another higher education provider; or
(c) units that formed part of one particular *bridging course for overseas-trained professionals; or
(d) units access to which was provided by *Open Universities Australia; or
(e) *OS-HELP assistance, the entitlement to which relates to the person's enrolment in a *course of study with one particular higher education provider (see paragraph 118-1(1)(c)); or
(ea) *SA-HELP assistance for *student services and amenities fees imposed on the person by one particular higher education provider; or
(eb) *STARTUP-HELP assistance for an *accelerator program course provided by one particular higher education provider; or
(f) units undertaken with a *VET provider that formed part of one particular *VET course of study with that provider; or
(g) units undertaken with a VET provider that formed part of one particular VET course of study with another VET provider; or
(h) a *VET student loan in relation to one particular course of study.
Note:
There will be more than one group of debts under paragraph (a) if the person incurred debts in relation to more than one course of study with a provider. Similarly, there could be more than one group of debts under paragraph (b), (c), (e), (ea), (eb), (f), (g) or (h).
Step 2.
Work out the total for each group of debts. If the total for a particular group is an amount consisting of a number of whole dollars and a number of cents, the total for that group is taken to be the number of whole dollars. If the total for a group is an amount of less than one dollar, the total for the group is taken to be zero.
Step 3.
If there is more than one group of debts for the person, add together the totals for all of the groups.
History
S 140-25(1A) amended by No 36 of 2023, s 3 and Sch 1 items 31 and 32, by inserting para (eb) in step 1 of the method statement and "(eb)," in the note in step 1 of the method statement , effective 29 June 2023.
S 140-25(1A) amended by No 100 of 2016, s 3 and Sch 1 items 11-13, by substituting "provider; or" for "provider." in para (g), inserting para (h) in step 1 of the method statement and substituting "(f), (g) or (h)" for "(f) or (g)" in the note in step 1 of the method statement, effective 1 January 2017. For transitional provision, see note under s 137-19.
S 140-25(1A) amended by No 112 of 2013, s 3 and Sch 1 item 22, by substituting "a *course of study" for "an *undergraduate course of study" in para (e) of step 1, method statement, effective 30 June 2013. For application provisions see note under s 121-1.
S 140-25(1A) amended by No 130 of 2011, s 3 and Sch 1 items 16 and 17, by inserting para (ea) in step 1 of the method statement and inserting "(ea)," after "(e)," in the note in step 1 of the method statement, effective 1 January 2012.
S 140-25(1A) amended by No 170 of 2007, s 3 and Sch 1 item 14, by substituting step 1 of the method statement, effective 1 January 2008. Step 1 of the method statement formerly read:
Step 1.
Take the HELP debts (if any) that the person incurred during the first 6 months of the financial year. Group them according to whether the debts are in relation to:
(a) units undertaken with a *higher education provider that formed part of one particular *course of study with that provider; or
(b) units undertaken with a higher education provider that formed part of one particular course of study with another provider; or
(c) units that formed part of one particular *bridging course for overseas-trained professionals; or
(d) units access to which was provided by *Open Universities Australia; or
(e) *OS-HELP assistance, the entitlement to which relates to the person's enrolment in an *undergraduate course of study with one particular higher education provider (see paragraph 118-1(1)(c)).
Note:
There will be more than one group of debts under paragraph (a) if the person incurred debts in relation to more than one course of study with a provider. Similarly, there could be more than one group of debts under paragraph (b), (c) or (e).
S 140-25(1A) inserted by No 121 of 2006, s 3 and Sch 4 item 4, applicable to the calculation of HELP debts incurred on or after 1 January 2005.
140-25(2)
The person incurs the *accumulated HELP debt on 1 June in the financial year.
140-25(3)
The first financial year for which a person can have an *accumulated HELP debt is the financial year starting on 1 July 2005.
SECTION 140-30
Rounding of amounts
140-30(1)
If,
apart from this section, a person's *accumulated HELP debt would be an amount
consisting of a number of whole dollars and a number of cents, disregard the
number of cents.
140-30(2)
If,
apart from this section, a person's *accumulated HELP debt would be an amount
of less than one dollar, the person's accumulated HELP debt is taken to be
zero.
SECTION 140-35
Accumulated HELP debt discharges earlier debts
140-35(1)
The "accumulated
HELP debt that a person incurs on 1 June in a financial year discharges, or
discharges the unpaid part of:
(a)
any *HELP
debt that the person incurred during the calendar year immediately preceding
that day; and
(b)
any accumulated
HELP debt that the person incurred on the immediately preceding 1 June.
140-35(2)
Nothing
in subsection (1) affects the application of Division 137, Subdivision 140-B or section 140-25.
SECTION 140-40
Accumulated HELP debt discharged by death
140-40(1)
Upon the death of a person who has an *accumulated HELP debt, the accumulated HELP debt is taken to be discharged.
140-40(2)
To avoid doubt, this section does not affect any *compulsory repayment amounts required to be paid in respect of the *accumulated HELP debt, whether or not those amounts were assessed before the person's death.
Note:
Accumulated HELP debts are not provable in bankruptcy: see subsection 82(3AB) of the Bankruptcy Act 1966.
Division 142 - Special measures for location-preferred HELP debtors - teachers
History
Div 142 heading amended by No 3 of 2023, s 3 and Sch 2 item 10, by substituting "
location-preferred HELP debtors - teachers
" for "
very remote HELP debtors
", effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
Div 142 inserted by No 103 of 2019, s 3 and Sch 2 item 11, effective 1 January 2020.
SECTION 142-1
Meaning of location-preferred HELP debtor (teacher)
142-1(1)
A person is a
location-preferred HELP debtor (teacher)
on a day if:
(a)
the person carries out work as a teacher on that day at a school located in an area that is classified as very remote Australia under the *ABS Remoteness Structure; and
(b)
the person has completed a *course of study in education; and
(c)
the person incurred a *HECS-HELP debt or a *FEE-HELP debt in relation to that course of study.
History
S 142-1(1) amended by No 3 of 2023, s 3 and Sch 2 item 12, by substituting "
location-preferred HELP debtor (teacher)
" for "
very remote HELP debtor
", effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
142-1(2)
For the purposes of paragraph (1)(a), a
school
is any of the following:
(a)
an approved child care service (within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999 that is a centre-based day care service;
(b)
a preschool;
(c)
a school providing primary or secondary education.
History
S 142-1(2) amended by No 93 of 2020, s 3 and Sch 5 item 1, by substituting para (a), effective 1 January 2020. Para (a) formerly read:
(a)
an early childhood education and care service that includes a preschool education program;
142-1(3)
For the purposes of this Division, the HELP Debtor Guidelines (Teachers) may set out:
(a)
circumstances in which a person is taken, or is taken not, to carry out work as a teacher on a day; or
(b)
circumstances in which a person is taken, or is taken not, to carry out such work at a school located in an area that is classified as very remote Australia under the *ABS Remoteness Structure; or
(c)
circumstances in which a person is taken, or is taken not, to be a *location-preferred HELP debtor (teacher) for particular periods.
History
S 142-1(3) amended by No 3 of 2023, s 3 and Sch 2 items 13 and 14, by substituting "HELP Debtor Guidelines (Teachers)" for "Very Remote HELP Debtor Guidelines" and substituting "*location-preferred HELP debtor (teacher)" for "*very remote HELP debtor" in para (c), effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
History
S 142-1 inserted by No 103 of 2019, s 3 and Sch 2 item 11, effective 1 January 2020.
SECTION 142-5
Meaning of course of study in education
142-5(1)
Subject to subsection (2),
a course of study in education
means a *course of study, completion of which would satisfy the minimum academic requirements for registration as a teacher by an authority of a State or Territory.
142-5(2)
The HELP Debtor Guidelines (Teachers) may specify *courses of study that are, or are not, *courses of study in education.
History
S 142-5(2) amended by No 3 of 2023, s 3 and Sch 2 item 15, by substituting "HELP Debtor Guidelines (Teachers)" for "Very Remote HELP Debtor Guidelines", effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
History
S 142-5 inserted by No 103 of 2019, s 3 and Sch 2 item 11, effective 1 January 2020.
SECTION 142-10
Reducing indexation of accumulated HELP debts
142-10(1)
The *Secretary must, on the application of a person under subsection (4), determine that the indexation of the person's *accumulated HELP debt for a financial year is to be reduced if:
(a)
on 1 June of the financial year in relation to which the application is made, the person has an *accumulated HELP debt; and
(b)
the Secretary is satisfied that the person:
(i)
was a *location-preferred HELP debtor (teacher) at any time during the calendar year (the
applicable calendar year
) ending on 31 December in the financial year; and
(ii)
has met such other requirements (if any) as are specified in the HELP Debtor Guidelines (Teachers) for the purposes of this subparagraph.
History
S 142-10(1) amended by No 3 of 2023, s 3 and Sch 2 items 16-18, by inserting "relation to" in para (a), substituting "*location-preferred HELP debtor (teacher)" for "*very remote HELP debtor" in para (b)(i) and "HELP Debtor Guidelines (Teachers)" for "Very Remote HELP Debtor Guidelines" in para (b)(ii), effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
142-10(2)
If the *Secretary determines that the indexation of the person's *accumulated HELP debt for a financial year is to be reduced, the Secretary must determine the number of days in the applicable calendar year in respect of which the person was a *location-preferred HELP debtor (teacher).
History
S 142-10(2) amended by No 3 of 2023, s 3 and Sch 2 item 19, by substituting "*location-preferred HELP debtor (teacher)" for "*very remote HELP debtor", effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
No 103 of 2019, s 3 and Sch 2 item 15(2) contains the following transitional provision:
15 Application of amendments
…
(2)
Despite subsection 142-10(2) of the Higher Education Support Act 2003, as inserted by this Schedule, a day that occurs before 14 February 2019 must not be counted for the purposes of that subsection.
…
142-10(3)
The *Secretary must, within the period specified by subsection (3A), give notice to the person of the Secretary's decision on that application. The notice must:
(a)
be in writing; and
(b)
if the Secretary determines that the indexation of the person's accumulated HELP debt for a financial year is to be reduced - state the number of days determined by the Secretary under subsection (2).
History
S 142-10(3) amended by No 3 of 2023, s 3 and Sch 2 items 20 and 21, by substituting "the period specified by subsection (3A)" for "28 days after the day the Secretary receives the application under subsection (4)" and repealing the note, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading. The note formerly read:
Note:
The Secretary is taken to have made a decision to reject the application if the Secretary does not notify the person of the decision within 28 days: see section 206-5.
142-10(3A)
For the purposes of subsection (3), the period is:
(a)
the period of 60 days after the day the *Secretary receives the application under subsection (4); or
(b)
any longer period (not exceeding 6 months) determined in writing by the Secretary in relation to the application.
Note:
The Secretary is taken to have made a decision to reject the application if the Secretary does not notify the person of the decision within the period specified by this subsection: see section 206-5.
History
S 142-10(3A) inserted by No 3 of 2023, s 3 and Sch 2 item 22, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
142-10(3B)
If the notice states a number of days by which indexation of the person's *accumulated HELP debt is to be reduced, the *Secretary must give a copy of the notice to the *Commissioner.
History
S 142-10(3B) inserted by No 3 of 2023, s 3 and Sch 2 item 22, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
142-10(4)
A person may apply to the *Secretary for a determination under subsection (1) that the indexation of the person's *accumulated HELP debt for a financial year be reduced. The application must:
(a)
be in writing; and
(b)
be in the form (if any) approved by the Secretary and accompanied by the information (if any) required by the Secretary; and
(c)
include the person's *tax file number; and
(d)
meet any requirements specified by the HELP Debtor Guidelines (Teachers) for the purposes of this paragraph.
History
S 142-10(4) amended by No 3 of 2023, s 3 and Sch 2 item 23, by substituting "HELP Debtor Guidelines (Teachers)" for "Very Remote HELP Debtor Guidelines" in para (d), effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
History
S 142-10 inserted by No 103 of 2019, s 3 and Sch 2 item 11, effective 1 January 2020.
SECTION 142-15
Reducing accumulated HELP debts
142-15(1)
The *Secretary must, on the application of a person under subsection (5), determine that the person's *accumulated HELP debt is to be reduced in relation to a *course of study in education by a specified amount if:
(a)
the Secretary is satisfied that the person:
(i)
has been a *location-preferred HELP debtor (teacher) for a period of 4 years, or for periods within a continuous 6 year period that total 4 years; and
(ii)
has met such other requirements (if any) as are specified in the HELP Debtor Guidelines (Teachers) for the purposes of this subparagraph; and
(b)
the Secretary has not previously determined under this section that the person's accumulated HELP debt is to be reduced in relation to a course of study in education.
History
S 142-15(1) amended by No 3 of 2023, s 3 and Sch 2 items 24 and 25, by substituting "*location-preferred HELP debtor (teacher)" for "*very remote HELP debtor" in para (a)(i) and "the HELP Debtor Guidelines (Teachers)" for "those Guidelines" in para (a)(ii), effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
142-15(2)
If the *Secretary determines that a person's *accumulated HELP debt is to be reduced, the amount by which that debt is reduced is the amount equal to the lesser of the following:
(a)
the sum of the amounts of *HECS-HELP debt and *FEE-HELP debt incurred by the person in respect of units of study:
(i)
with a total *EFTSL value of not more than 5.0 *EFTSL; and
(ii)
undertaken as part of the *course of study in education mentioned in subsection (1);
(b)
the amount of the person's accumulated HELP debt at the start of the period of 4 years, or at the start of the first period of the periods totalling 4 years, referred to in subparagraph (1)(a)(i).
142-15(3)
To avoid doubt, subsection (2) may have the effect of reducing a person's *accumulated HELP debt for a financial year to less than zero.
142-15(4)
The *Secretary must, within the period specified by subsection (4A), notify the person of the Secretary's decision on that application. The notice must:
(a)
be in writing; and
(b)
if the Secretary has determined that the person's *accumulated HELP debt is to be reduced - state the amount by which that debt is to be reduced.
History
S 142-15(4) amended by No 3 of 2023, s 3 and Sch 2 items 26 and 27, by substituting "the period specified by subsection (4A)" for "28 days after the day the Secretary receives an application under subsection (5)" and repealing the note. effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading. The note formerly read:
Note:
The Secretary is taken to have made a decision to reject the application if the Secretary does not notify the person of the decision within 28 days: see section 206-5.
142-15(4A)
For the purposes of subsection (4), the period is:
(a)
the period of 60 days after the day the *Secretary receives the application under subsection (5); or
(b)
any longer period (not exceeding 6 months) determined in writing by the Secretary in relation to the application.
Note:
The Secretary is taken to have made a decision to reject the application if the Secretary does not notify the person of the decision within the period specified by this subsection: see section 206-5.
History
S 142-15(4A) inserted by No 3 of 2023, s 3 and Sch 2 item 28, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
142-15(4B)
If the notice states an amount by which the person's *accumulated HELP debt is to be reduced, the *Secretary must give a copy of the notice to the *Commissioner.
History
S 142-15(4B) inserted by No 3 of 2023, s 3 and Sch 2 item 28, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
142-15(5)
A person may apply to the *Secretary for a determination under subsection (1) that the person's *accumulated HELP debt be reduced. The application must:
(a)
be in writing; and
(b)
be in the form (if any) approved by the Secretary and accompanied by the information (if any) required by the Secretary; and
(c)
include the person's *tax file number; and
(d)
meet any requirements specified by the HELP Debtor Guidelines (Teachers) for the purposes of this paragraph.
History
S 142-15(5) amended by No 3 of 2023, s 3 and Sch 2 item 29, by substituting "HELP Debtor Guidelines (Teachers)" for "Very Remote HELP Debtor Guidelines" in para (d), effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
History
S 142-15 inserted by No 103 of 2019, s 3 and Sch 2 item 11, effective 1 January 2020. No 103 of 2019, s 3 and Sch 2 items 15(3) and (4) contains the following transitional provision:
15 Application of amendments
…
(3)
Section 142-15 of the Higher Education Support Act 2003, as inserted by this Schedule, applies in relation to a course of study whether completed before or after 1 January 2020.
(4)
Despite subparagraph 142-15(1)(a)(i) of the Higher Education Support Act 2003, as inserted by this Schedule, the Secretary must not determine that a person was a very remote HELP debtor in respect of a period if any part of the period occurs before 1 January 2019.
…
SECTION 142-20
142-20
Refunding amounts
If:
(a)
the *Secretary has determined, for the purposes of section 142-15, that a person's *accumulated HELP debt is to be reduced by an amount; and
(b)
the amount exceeds the sum of:
(i)
the amount required to discharge the total debt that the person owed to the Commonwealth under this Chapter; and
(ii)
the total amount of the person's primary tax debts (within the meaning of Part IIB of the Taxation Administration Act 1953);
the Commonwealth must refund to the person an amount equal to that excess.
History
S 142-20 inserted by No 103 of 2019, s 3 and Sch 2 item 11, effective 1 January 2020.
Division 144 - Special measures for location-preferred HELP debtors - health practitioners
History
Div 144 inserted by No 3 of 2023, s 3 and Sch 2 item 30, effective 21 February 2023. No 3 of 2023, s 3 and Sch 2 items 39 and 40 contain the following application, saving and transitional provisions:
Part 2 - Application, saving and transitional provisions
39 Application of amendments
(1)
The amendments of sections 142-10 and 142-15 of the Higher Education Support Act 2003 made by this Schedule apply in relation to applications under those sections that are received by the Secretary on or after the commencement of this item.
(2)
Subsection 144-5(1) of the Higher Education Support Act 2003, as inserted by this Part, applies in relation to the 2021-2022 financial year and each later financial year.
(3)
Despite subsection 144-5(2) of the Higher Education Support Act 2003, as inserted by this Schedule, a day that occurs before 1 January 2022 must not be counted for the purposes of that subsection.
(4)
Section 144-10 of the Higher Education Support Act 2003, as inserted by this Schedule, applies in relation to a course of study whether completed before or after the commencement of this Schedule.
(5)
Despite paragraph 144-10(1)(a) of the Higher Education Support Act 2003, as inserted by this Schedule, the Secretary must not determine that a person was a location-preferred HELP debtor (health practitioner) in relation to a course of study for a period if any part of the period occurred before 1 January 2022.
40 Saving provisions
(1)
A person who was a very remote HELP debtor immediately before the commencement of this Schedule is taken, on and after that commencement, to be a location-preferred HELP debtor (teacher).
(2)
Very Remote HELP Debtor Guidelines made under subsection 238-10(1) of the Higher Education Support Act 2003 that were in force immediately before the commencement of this Schedule continue in force (and may be dealt with) as if they were HELP Debtor Guidelines (Teachers) made under that subsection as amended by this Schedule.
SECTION 144-1
Meaning of location-preferred HELP debtor (health practitioner)
144-1(1)
A person is a
location-preferred HELP debtor (health practitioner)
in relation to a *course of study if:
(a)
the person has completed the course of study; and
(b)
the course of study is covered by subsection (2); and
(c)
the person incurred a *HECS-HELP debt or a *FEE-HELP debt in relation to the course of study; and
(d)
the person holds the registration or accreditation as a kind of health practitioner for the course of study specified by the HELP Debtor Guidelines (Health Practitioners) (the
Guidelines
) for the purposes of this paragraph; and
(e)
the person carries out work as that kind of health practitioner in the circumstances (if any) specified by the Guidelines for the purposes of this paragraph; and
(f)
the work is carried out in an area specified by the Guidelines, by reference to the *ABS Remoteness Structure, as a rural area, a remote area or a very remote area for the purposes of this paragraph; and
(g)
the number of hours during which the person carries out work is not less than the minimum number of hours (if any) specified for a health practitioner of that kind by the Guidelines for the purposes of this paragraph; and
(h)
the person satisfies any other applicable requirements specified by the Guidelines for the purposes of this paragraph.
Eligible courses of study
144-1(2)
For the purposes of this Division, a *course of study is covered by this subsection if:
(a)
it is a *course of study in medicine specified by the Guidelines for the purposes of this paragraph; or
(b)
it is a course of study:
(i)
the completion of which would allow a person to be registered as a nurse practitioner within the meaning of the Health Insurance Act 1973; and
(ii)
that is specified by the Guidelines for the purposes of this subparagraph; or
(c)
it is a course of study otherwise specified by the Guidelines for the purposes of this paragraph.
HELP Debtor Guidelines (Health Practitioners)
144-1(3)
Without limiting subsection 238-10(1), the Guidelines may set out:
(a)
circumstances in which a person is taken, or is taken not, to carry out work as a *location-preferred HELP debtor (health practitioner) as a particular kind of health practitioner; or
(b)
circumstances in which a person is taken, or is taken not, to carry out such work in a rural area, a remote area or a very remote area; or
(c)
circumstances in which a person is taken, or is taken not, to be a location-preferred HELP debtor (health practitioner) in relation to a *course of study for particular periods.
History
S 144-1 inserted by No 3 of 2023, s 3 and Sch 2 item 30, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
SECTION 144-5
Reducing indexation of accumulated HELP debts
144-5(1)
The *Secretary must, on the application of a person under subsection (6), determine that the indexation of the person's *accumulated HELP debt for a *course of study is to be reduced in relation to a financial year if:
(a)
on 1 June of the financial year in relation to which the application is made, the person has an accumulated HELP debt for the course of study; and
(b)
the Secretary is satisfied that the person:
(i)
was a *location-preferred HELP debtor (health practitioner) in relation to the course of study at any time during the calendar year (the
applicable calendar year
) ending on 31 December in the financial year; and
(ii)
has met such other requirements (if any) as are specified in the HELP Debtor Guidelines (Health Practitioners) for the purposes of this subparagraph.
144-5(2)
If the *Secretary determines that the indexation of the person's *accumulated HELP debt for a *course of study is to be reduced in relation to a financial year, the Secretary must determine the number of days in the applicable calendar year in respect of which the person was a *location-preferred HELP debtor (health practitioner) for the course of study.
144-5(3)
The *Secretary must, within the period specified by subsection (4), give notice to the person of the Secretary's decision on that application. The notice must:
(a)
be in writing; and
(b)
if the Secretary determines that the indexation of the person's *accumulated HELP debt for the *course of study is to be reduced in relation to a financial year - state the number of days determined by the Secretary under subsection (2).
144-5(4)
For the purposes of subsection (3), the period is:
(a)
the period of 60 days after the day the *Secretary receives the application under subsection (6); or
(b)
any longer period (not exceeding 6 months) determined in writing by the Secretary in relation to the application.
Note:
The Secretary is taken to have made a decision to reject the application if the Secretary does not notify the person of the decision within the period specified by this subsection: see section 206-5.
144-5(5)
If the notice states a number of days by which indexation of the person's *accumulated HELP debt for the *course of study is to be reduced, the *Secretary must give a copy of the notice to the *Commissioner.
144-5(6)
A person may apply to the *Secretary for a determination under subsection (1) that the indexation of the person's *accumulated HELP debt for a *course of study be reduced in relation to a financial year. The application must:
(a)
be in writing; and
(b)
be in the form (if any) approved by the Secretary and accompanied by the information (if any) required by the Secretary; and
(c)
include the person's *tax file number; and
(d)
meet any requirements specified by the HELP Debtor Guidelines (Health Practitioners) for the purposes of this paragraph.
144-5(7)
The *Secretary may refuse to consider an application until the Secretary is satisfied that the application complies with subsection (6).
History
S 144-5 inserted by No 3 of 2023, s 3 and Sch 2 item 30, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
SECTION 144-10
Reducing accumulated HELP debts
144-10(1)
The *Secretary must, on the application of a person under subsection (7), determine that the person's *accumulated HELP debt for a *course of study is to be reduced by a specified amount if the Secretary is satisfied that the person:
(a)
has been a *location-preferred HELP debtor (health practitioner) in relation to the course of study for one or more periods that, in total, are not less than the minimum period specified for the course of study by the HELP Debtor Guidelines (Health Practitioners); and
(b)
has met such other requirements (if any) as are specified in those Guidelines for the purposes of this paragraph.
144-10(2)
If the *Secretary determines that a person's *accumulated HELP debt for a *course of study is to be reduced, the amount by which that debt is reduced must not exceed the lesser of the following:
(a)
the sum of the amounts of *HECS-HELP debt and *FEE-HELP debt incurred by the person in respect of units of study:
(i)
with a total *EFTSL value not exceeding the maximum amount for the course of study specified in the HELP Debtor Guidelines (Health Practitioners) for the purposes of this subparagraph; and
(ii)
undertaken as part of the course of study;
(b)
the amount of the person's accumulated HELP debt for the course of study on the day the person first becomes a *location-preferred HELP debtor (health practitioner) in relation to the course of study.
144-10(3)
To avoid doubt, this section may have the effect of reducing a person's *accumulated HELP debt for a financial year to less than zero.
144-10(4)
The *Secretary must, within the period specified by subsection (5), notify the person of the Secretary's decision on that application. The notice must:
(a)
be in writing; and
(b)
if the Secretary has determined that the person's *accumulated HELP debt for the *course of study is to be reduced - state the amount by which that debt is to be reduced.
144-10(5)
For the purposes of subsection (4), the period is:
(a)
the period of 60 days after the day the *Secretary receives the application under subsection (7); or
(b)
any longer period (not exceeding 6 months) determined in writing by the Secretary in relation to the application.
Note:
The Secretary is taken to have made a decision to reject the application if the Secretary does not notify the person of the decision within the period specified by this subsection: see section 206-5.
144-10(6)
If the notice states an amount by which the person's *accumulated HELP debt for the *course of study is to be reduced, the *Secretary must give a copy of the notice to the *Commissioner.
144-10(7)
A person may apply to the *Secretary for a determination under subsection (1) that the person's *accumulated HELP debt for a *course of study be reduced. The application must:
(a)
be in writing; and
(b)
be in the form (if any) approved by the Secretary and accompanied by the information (if any) required by the Secretary; and
(c)
include the person's *tax file number; and
(d)
meet any requirements specified by the HELP Debtor Guidelines (Health Practitioners) for the purposes of this paragraph.
144-10(8)
The *Secretary may refuse to consider an application until the Secretary is satisfied that the application complies with subsection (7).
History
S 144-10 inserted by No 3 of 2023, s 3 and Sch 2 item 30, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
SECTION 144-15
144-15
Refunding amounts
If:
(a)
the *Secretary has determined, for the purposes of section 144-10, that a person's *accumulated HELP debt for a *course of study is to be reduced by an amount; and
(b)
the amount exceeds the sum of:
(i)
the amount required to discharge the total debt that the person owed to the Commonwealth under this Chapter; and
(ii)
the total amount of the person's primary tax debts (within the meaning of Part IIB of the Taxation Administration Act 1953);
the Commonwealth must refund to the person an amount equal to that excess.
History
S 144-15 inserted by No 3 of 2023, s 3 and Sch 2 item 30, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
SECTION 144-20
Reviews of this Division
144-20(1)
The Minister must cause to be conducted independent reviews of the operation of this Division before:
(a)
1 July 2025; and
(b)
1 July 2028.
144-20(1A)
Each review must consider, and make recommendations to the Commonwealth Government about, the expansion of the policy implemented by this Division to other sectors of high skills need in rural, remote and very remote Australia, including the health, mental health and education sectors.
144-20(1B)
Each review should consult with rural and remote communities and their health, mental health and education service providers and specifically, the following must be consulted as part of each review:
(a)
the National Rural Health Commissioner;
(b)
the Regional Education Commissioner.
Report
144-20(2)
The Minister must cause to be prepared a report of each review under subsection (1) within 3 months of the commencement of the relevant review.
144-20(3)
The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the report.
Response to report
144-20(4)
The Minister must:
(a)
prepare a written statement in response to the report; and
(b)
cause a copy of the statement to be tabled in each House of the Parliament within 30 sitting days of that House after the copy of the report is tabled in that House.
History
S 144-20 inserted by No 3 of 2023, s 3 and Sch 2 item 30, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
PART 4-2 - DISCHARGE OF INDEBTEDNESS
Division 148 - Introduction
SECTION 148-1
148-1
What this Part is about
A person who owes a debt to the Commonwealth under this Chapter may make voluntary repayments.
The person is required to make repayments, of amounts based on his or her income, if that income is above a particular amount. The Commissioner of Taxation makes assessments of repayment amounts, which are collected in the same way as amounts of income tax.
History
S 148-1 amended by No 55 of 2016, s 3 and Sch 3 item 5, by omitting "Repayment amounts may be reduced by the HECS-HELP benefit. To receive the benefit, a person must satisfy eligibility requirements and apply for it. The Commissioner determines whether a person is eligible for the benefit, and if so, the amount of the benefit.", effective 1 July 2017. For application and saving provision, see note under Div 157 heading.
S 148-1 amended by No 169 of 2015, s 3 and Sch 4 item 6, by omitting "In some cases these may attract a 5% repayment bonus." after "make voluntary repayments.", applicable in relation to a voluntary repayment made on or after 1 January 2017, regardless of when the debt to which the repayment relates was incurred.
S 148-1 amended by No 178 of 2011, s 3 and Sch 3 item 2, by substituting "5%" for "10%" in the first para, applicable in relation to payments made under Division 151 of the Higher Education Support Act 2003 on or after 1 January 2012 to meet a person's debts to the Commonwealth under Chapter 4 of that Act.
S 148-1 amended by No 43 of 2008, s 3 and Sch 1 item 5, by substituting the second and third paragraphs for the second paragraph, applicable in respect of the 2008-2009 and later income years. The second paragraph formerly read:
The person is required to make repayments, of amounts based on his or her income, if that income is above a particular amount. The Commissioner of Taxation makes assessments of what amounts are to be repaid, and the amounts are collected in the same way as amounts of income tax.
SECTION 148-3
148-3
The Overseas Debtors Repayment Guidelines
Repayments by *foreign residents are also dealt with in the Overseas Debtors Repayment Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The Overseas Debtors Repayment Guidelines are made by the Minister under section 238-10.
History
S 148-3 inserted by No 154 of 2015, s 3 and Sch 1 item 1, applicable in relation to the 2016-17 income year and later income years.
SECTION 148-5
148-5
The HECS-HELP Benefit Guidelines
(Repealed by No 55 of 2016)
History
S 148-5 repealed by No 55 of 2016, s 3 and Sch 3 item 6, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 148-5 formerly read:
SECTION 148-5 The HECS-HELP Benefit Guidelines
148-5
The *HECS-HELP benefit is also dealt with in the HECS-HELP Benefit Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The HECS-HELP Benefit Guidelines are made by the Minister under section 238-10.
S 148-5 inserted by No 43 of 2008, s 3 and Sch 1 item 6, applicable in respect of the 2008-2009 and later income years.
Division 151 - How is indebtedness voluntarily discharged?
SECTION 151-1
Voluntary repayments in respect of debts
151-1(1)
A
person may at any time make a payment in respect of a debt that the person
owes to the Commonwealth under this Chapter.
151-1(2)
The
payment must be made to the *Commissioner.
SECTION 151-5
151-5
Voluntary repayment bonus relating to HELP debts
(Repealed by No 169 of 2015)
History
S 151-5 repealed by No 169 of 2015, s 3 and Sch 4 item 7, applicable in relation to a voluntary repayment made on or after 1 January 2017, regardless of when the debt to which the repayment relates was incurred. S 151-5 formerly read:
SECTION 151-5 Voluntary repayment bonus relating to HELP debts
151-5(1)
The effect that a payment under section 151-1 has on a *HELP debt or an *accumulated HELP debt that a person (the
debtor
) owes to the Commonwealth under this Chapter is the effect specified in subsection (2) or (3) of this section if the amount of the payment is:
(a)
$500 or more; or
(b)
sufficient to be taken under subsection (2) to pay off the total debt.
Total debt paid off
151-5(2)
The debtor is taken to pay off the total debt if the payment in respect of the debt is equal to, or exceeds, an amount worked out as follows:
Amount of the debt outstanding
1.05 |
Example:
The total of Andrew's HELP debts and accumulated HELP debt is $2,500. To pay off his debt to the Commonwealth he only needs to repay $2,380 ($2,500 divided by 1.05 is $2,380, rounding down to the nearest dollar).
History
S 151-5(2) substituted by No 178 of 2011, s 3 and Sch 3 item 3, applicable in relation to payments made under Division 151 of the Higher Education Support Act 2003 on or after 1 January 2012 to meet a person's debts to the Commonwealth under Chapter 4 of that Act. S 151-5(2) formerly read:
151-5(2)
The debtor is taken to pay off the total debt if the payment in respect of the debt is equal to, or exceeds, an amount worked out as follows:
Amount of the debt outstanding
1.1 |
Example:
The total of Andrew's HELP debts and accumulated HELP debt is $2,500. To pay off his debt to the Commonwealth he only needs to repay $2,272 ($2,500 divided by 1.1 is $2,272, rounding down to the nearest dollar).
Part of debt paid off
151-5(3)
If the debtor is not taken to pay off the total debt, the outstanding amount of the debt is to be reduced by an amount worked out as follows:
Amount of the payment × 1.05 |
Example:
The total of Helen's HELP debts and accumulated HELP debt is $4,500. She makes a voluntary repayment of $1,500. With a 5% bonus, the value of her repayment is $1575. The total amount that she owes to the Commonwealth is reduced to $2,925.
History
S 151-5(3) substituted by No 178 of 2011, s 3 and Sch 3 item 3, applicable in relation to payments made under Division 151 of the Higher Education Support Act 2003 on or after 1 January 2012 to meet a person's debts to the Commonwealth under Chapter 4 of that Act. S 151-5(3) formerly read:
151-5(3)
If the debtor is not taken to pay off the total debt, the outstanding amount of the debt is to be reduced by an amount worked out as follows:
Amount of the payment × 1.1 |
Example:
The total of Helen's HELP debts and accumulated HELP debt is $4,500. She makes a voluntary repayment of $1,500. With a 10% bonus, the value of her repayment is $1,650. The total amount that she owes to the Commonwealth is reduced to $2,850.
Rounding
151-5(4)
If an amount worked out using the formula in subsection (2) is an amount made up of dollars and cents, round the amount down to the nearest dollar.
History
S 151-5(4) substituted by No 38 of 2012, s 3 and Sch 1 item 11, applicable in relation to payments made under section 151-1 of the Higher Education Support Act 2003 on or after 1 January 2013. S 151-5(4) formerly read:
151-5(4)
If an amount worked out using the formula in subsection (2) or (3) is an amount made up of dollars and cents, round the amount down to the nearest dollar.
151-5(5)
If an amount worked out using the formula in subsection (3) is an amount made up of dollars and cents, round the amount up to the nearest dollar.
History
S 151-5(5) inserted by No 38 of 2012, s 3 and Sch 1 item 11, applicable in relation to payments made under section 151-1 of the Higher Education Support Act 2003 on or after 1 January 2013.
SECTION 151-10
Application of voluntary repayments
151-10(1)
Any
money a person pays under this Division to meet the person's debts to the
Commonwealth under this Chapter is to be applied in payment of those debts
as the person directs at the time of the payment.
151-10(2)
If
the person has not given any directions, or the directions given do not adequately
deal with the matter, any money available is to be applied as follows:
(a)
first, in discharge or reduction of any *accumulated
HELP debt of the person;
(b)
secondly,
in discharge or reduction of:
(i)
any *HELP debt of the person; or
(ii)
if there is more than one such debt,
those debts in the order in which they were incurred.
SECTION 151-15
151-15
Refunding of payments
If:
(a)
a
person pays an amount to the Commonwealth under this Division; and
(b)
the amount exceeds the sum of:
(i)
the amount required to discharge the total
debt that the person owed to the Commonwealth under this Chapter; and
(ii)
the total amount of the person's primary
tax debts (within the meaning of Part IIB of
the Taxation Administration Act 1953);
the Commonwealth must refund to the person an amount
equal to that excess.
Note:
Interest is payable if the Commonwealth is late in paying refunds: see
Part IIIA of the Taxation (Interest on Overpayments and Early Payments) Act
1983.
Division 154 - How is indebtedness compulsorily discharged?
Subdivision 154-A - Liability to repay amounts
SECTION 154-1
Liability to repay amounts
154-1(1)
If:
(a)
a person's *repayment income for an *income year exceeds the *minimum repayment income for the income year; and
(b)
on 1 June immediately preceding the making of an assessment in respect of the person's income of that income year, the person had an *accumulated HELP debt;
the person is liable to pay to the Commonwealth, in accordance with this Division, the amount worked out under section 154-20 in reduction of the person's *repayable debt.
History
S 154-1(1) amended by No 55 of 2016, s 3 and Sch 3 item 7, by substituting "If" for "Subject to section 154-3, if", effective 1 July 2017. For application and saving provision, see note under Div 157 heading.
S 154-1(1) amended by No 43 of 2008, s 3 and Sch 1 item 7, by substituting "Subject to section 154-3, if" for "If", applicable in respect of the 2008-2009 and later income years.
154-1(2)
A person is not liable under this section to pay an amount for an *income year if, under section 8 of the Medicare Levy Act 1986:
(a)
no *Medicare levy is payable by the person on the person's *taxable income for the income year; or
(b)
the amount of the Medicare levy payable by the person on the person's taxable income for the income year is reduced.
SECTION 154-3
154-3
Reduction of liability by HECS-HELP benefit
(Repealed by No 55 of 2016)
History
S 154-3 repealed by No 55 of 2016, s 3 and Sch 3 item 8, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 154-3 formerly read:
SECTION 154-3 Reduction of liability by HECS-HELP benefit
154-3
If the *Commissioner has determined, in respect of a person, an amount of *HECS-HELP benefit under section 157-20 for an income year, the amount that the person is liable to pay under section 154-1 for that year is reduced by the amount of the benefit.
Note 1:
The calculation of a person's compulsory repayment amount under section 154-1 remains unaffected. A person's accumulated HELP debt is reduced by compulsory repayment amounts under Division 140. The HECS-HELP benefit reduces a person's liability that arises under section 154-1, so that the amount that the person will actually pay (if any) will be less than the compulsory repayment amount calculated.
Note 2:
If a determination is reviewed, a reference to the determination includes a reference to the decision on review, see section 157-30.
S 154-3 inserted by No 43 of 2008, s 3 and Sch 1 item 8, applicable in respect of the 2008-2009 and later income years.
SECTION 154-5
Repayment income
154-5(1)
A person's
repayment income
for an *income year is an amount equal to the sum of:
(a)
the person's *taxable income for the income year, disregarding the person's assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997) for the income year; and
(b)
the person's total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for the income year; and
(c)
if the person:
(i)
is an employee (within the meaning of the Fringe Benefits Tax Assessment Act 1986); and
(ii)
has a reportable fringe benefits total (within the meaning of that Act) for the income year;
the reportable fringe benefits total for the income year; and
(d)
the person's *exempt foreign income for the income year; and
(e)
the person's reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for the income year.
History
S 154-5(1) amended by No 132 of 2017, s 3 and Sch 1 item 25, by inserting ", disregarding the person's assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997) for the income year" in para (a), effective 1 July 2018.
S 154-5(1) amended by No 27 of 2009, s 3 and Sch 3 items 36 and 37, by substituting para (b) and substituting paras (d) and (e) for para (d), applicable in relation to income years starting on or after 1 July 2009. Paras (b) and (d) formerly read:
(b)
if a person has a *rental property loss for the income year - the amount of that rental property loss; and
(d)
if the person has *exempt foreign income for the income year - the amount of that exempt foreign income.
154-5(2)
(Repealed by No 27 of 2009)
History
S 154-5(2) repealed by No 27 of 2009, s 3 and Sch 3 item 38, applicable in relation to income years starting on or after 1 July 2009. S 154-5(2) formerly read:
154-5(2)
The person's
rental property loss
is the amount (if any) by which the amount of the person's allowable deductions under the Income Tax Assessment Act 1997 in respect of rental property in Australia exceeds the person's gross rental property income.
154-5(3)
(Repealed by No 27 of 2009)
History
S 154-5(3) repealed by No 27 of 2009, s 3 and Sch 3 item 38, applicable in relation to income years starting on or after 1 July 2009. S 154-5(3) formerly read:
154-5(3)
For the purposes of subsection (2), disregard any rental property income that the person derives as a member of a partnership.
154-5(4)
The person's
exempt foreign income
is the total amount (if any) by which the person's income that is exempt from tax under section 23AF or 23AG of the Income Tax Assessment Act 1936 exceeds the total amount of losses and outgoings that the person incurs in deriving that exempt income.
154-5(5)
For the purposes of subsection (4), disregard any capital losses and outgoings.
SECTION 154-10
154-10
Minimum repayment income
The
minimum repayment income
for an *income year is:
(a)
for the 2019-20 income year - $45,880; or
(b)
for a later income year - that amount as indexed under section 154-25.
History
S 154-10 amended by No 76 of 2018, s 3 and Sch 1 item 1, by substituting para (a), effective 1 July 2019 and applicable in relation to the 2019-20 income year and later income years. Para (a) formerly read:
(a)
for the 2018-19 income year - $51,956; or
S 154-10 amended by No 55 of 2016, s 3 and Sch 1 item 1, by substituting para (a), applicable in relation to income years commencing on and after 1 July 2018. Para (a) formerly read:
(a)
for the 2005-06 income year - $36,184; or
SECTION 154-15
Repayable debt for an income year
154-15(1)
A person's
repayable debt
for an *income year is:
(a)
the person's *accumulated HELP debt referred to in paragraph 154-1(1)(b) in relation to that income year; or
(b)
if one or more amounts:
(i)
have been paid in reduction of that debt; or
(ii)
have been assessed under section 154-35 to be payable in respect of that debt;
the amount (if any) remaining after deducting from that debt the amount, or sum of the amounts, so paid or assessed to be payable.
154-15(2)
A reference in paragraph (1)(b) to an amount assessed to be payable is, if the amount has been increased or reduced by an amendment of the relevant assessment, a reference to the increased amount or the reduced amount.
Subdivision 154-AA - Liability of overseas debtors to repay amounts
History
Subdiv 154-AA inserted by No 154 of 2015, s 3 and Sch 1 item 2, applicable in relation to the 2016-17 income year and later income years.
SECTION 154-16
154-16
Liability of overseas debtors to repay amounts
If:
(a)
a person is a *foreign resident during an *income year; and
(b)
the person's *assessed worldwide income for the income year exceeds the *minimum repayment income for the income year; and
(c)
on 1 June immediately preceding the making of an assessment in respect of the person's income of that income year, the person had an *accumulated HELP debt;
the person is liable to pay to the Commonwealth, in accordance with this Division, a levy of the amount worked out under section 154-32.
Note:
An amount a person is liable to pay under this section is imposed as a levy under the Student Loans (Overseas Debtors Repayment Levy) Act 2015.
History
S 154-16 inserted by No 154 of 2015, s 3 and Sch 1 item 2, applicable in relation to the 2016-17 income year and later income years.
SECTION 154-17
Assessed worldwide income
154-17(1)
A person's
assessed worldwide income
for an *income year is an amount equal to the sum of:
(a)
the person's *repayment income for the income year; and
(b)
the person's foreign-sourced income for the income year, converted into Australian currency.
154-17(2)
The Overseas Debtors Repayment Guidelines may provide for how to work out a person's foreign-sourced income for an *income year, including how to convert it into Australian currency.
154-17(3)
Without limiting subsection (2), the Overseas Debtors Repayment Guidelines may provide for a person's foreign-sourced income for an income year to be worked out in relation to a period that does not correspond to that *income year.
History
S 154-17 inserted by No 154 of 2015, s 3 and Sch 1 item 2, applicable in relation to the 2016-17 income year and later income years.
SECTION 154-18
Notices to be given to the Commissioner
Notice relating to leaving Australia
154-18(1)
A person who:
(a)
has an *accumulated HELP debt or otherwise has a *HELP debt that has not yet been discharged; and
(b)
leaves Australia (other than in circumstances specified in the Overseas Debtors Repayment Guidelines) with the intention of remaining outside Australia for at least 183 days;
must, no later than 7 days after leaving Australia, give a notice to the *Commissioner in the *approved form.
Notice relating to absence from Australia
154-18(2)
A person who:
(a)
has an *accumulated HELP debt or otherwise has a *HELP debt that has not yet been discharged; and
(b)
has been outside Australia for at least 183 days (other than in circumstances specified in the Overseas Debtors Repayment Guidelines) in any 12 month period; and
(c)
was not required under subsection (1) to give a notice to the *Commissioner in connection with that absence from Australia;
must, no later than 7 days after the end of those 183 days, give a notice to the Commissioner in the *approved form.
[
CCH Note:
No 154 of 2015, s 3 and Sch 1 item 11 provides the following application provision:
11 Application of subsections 154-18(1) and (2)
(1)
Subsections 154-18(1) and (2) of the Higher Education Support Act 2003, as inserted by this Act, apply:
(a)
to persons who leave Australia after the commencement of this item; and
(b)
subject to subitem (2), to persons who, immediately before that commencement, were outside Australia.
(2)
If, immediately before the commencement of this item, a person was outside Australia, subsection 154-18(2) of the Higher Education Support Act 2003, as inserted by this Act, applies in relation to that absence from Australia (but not in relation to any later absence starting after that commencement) as if:
(a)
the 183 days referred to in paragraph 154-18(2)(b) of that Act as so inserted were days occurring after that commencement; and
(b)
that subsection as so inserted required the person to notify the Commissioner no later than 1 July 2017.
]
Notice relating to income (including foreign-sourced income)
154-18(3)
A person who:
(a)
is a *foreign resident; and
(b)
on 1 June immediately preceding an *income year, had an *accumulated HELP debt;
must (other than in circumstances specified in the Overseas Debtors Repayment Guidelines) give to the *Commissioner, in the *approved form, a notice relating to the person's income (including foreign-sourced income) for the income year. The notice must be given within the period specified in the form.
Note:
The Commissioner may defer the time for giving the return: see section 388-55 in Schedule 1 to the Taxation Administration Act 1953.
Content of notices under this section
154-18(4)
The Overseas Debtors Repayment Guidelines may provide for the content of notices under this section.
History
S 154-18 inserted by No 154 of 2015, s 3 and Sch 1 item 2, applicable in relation to the 2016-17 income year and later income years.
Subdivision 154-B - Amounts payable to the Commonwealth
SECTION 154-20
154-20
Amounts payable to the Commonwealth
The amount that a person is liable to pay under section 154-1, in respect of an *income year, is an amount equal to so much of the person's *repayable debt for the income year as does not exceed the percentage of the person's *repayment income that is applicable under the following table:
Applicable percentages
|
Item
|
If the person's repayment income is:
|
The percentage
applicable is:
|
1 |
More than the *minimum repayment income, but less than:
(a) for the 2019-20 *income year - $52,974; or
(b) for a later income year - that amount indexed under section 154-25. |
1% |
2 |
More than or equal to the amount under item 1, but less than:
(a) for the 2019-20 *income year - $56,152; or
(b) for a later income year - that amount indexed under section 154-25. |
2% |
3 |
More than or equal to the amount under item 2, but less than:
(a) for the 2019-20 *income year - $59,522; or
(b) for a later income year - that amount indexed under section 154-25. |
2.5% |
4 |
More than or equal to the amount under item 3, but less than:
(a) for the 2019-20 *income year - $63,093; or
(b) for a later income year - that amount indexed under section 154-25. |
3% |
5 |
More than or equal to the amount under item 4, but less than:
(a) for the 2019-20 *income year - $66,878; or
(b) for a later income year - that amount indexed under section 154-25. |
3.5% |
6 |
More than or equal to the amount under item 5, but less than:
(a) for the 2019-20 *income year - $70,891; or
(b) for a later income year - that amount indexed under section 154-25. |
4% |
7 |
More than or equal to the amount under item 6, but less than:
(a) for the 2019-20 *income year - $75,145; or
(b) for a later income year - that amount indexed under section 154-25. |
4.5% |
8 |
More than or equal to the amount under item 7, but less than:
(a) for the 2019-20 *income year - $79,653; or
(b) for a later income year - that amount indexed under section 154-25. |
5% |
9 |
More than or equal to the amount under item 8, but less than:
(a) for the 2019-20 *income year - $84,433; or
(b) for a later income year - that amount indexed under section 154-25. |
5.5% |
10 |
More than or equal to the amount under item 9, but less than:
(a) for the 2019-20 *income year - $89,499; or
(b) for a later income year - that amount indexed under section 154-25. |
6% |
11 |
More than or equal to the amount under item 10, but less than:
(a) for the 2019-20 *income year - $94,869; or
(b) for a later income year - that amount indexed under section 154-25. |
6.5% |
12 |
More than or equal to the amount under item 11, but less than:
(a) for the 2019-20 *income year - $100,561; or
(b) for a later income year - that amount indexed under section 154-25. |
7% |
13 |
More than or equal to the amount under item 12, but less than:
(a) for the 2019-20 *income year - $106,594; or
(b) for a later income year - that amount indexed under section 154-25. |
7.5% |
14 |
More than or equal to the amount under item 13, but less than:
(a) for the 2019-20 *income year - $112,990; or
(b) for a later income year - that amount indexed under section 154-25. |
8% |
15 |
More than or equal to the amount under item 14, but less than:
(a) for the 2019-20 *income year - $119,770; or
(b) for a later income year - that amount indexed under section 154-25. |
8.5% |
16 |
More than or equal to the amount under item 15, but less than:
(a) for the 2019-20 *income year - $126,956; or
(b) for a later income year - that amount indexed under section 154-25. |
9% |
17 |
More than or equal to the amount under item 16, but less than:
(a) for the 2019-20 *income year - $134,573; or
(b) for a later income year - that amount indexed under section 154-25. |
9.5% |
18 |
More than or equal to the amount under item 17. |
10% |
History
S 154-20 amended by No 76 of 2018, s 3 and Sch 1 item 2, by substituting the table, effective 1 July 2019 and applicable in relation to the 2019-20 income year and later income years. The table formerly read:
Applicable percentages
|
Item
|
If the person's repayment income is:
|
The percentage
applicable is:
|
1 |
More than the *minimum repayment income, but less than:
(a) for the 2018-19 *income year - $57,730; or
(b) for a later income year - that amount indexed under section 154-25. |
2% |
2 |
More than the amount under item 1, but less than:
(a) for the 2018-19 *income year - $64,307; or
(b) for a later income year - that amount indexed under section 154-25. |
4% |
3 |
More than the amount under item 2, but less than:
(a) for the 2018-19 *income year - $70,882; or
(b) for a later income year - that amount indexed under section 154-25. |
4.5% |
4 |
More than the amount under item 3, but less than:
(a) for the 2018-19 *income year - $74,608; or
(b) for a later income year - that amount indexed under section 154-25. |
5% |
5 |
More than the amount under item 4, but less than:
(a) for the 2018-19 *income year - $80,198; or
(b) for a later income year - that amount indexed under section 154-25. |
5.5% |
6 |
More than the amount under item 5, but less than:
(a) for the 2018-19 *income year - $86,856; or
(b) for a later income year - that amount indexed under section 154-25. |
6% |
7 |
More than the amount under item 6, but less than:
(a) for the 2018-19 *income year - $91,426; or
(b) for a later income year - that amount indexed under section 154-25. |
6.5% |
8 |
More than the amount under item 7, but less than:
(a) for the 2018-19 *income year - $100,614; or
(b) for a later income year - that amount indexed under section 154-25. |
7% |
9 |
More than the amount under item 8, but less than:
(a) for the 2018-19 *income year - $107,214; or
(b) for a later income year - that amount indexed under section 154-25. |
7.5% |
10 |
More than the amount under item 9. |
8% |
S 154-20 amended by No 55 of 2016, s 3 and Sch 1 item 2, by substituting the table, applicable in relation to income years commencing on and after 1 July 2018. The table formerly read:
Applicable percentages
|
Item
|
If the person's repayment income is:
|
The percentage
applicable is:
|
1 |
More than the *minimum repayment income, but less than:
(a) for the 2005-06 *income year - $40,307; or
(b) for a later income year - that amount indexed under section 154-25. |
4% |
2 |
More than the amount under item 1, but less than:
(a) for the 2005-06 *income year - $44,428; or
(b) for a later income year - that amount indexed under section 154-25. |
4.5% |
3 |
More than the amount under item 2, but less than:
(a) for the 2005-06 *income year - $46,763; or
(b) for a later income year - that amount indexed under section 154-25. |
5% |
4 |
More than the amount under item 3, but less than:
(a) for the 2005-06 *income year - $50,267; or
(b) for a later income year - that amount indexed under section 154-25. |
5.5% |
5 |
More than the amount under item 4, but less than:
(a) for the 2005-06 *income year - $54,440; or
(b) for a later income year - that amount indexed under section 154-25. |
6% |
6 |
More than the amount under item 5, but less than:
(a) for the 2005-06 *income year - $57,305; or
(b) for a later income year - that amount indexed under section 154-25. |
6.5% |
7 |
More than the amount under item 6, but less than:
(a) for the 2005-06 *income year - $63,063; or
(b) for a later income year - that amount indexed under section 154-25. |
7% |
8 |
More than the amount under item 7, but less than:
(a) for the 2005-06 *income year - $67,200; or
(b) for a later income year - that amount indexed under section 154-25. |
7.5% |
9 |
More than the amount under item 8. |
8% |
SECTION 154-25
Indexation
154-25(1)
The following amounts for the 2020-21 *income year, or a later income year:
(a)
the *minimum repayment income;
(b)
the amounts referred to in paragraph (a) of the second column of items 1 to 17 of the table in section 154-20;
are indexed by multiplying the corresponding amounts for the 2019-20 income year by the amount worked out using the formula:
The sum of the *index numbers for the *quarter ending on 31 December immediately before the income year and the 3 quarters immediately preceding that quarter |
The sum of the *index numbers for the *quarter ending on 31 December immediately before the 2019-20 income year and the 3 quarters immediately preceding that quarter |
History
S 154-25(1) substituted by No 76 of 2018, s 3 and Sch 1 item 9, effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years. No 76 of 2018, s 3 and Sch 1 item 18 contains the following transitional provision:
18 Transitional - indexation
18
Despite anything in repealed subsection 154-25(1) of the Higher Education Support Act 2003 (as that subsection applies to the 2019-20 income year), an amount referred to in paragraph (a) or (b) of that subsection is not to be indexed for the 2019-20 income year.
S 154-25(1) formerly read:
154-25(1)
The following amounts for the 2019-20 *income year, or a later income year:
(a)
the *minimum repayment income;
(b)
the amounts referred to in paragraph (a) of the second column of items 1 to 9 of the table in section 154-20;
are indexed by multiplying the corresponding amounts for the 2018-19 income year by the amount worked out using the formula:
AWE for that income year
AWE for the 2018-19 income year |
S 154-25(1) substituted by No 55 of 2016, s 3 and Sch 1 item 3, applicable in relation to income years commencing on and after 1 July 2018. S 154-25(1) formerly read:
154-25(1)
The following amounts for the 2006-07 *income year, or a later income year:
(a)
the *minimum repayment income;
(b)
the amounts referred to in paragraph (a) of the second column of items 1 to 8 of the table in section 154-20;
are indexed by multiplying the corresponding amounts for the 2005-06 income year by the amount worked out using the formula:
*AWE for that income year
AWE for the 2005-06 income year |
154-25(2)
(Repealed by No 76 of 2018)
History
S 154-25(2) repealed by No 76 of 2018, s 3 and Sch 1 item 10, effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years. S 154-25(2) formerly read:
154-25(2)
AWE
, for an *income year, is the number of dollars in the sum of:
(a)
the average weekly earnings for all employees (total earnings, seasonally adjusted) for the *reference period in the *quarter ending on 31 December immediately before the income year, as published by the*Australian Statistician; and
(b)
the average weekly earnings for all employees for the reference period in the quarter ending on 30 June that is immediately before the quarter referred to in paragraph (a), as published by the Australian Statistician.
S 154-25(2) amended by No 23 of 2013, s 3 and Sch 4 item 1, by subtituting "the quarter ending on 30 June that is immediately before the quarter referred to in paragraph (a)" for "each of the 3 quarters immediately before that quarter", applicable in relation to the indexation of the amounts referred to in subsection 154-25(1) of the Higher Education Support Act 2003 for the 2013-14 income year, or a later income year.
154-25(3)
(Repealed by No 76 of 2018)
History
S 154-25(3) repealed by No 76 of 2018, s 3 and Sch 1 item 10, effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years. S 154-25(3) formerly read:
154-25(3)
The
reference period
in a particular *quarter in a year is the period described by the *Australian Statistician as the pay period ending on or before a specified day that is the third Friday of the middle month of that quarter.
154-25(4)
If an amount worked out under this section is an amount made up of dollars and cents, round the amount down to the nearest dollar.
SECTION 154-30
154-30
Publishing indexed amounts
The Minister must cause to be published in the Gazette, before the start of the 2019-20 *income year or a later income year:
(a)
the *minimum repayment income; and
(b)
the amounts referred to in paragraph (b) of the second column of items 1 to 17 of the table in section 154-20;
for that income year.
History
S 154-30 amended by No 76 of 2018, s 3 and Sch 1 item 11, by substituting "to 17" for "to 9" in para (b), effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years.
S 154-30 amended by No 55 of 2016, s 3 and Sch 1 items 4 and 5, by substituting "2019-20" for "2006-07" and "items 1 to 9" for "items 1 to 8" in para (b), applicable in relation to income years commencing on and after 1 July 2018.
SECTION 154-32
154-32
Amounts payable to the Commonwealth by overseas debtors
The amount of levy that a person is liable to pay under section 154-16, in respect of an *income year, is an amount equal to the difference between:
(a)
the amount that the person would have been liable to pay under section 154-1 if:
(i)
the person had a *repayment income for the income year of an amount equal to the person's *assessed worldwide income for the income year; and
(ii)
subsection 154-1(2) did not apply to the person; and
(b)
the amount (if any) the person is liable to pay under section 154-1, in respect of the income year.
History
S 154-32 inserted by No 154 of 2015, s 3 and Sch 1 item 3, applicable in relation to the 2016-17 income year and later income years.
Subdivision 154-C - Assessments
SECTION 154-35
154-35
Commissioner may make assessments
The *Commissioner may, from any information in the Commissioner's possession, whether from a *return or otherwise, make an assessment of:
(a)
the person's *accumulated HELP debt on 1 June immediately before the making of the assessment; and
(b)
the amount required to be paid in respect of that debt under section 154-1 or 154-16.
History
S 154-35 amended by No 55 of 2016, s 3 and Sch 3 item 9, by repealing the note, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. The note formerly read:
Note:
The amount that the person will actually pay (if any) will be less than the amount mentioned in paragraph (b) if the person receives the HECS-HELP benefit.
S 154-35 amended by No 154 of 2015, s 3 and Sch 1 item 4, by inserting "or 154-16" in para (b), applicable in relation to the 2016-17 income year and later income years.
S 154-35 amended by No 43 of 2008, s 3 and Sch 1 item 9, by inserting the note at the end, applicable in respect of the 2008-2009 and later income years.
SECTION 154-40
154-40
Notification of notices of assessment of tax
If:
(a)
the *Commissioner is required to serve on a person a notice of assessment in respect of the person's income of an *income year under section 174 of the Income Tax Assessment Act 1936; and
(b)
the Commissioner has made, in respect of the person, an assessment under section 154-35 of this Act of the amounts referred to in that section; and
(c)
notice of the assessment under that section has not been served on the person;
notice of the assessment under that section may be served by specifying the amounts concerned in the notice referred to in paragraph (a).
History
S 154-40 substituted by No 55 of 2016, s 3 and Sch 3 item 10, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 154-40 formerly read:
SECTION 154-40 Notification of notices of assessment of tax
154-40(1)
If:
(a)
the *Commissioner is required to serve on a person a notice of assessment in respect of the person's income of an *income year under section 174 of the Income Tax Assessment Act 1936; and
(b)
the Commissioner has made, in respect of the person, an assessment under section 154-35 of this Act of the amounts referred to in that section; and
(c)
notice of the assessment under that section has not been served on the person;
notice of the assessment under that section may be served by specifying the amounts concerned in the notice referred to in paragraph (a).
154-40(2)
If the *Commissioner has determined, in respect of the person, an amount of *HECS-HELP benefit under section 157-20 for the *income year, the notice of assessment for that year may also refer to the amount of the benefit.
Note:
If a determination is reviewed, a reference to the determination includes a reference to the decision on review, see section 157-30.
History
S 154-40(2) inserted by No 43 of 2008, s 3 and Sch 1 items 10 and 11, applicable in respect of the 2008-2009 and later income years.
SECTION 154-45
Commissioner may defer making assessments
154-45(1)
A person may apply in the *approved form to the *Commissioner for deferral of the making of an assessment in respect of the person under section 154-35.
History
S 154-45(1) amended by No 6 of 2012, s 3 and Sch 2 item 2, by substituting "the *approved form" for "writing", effective 7 March 2012.
154-45(2)
The application must specify:
(a)
the *income year for which the deferral is being sought; and
(b)
the reasons for seeking the deferral.
154-45(3)
The *income year specified in the application must be:
(a)
the income year in which the person makes the application; or
(b)
the immediately preceding income year; or
(c)
the immediately succeeding income year.
154-45(4)
The *Commissioner may, on application by a person under this section, defer making an assessment in respect of the person under section 154-35 if the Commissioner is of the opinion that:
(a)
if the assessment were made, payment of the assessed amount wouldcause serious hardship to the person; or
(b)
there are other special reasons that make it fair and reasonable to defer making the assessment.
154-45(5)
The *Commissioner may defer making the assessment for any period that he or she thinks appropriate.
154-45(6)
The *Commissioner must, as soon as practicable after an application is made under this section:
(a)
consider the matter to which the application relates; and
(b)
notify the applicant of the Commissioner's decision on the application.
Note:
Deferrals of making assessments, or refusals of applications, are reviewable under Part 5-7.
SECTION 154-50
Commissioner may amend assessments
154-50(1)
A person may apply in the *approved form to the *Commissioner for an amendment of an assessment made in respect of the person under section 154-35 so that:
(a)
the amount payable under the assessment is reduced; or
(b)
no amount is payable under the assessment.
History
S 154-50(1) amended by No 6 of 2012, s 3 and Sch 2 item 2, by substituting "the *approved form" for "writing", effective 7 March 2012.
154-50(2)
The application:
(a)
must be made within 2 years after the day on which the *Commissioner gives notice of the assessment to the person; or
(b)
must specify the reasons justifying a later application.
History
S 154-50(2) amended by No 6 of 2012, s 3 and Sch 2 item 9, by substituting "within 2 years after the day on which the *Commissioner gives notice of the assessment to the person" for "no later than 2 years after the end of the *income year to which the assessment relates" in para (a), effective 7 March 2012.
154-50(3)
The *Commissioner may, on application by a person under this section, amend an assessment made in respect of the person under section 154-35 so that:
(a)
the amount payable under the assessment is reduced; or
(b)
no amount is payable under the assessment;
if the Commissioner is of the opinion that:
(c)
payment of the assessed amount has caused or would cause serious hardship to the person; or
(d)
there are other special reasons that make it fair and reasonable to make the amendment.
(4)
The *Commissioner must, as soon as practicable after an application is made under this section:
(a)
consider the matter to which the application relates; and
(b)
notify the applicant of the Commissioner's decision on the application.
Note:
Amendments of assessments, or refusals of applications, are reviewable under Part 5-7.
SECTION 154-55
Higher education providers etc. to provide information to Commissioner
154-55(1)
A higher education provider must give to the *Commissioner, if asked by the Commissioner to do so, any information:
(a)
that is in its possession relating to students who have applied for one or more of the following:
(i)
*HECS-HELP assistance or *FEE-HELP assistance for a unit of study;
(ii)
*OS-HELP assistance in relation to a period of 6 months;
(iii)
*SA-HELP assistance for a *student services and amenities fee for a period;
(iv)
*STARTUP-HELP assistance for an *accelerator program course; and
(b)
that the Commissioner reasonably requires for the purposes of this Chapter.
History
S 154-55(1) amended by No 36 of 2023, s 3 and Sch 1 items 33 and 34, by substituting "period;" for "period; and" in para (a)(iii) and inserting para (a)(iv), effective 29 June 2023.
S 154-55(1) amended by No 130 of 2011, s 3 and Sch 1 items 18 to 21, by inserting "one or more of the following" after "applied for" in para (a), omitting "or" after "unit of study;" in para (a)(i), omitting "and" after "6 months;" in para (a)(ii) and inserting para (a)(iii), effective 1 January 2012.
154-55(2)
*Open Universities Australia must give to the *Commissioner, if asked by the Commissioner to do so, any information:
(a)
that is in its possession relating to students who have applied for *FEE-HELP assistance for a unit of study; and
(b)
that the Commissioner reasonably requires for the purposes of this Chapter.
Subdivision 154-D - Application of tax legislation
SECTION 154-60
154-60
Returns, assessments, collection and recovery
Subject to this Part:
(a)
Part IV of the Income Tax Assessment Act 1936; and
(aa)
Division 5 of the Income Tax Assessment Act 1997; and
(b)
Part 4-15 in Schedule 1 to the Taxation Administration Act 1953;
apply, so far as they are capable of application, in relation to a *compulsory repayment amount of a person as if it were *income tax assessed to be payable by a taxpayer by an assessment made under Part IV of the Income Tax Assessment Act 1936.
History
S 154-60 amended by No 79 of 2010, s 3 and Sch 1 items 14 to 16, by omitting ", and Division 1 of Part VI," after "Part IV" in para (a), inserting para (aa) and repealing the note at the end, effective 1 July 2010. The note formerly read:
Note:
Part 4-15 in Schedule 1 to the Taxation Administration Act 1953 deals with collection and recovery of amounts on and after 1 July 2000, replacing some provisions in Division 1 of Part VI of the Income Tax Assessment Act 1936.
SECTION 154-65
Charges and civil penalties for failing to meet obligations
154-65(1)
Part 4-25 in Schedule 1 to the Taxation Administration
Act 1953 has effect as if:
(a)
any
*compulsory repayment amount of a person were *income tax payable by the person
in respect of the *income year in respect of which the assessment of that
debt was made; and
(b)
this
Chapter, and Part 5-5,
were *income tax laws.
154-65(2)
Subsection
(1) does not have the effect of making a person liable to a penalty for any
act or omission that happened before the commencement of this subsection.
SECTION 154-70
154-70
Pay as you go (PAYG) withholding
Part 2-5 (other
than section 12-55 and
Subdivisions 12-E, 12-F and 12-G) in Schedule 1 to the Taxation
Administration Act 1953 applies, so far as it is capable of application,
in relation to the collection of amounts of a *compulsory repayment amount
of a person as if the compulsory repayment amount were *income tax.
SECTION 154-75
154-75
Provisional tax
(Repealed by No 101 of 2006)
History
S 154-75 repealed by No 101 of 2006, s 3 and Sch 2 item 116, effective 14 Spetember 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive. S 154-75 formerly read:
SECTION 154-75 Provisional tax
154-75
Division 3 of Part VI of the Income Tax Assessment Act 1936 applies, so far as it is capable of application, in relation to the collection of a *compulsory repayment amount of a person as if the compulsory repayment amount were *income tax.
SECTION 154-80
154-80
Pay as you go (PAYG) instalments
Division 45 in
Schedule 1 to theTaxation
Administration Act 1953 applies, so far as it is capable of application,
in relation to the collection of a *compulsory repayment amount of a person
as if the compulsory repayment amount were *income tax.
SECTION 154-85
154-85
Reduction of compulsory repayment amount by HECS-HELP benefit
(Repealed by No 55 of 2016)
History
S 154-85 repealed by No 55 of 2016, s 3 and Sch 3 item 11, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 154-85 formerly read:
SECTION 154-85 Reduction of compulsory repayment amount by HECS-HELP benefit
154-85(1)
This section applies if the *Commissioner has determined, in respect of a person, an amount of *HECS-HELP benefit under section 157-20 for an *income year.
154-85(2)
For the purposes of this Subdivision, a *compulsory repayment amount of a person in respect of an *income year is to be reduced by the amount of *HECS-HELP benefit determined by the *Commissioner in respect of the person for that year.
Note:
If a determination is reviewed, a reference to the determination includes a reference to the decision on review, see section 157-30.
S 154-85 inserted by No 43 of 2008, s 3 and Sch 1 item 12, applicable in respect of the 2008-2009 and later income years.
SECTION 154-90
154-90
Failures to comply with section 154-18
Part III of the Taxation Administration Act 1953 applies in relation to a failure to comply with section 154-18 of this Act as if that section were a taxation law (within the meaning of section 2 of that Act).
History
S 154-90 inserted by No 154 of 2015, s 3 and Sch 1 item 5, applicable in relation to the 2016-17 income year and later income years.
Division 157 - HECS-HELP benefit
History
Div 157 repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. No 55 of 2016, s 3 and Sch 3 item 19 contains the following application and saving provision:
19 Application and saving provision
(1)
In this item:
Act
means the Higher Education Support Act 2003.
commencement
means the day this Schedule commences.
earlier income year
means an income year commencing before commencement.
(2)
The amendments do not apply in relation to HECS-HELP benefit for an earlier income year.
(3)
Without limiting subitem (2):
(a)
a person may, after commencement, make an application in respect of an earlier income year in accordance with Subdivision 157-A of Division 157 of the Act as in force immediately before commencement; and
(b)
the Commissioner must make a determination for any application in respect of an earlier year in accordance with Subdivision 157-C of Division 157 of the Act as in force immediately before commencement; and
(c)
section 140-5 of the Act, as in force immediately before commencement, continues to apply after commencement in relation to working out a former accumulated HELP debt of a person in respect of whom HECS-HELP benefit has been determined for an earlier income year; and
(d)
section 154-3 of the Act, as in force immediately before commencement, continues to apply after commencement in relation to working out the amount that a person in respect of whom a HECS-HELP benefit has been determined for an earlier income year is liable to pay under section 154-1 of the Act; and
(e)
a person may apply, after commencement, for review of a decision referred to in item 4A of the table in section 206-1 of the Act as in force immediately before commencement; and
(f)
such a decision may be reviewed and given effect in accordance with the Act as in force immediately before commencement; and
(g)
a provision of a taxation law (within the meaning of the Income Tax Assessment Act 1997) has the effect necessary to give effect to this item.
(4)
The HECS-HELP Benefit Guidelines in force immediately before commencement continue in force for the purposes of the application of the Higher Education Support Act 2003 in relation to HECS-HELP benefit for earlier income years. The Guidelines as continued under this subitem may be amended or repealed as if they were Guidelines made under section 238-10 of the Act.
Div 157 inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
Subdivision 157-A - Who is eligible for the HECS-HELP benefit?
History
Subdiv 157-A repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. For application and saving provision, see note under Div 157 heading.
Subdiv 157-A inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
SECTION 157-1
157-1
Application for the HECS-HELP benefit
(Repealed by No 55 of 2016)
History
S 157-1 repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 157-1 formerly read:
SECTION 157-1 Application for the HECS-HELP benefit
157-1
A person may apply to the *Commissioner in the *approved form for the *HECS-HELP benefit in respect of an *income year if:
(a)
the HECS-HELP Benefit Guidelines set out eligibility requirements for the HECS-HELP benefit; and
(b)
the person satisfies those eligibility requirements.
S 157-1 amended by No 6 of 2012, s 3 and Sch 2 item 3, by inserting "in the *approved form", effective 7 March 2012.
S 157-1 inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later incomeyears.
SECTION 157-5
157-5
Form of application
(Repealed by No 6 of 2012)
History
S 157-5 repealed by No 6 of 2012, s 3 and Sch 2 item 4, effective 7 March 2012. S 157-5 formerly read:
SECTION 157-5 Form of application
157-5
An application for the *HECS-HELP benefit must:
(a)
be in writing; and
(b)
be in the form required by the HECS-HELP Benefit Guidelines; and
(c)
provide all the information, and be accompanied by any documents, required by the HECS-HELP Benefit Guidelines.
S 157-5 inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
SECTION 157-10
157-10
Providing application to Commissioner
(Repealed by No 55 of 2016)
History
S 157-10 repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 157-10 formerly read:
SECTION 157-10 Providing application to Commissioner
157-10
An application must be made within the time specified in the HECS-HELP Benefit Guidelines.
S 157-10 amended by No 6 of 2012, s 3 and Sch 2 item 5, by substituting "within the time" for "in the manner, and within the time,", effective 7 March 2012.
S 157-10 inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
Subdivision 157-B - What is the amount of the HECS-HELP benefit?
History
Subdiv 157-B repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. For application and saving provision, see note under Div 157 heading.
Subdiv 157-B inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
SECTION 157-15
157-15
Amount of HECS-HELP benefit
(Repealed by No 55 of 2016)
History
S 157-15 repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 157-15 formerly read:
SECTION 157-15 Amount of HECS-HELP benefit
157-15(1)
The amount of the *HECS-HELP benefit for an *income year is the amount specified in, or worked out in accordance with, the HECS-HELP Benefit Guidelines.
157-15(2)
If an amount is required to be paid under section 154-1 for an *income year, the amount of the *HECS-HELP benefit for that year must not be more than the amount required to be paid for that year.
S 157-15 inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
Subdivision 157-C - Determination of applications
History
Subdiv 157-C repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. For application and saving provision, see note under Div 157 heading.
Subdiv 157-C inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
SECTION 157-20
157-20
Commissioner must determine application
(Repealed by No 55 of 2016)
History
S 157-20 repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 157-20 formerly read:
SECTION 157-20 Commissioner must determine application
157-20(1)
If a person applies for the *HECS-HELP benefit for an *income year, the *Commissioner must determine:
(a)
whether the person is eligible for the benefit for the year; and
(b)
if the person is eligible - the amount of the benefit, worked out in accordance with the HECS-HELP Benefit Guidelines.
Note:
A determination is reviewable under Part 5-7.
157-20(2)
A determination made under subsection (1) is not a legislative instrument.
S 157-20 inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
SECTION 157-25
157-25
Notifying applicant of determination
(Repealed by No 55 of 2016)
History
S 157-25 repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 157-25 formerly read:
SECTION 157-25 Notifying applicant of determination
157-25
The *Commissioner must notify the applicant, in writing, of his or her determination. The notice must be given within the time specified in the HECS-HELP Benefit Guidelines.
Note:
Notification may also be given to a person by referring to the amount of HECS-HELP benefit in the person's notice of assessment, see subsection 154-40(2).
S 157-25 inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
SECTION 157-30
157-30
Review of determinations
(Repealed by No 55 of 2016)
History
S 157-30 repealed by No 55 of 2016, s 3 and Sch 3 item 12, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. S 157-30 formerly read:
SECTION 157-30 Review of determinations
157-30
If a determination by the *Commissioner under section 157-20 is reviewed under Part 5-7, a reference in this Part (other than this Division) to the determination includes a reference to the decision on review.
S 157-30 inserted by No 43 of 2008, s 3 and Sch 1 item 13, applicable in respect of the 2008-2009 and later income years.
Chapter 5 - Administration
Division 159 - Introduction
SECTION 159-1
What this Chapter is about
This Chapter deals with the following administrative matters:
• payments made by the Commonwealth under this Act (see Part 5-1);
• tuition protection (see Part 5-1A);
• the Higher Education Tuition Protection Fund, the Higher Education Tuition Protection Director and the Higher Education Tuition Protection Fund Advisory Board (see Part 5-1B);
• administrative requirements that are imposed on higher education providers (see Part 5-2);
• electronic communication between higher education providers and students (see Part 5-3);
• management of information (see Part 5-4);
• tax file numbers of students (see Part 5-5);
• indexation of certain amounts (see Part 5-6.);
• reconsideration and administrative review of certain decisions (see Part 5-7);
• the application of the Regulatory Powers Act, including in relation to monitoring and investigation powers, civil penalties, infringement notices, enforceable undertakings and injunctions (see Part 5-8).
History
S 159-1 amended by No 101 of 2020, s 3 and Sch 2 item 1, by substituting "• the Higher Education Tuition Protection Fund, the Higher Education Tuition Protection Director and the Higher Education Tuition Protection Fund Advisory Board (see Part 5-1B);" for "• the HELP Tuition Protection Fund, the HELP Tuition Protection Director and the HELP Tuition Protection Fund Advisory Board (see Part 5-1B);", effective 1 January 2021.
S 159-1 amended by No 111 of 2019, s 3 and Sch 2 item 15, by inserting "• tuition protection (see Part5-1A);" and "• the HELP Tuition Protection Fund, the HELP Tuition Protection Director and the HELP Tuition Protection Fund Advisory Board (see Part 5-1B);", effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
S 159-1 amended by No 83 of 2017, s 3 and Sch 3 item 32, by substituting "• reconsideration and administrative review of certain decisions (see Part 5-7);" and "• the application of the Regulatory Powers Act, including in relation to monitoring and investigation powers, civil penalties, infringement notices, enforceable undertakings and injunctions (see Part 5-8)." for "• reconsideration and administrative review of certain decisions (see Part 5-7).", effective 17 August 2017.
S 159-1 amended by No 6 of 2012, s 3 and Sch 1 item 7, by substituting "management of information" for "protection of personal information gained in the administration of Chapters 3 and 4", applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
SECTION 159-5
159-5
The Administration Guidelines
Administrative matters are also dealt with
in the Administration Guidelines. The provisions of this Chapter may indicate
when a particular matter is or may be dealt with in these Guidelines.
Note:
The Administration Guidelines are made by the Minister under section 238-10.
PART 5-1 - PAYMENTS BY
THE COMMONWEALTH
Division 164 - Payments by the Commonwealth
SECTION 164-1
164-1
What this Part is about
This Part contains general provisions relating to how the Commonwealth makes payments under this Act.
History
S 164-1 amended by No 119 of 2007, s 3 and Sch 8 item 18, by omitting "to higher education providers and other bodies" after "under this Act", 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.
SECTION 164-5
Time and manner of payments
164-5(1)
Amounts
payable by the Commonwealth to a higher education provider or other body under
this Act are to be paid in such a way, including payment in instalments, as
the Minister determines.
164-5(2)
Payments
of amounts payable by the Commonwealth to a higher education provider or other
body under this Act are to be made at such times as the *Secretary determines.
SECTION 164-10
Advances
164-10(1)
The *Secretary may determine that an advance is to be made to a higher education provider or other body on account of an amount that is expected to become payable under a provision of this Act to the provider or other body.
164-10(1AA)
The *Secretary may vary or revoke a determination made under subsection (1).
History
S 164-10(1AA) inserted by No 83 of 2017, s 3 and Sch 3 item 33, effective 17 August 2017.
164-10(1A)
If the advance exceeds the amount that becomes payable, an amount equal to the excess may be:
(a)
deducted from any amount that is payable, or to be paid, to the provider or body under this Act; or
(b)
recovered by the Commonwealth from the provider or body as a debt due to the Commonwealth.
164-10(1B)
If the provider or other body uses the advance for a purpose other than that for which it was given, an amount equal to the advance may be:
(a)
deducted from any amount that is payable, or to be paid, to the provider or body under this Act; or
(b)
recovered by the Commonwealth from the provider or body as a debt due to the Commonwealth.
164-10(2)
The conditions that would be applicable to a payment of the amount on account of which the advance is made are applicable to the advance.
164-10(3)
This section does not affect the Minister's power to determine under section 33-40 that an advance is payable to a higher education provider.
SECTION 164-15
164-15
Overpayments of Commonwealth grants
An overpayment of an amount made to a higher education provider or other body under Part 2-2, 2-2A, 2-3 or 2-4 may, in whole or part, be:
(a)
deducted from any amount that is payable, or to be paid, to that provider or body under Part 2-2, 2-2A, 2-3 or 2-4; or
(b)
recovered by the Commonwealth from that provider or body as a debt due to the Commonwealth.
History
S 164-15 amended by No 74 of 2016, s 3 and Sch 1 item 9, by inserting "2-2A," (wherever occurring), effective 1 January 2017.
SECTION 164-17
164-17
Overpayments of Commonwealth scholarships to students
An overpayment of an amount paid, or purportedly paid, to a person by way of a *Commonwealth scholarship under section 46-13 may, in whole or part, be:
(a)
deducted from any amount that is payable, or to be paid, to that person under that section; or
(b)
recovered by the Commonwealth from that person as a debt due to the Commonwealth.
History
S 164-17 inserted by No 119 of 2007, s 3 and Sch 1 item 19, 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.
SECTION 164-18
Repayment of Commonwealth scholarships paid to students - breach of condition of
164-18(1)
This section applies if:
(a)
an amount is paid to a person by way of a *Commonwealth scholarship under section 46-13; and
(b)
the person breaches a condition of the Commonwealth scholarship.
164-18(2)
The amount may, in whole or part, be:
(a)
deducted from any amount that is payable, or to be paid, to that person under that section; or
(b)
recovered by the Commonwealth from that person as a debt due to the Commonwealth.
History
S 164-18 inserted by No 119 of 2007, s 3 and Sch 8 item 19, 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.
SECTION 164-20
164-20
Rounding of amounts
If an amount payable by the Commonwealth
under this Act is an amount made up of dollars and cents, round the amount
down to the nearest dollar.
SECTION 164-25
164-25
Appropriation
(Repealed by No 170 of 2007)
History
S 164-25 repealed by No 170 of 2007, s 3 and Sch 1 item 15, effective 1 January 2008. S 164-25 formerly read:
SECTION 164-25 Appropriation
164-25
Amounts payable by the Commonwealth under this Act are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.
PART 5-1A - TUITION PROTECTION
History
Pt 5-1A inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
Division 1 - Preliminary
History
Div 1 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-1
What this Part is about
Certain higher education providers who default in delivering a unit of study to a student receiving or entitled to FEE-HELP assistance or HECS-HELP assistance for the unit must give information about the default to the Higher Education Tuition Protection Director and to the student. If the student has made an up-front payment for the unit the provider may also have obligations under Part 5A of the Tertiary Education Quality and Standards Agency Act 2011 in relation to the default.
The provider must assist the student to find a replacement unit or replacement course, or the provider must re-credit the student's HELP balance (and offer the student a choice about this). If the provider fails to discharge this obligation, the Director must offer the student a suitable replacement course. If the Director is not satisfied that there is a suitable replacement course, or if the student elects re-crediting, the student's HELP balance is re-credited.
History
S 166-1 substituted by No 101 of 2020, s 3 and Sch 2 item 85, applicable in relation to provider defaults that occur on or after 1 January 2021. S 166-1 formerly read:
SECTION 166-1 What this Part is about
Certain higher education providers who default in delivering a unit of study to students receiving or entitled to FEE-HELP assistance or HECS-HELP assistance for the unit must give information about the default to the HELP Tuition Protection Director and to affected students.
The HELP Tuition Protection Director must assist affected students to find replacement courses. If the Director is not satisfied that there is a suitable replacement course for an affected student, or if the student elects re-crediting, the student's HELP balance is re-credited.
S 166-1 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-5
Application of this Part
166-5(1)
This Part applies to higher education providers other than:
(a)
*Table A providers; or
(b)
providers of a kind prescribed by the Higher Education Provider Guidelines.
166-5(2)
Despite subsection (1), the Minister may, by written notice, determine that this Part:
(a)
applies to a specified higher education provider; or
(b)
does not apply to a specified higher education provider;
if the Minister considers it appropriate that this Part applies, or does not apply, to the provider.
History
S 166-5(2) substituted by No 101 of 2020, s 3 and Sch 2 item 86, applicable in relation to provider defaults that occur on or after 1 January 2021. No 101 of 2020, s 3 and Sch 2 item 106 contains the following saving provision:
106 Saving provision
106
An instrument made under subsection 166-5(2) of the Higher Education Support Act 2003 that was in force immediately before the commencement of this Act continues in force (and may be dealt with) as if it had been made under that subsection as amended by this Act.
S 166-5(2) formerly read:
166-5(2)
Despite subsection (1), the Minister may, by written notice, determine that this Part:
(a)
applies to a specified higher education provider; or
(b)
does not apply to a specified higher education provider.
166-5(2A)
In deciding whether it is appropriate that this Part applies, or does not apply, to a specified higher education provider, the Minister must have regard to the following:
(a)
the risk of the provider *defaulting in relation to one or more students;
(b)
whether the provider is financially viable and likely to remain financially viable;
(c)
any non-compliance, or risk of future non-compliance, with this Act or legislative instruments made under this Act;
(d)
any advice given to the Minister by the *Secretary, *TEQSA or the *Higher Education Tuition Protection Director in relation to any of the matters referred to in paragraphs (a) to (c);
(e)
any other matter the Minister considers appropriate.
History
S 166-5(2A) inserted by No 101 of 2020, s 3 and Sch 2 item 86, applicable in relation to provider defaults that occur on or after 1 January 2021.
166-5(3)
A determination under subsection (2):
(a)
may be made either unconditionally or subject to conditions; and
(b)
may be expressed to be in force indefinitely or for a specified period.
166-5(4)
A determination made under subsection (2) is not a legislative instrument.
166-5(5)
Despite subsection (1), sections 166-27 and 166-30 apply to all higher education providers.
Note:
Section 166-27 deals with provider obligations to provide information about replacement courses and section 166-30 deals with obligations of providers who provide replacement courses.
166-5(5)
Despite subsection (1), sections 166-27, 166-30 and 166-32 apply to all higher education providers.
Note:
Section 166-27 deals with provider obligations to provide information about replacement courses, section 166-30 deals with obligations of providers who provide replacement courses and section 166-32 deals with the requirement of providers who provide replacement courses to keep up-to-date enrolment information.
History
S 166-5(5) (including the note) substituted by No 101 of 2020, s 3 and Sch 2 item 87, applicable in relation to provider defaults that occur on or after 1 January 2021. S 166-5(5) (including the note) formerly read:
166-5(5)
Despite subsection (1), sections 166-27 and 166-30 apply to all higher education providers.
Note:
Section 166-27 deals with provider obligations to provide information about replacement courses and section 166-30 deals with obligations of providers who provide replacement courses.
History
S 166-5 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-10
When a higher education provider defaults in relation to a student
166-10(1)
A higher education provider
defaults
in relation to a student if:
(a)
the provider fails to start to provide a unit of study to the student on the day on which the unit was scheduled to start; and
(b)
the student has not withdrawn before that day; and
(c)
the student was entitled, or would have been entitled, to *FEE-HELP assistance or *HECS-HELP assistance for the unit of study.
Note:
If the student has made any up-front payments in relation to the unit of study or any other affected units of the original course the provider may also have defaulted in relation to the student under the TEQSA Act: see section 62C of that Act.
History
S 166-10(1) amended by No 101 of 2020, s 3 and Sch 2 item 88, by inserting the note, applicable in relation to provider defaults that occur on or after 1 January 2021.
166-10(2)
A higher education provider
defaults
in relation to a student if:
(a)
the provider ceases to provide a unit of study to the student on a day after the unit starts but before it is completed; and
(b)
the student has not withdrawn before that day; and
(c)
the student was entitled, or would have been entitled, to *FEE-HELP assistance or *HECS-HELP assistance for the unit of study.
166-10(3)
A higher education provider
defaults
in relation to a student if circumstances prescribed by the Higher Education Provider Guidelines apply in relation to the provider and the student.
History
S 166-10 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
Division 2 - Obligations when a provider defaults in relation to a student
History
Div 2 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-15
Higher education providers must give notice of default to Higher Education Tuition Protection Director
Application of section
166-15(1)
This section applies if a higher education provider *defaults in relation to a student.
Notifying the Higher Education Tuition Protection Director of default
166-15(2)
The higher education provider must, within 24 hours of the *default occurring, give written notice to the *Higher Education Tuition Protection Director of the circumstances of the default.
History
S 166-15(2) amended by No 101 of 2020, s 3 and Sch 2 item 4, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
Notifying the Higher Education Tuition Protection Director of details of default
166-15(3)
The higher education provider must, within 3 business days of the *default occurring, give a written notice to the *Higher Education Tuition Protection Director specifying:
(a)
the following information in relation to each student in relation to whom the provider has defaulted:
(i)
the student's full name and contact details;
(ii)
the units of study and the *course of study that the student was enrolled in at the time of the default;
(iii)
the amount of the tuition fees for each unit of study that the student was enrolled in at the time of the default;
(iv)
details about the payment of those tuition fees; and
(aa)
advice as to:
(i)
whether the provider intends to discharge its obligations to the student under section 166-25; and
(ii)
(if appropriate) how the provider intends to discharge those obligations; and
(b)
any other matter prescribed by the Higher Education Provider Guidelines.
History
S 166-15(3) amended by No 101 of 2020, s 3 and Sch 2 item 89, by inserting para (aa), applicable in relation to provider defaults that occur on or after 1 January 2021.
S 166-15(3) amended by No 101 of 2020, s 3 and Sch 2 item 6, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
166-15(4)
If requested in writing by the *Higher Education Tuition Protection Director, the higher education provider must give to the Director a copy of a student's record of results for the *units of study that the student has completed.
History
S 166-15(4) amended by No 101 of 2020, s 3 and Sch 2 item 6, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
Notice requirements
166-15(5)
A notice given under subsection (2) or (3) must comply with any requirements prescribed by the Higher Education Provider Guidelines.
Civil penalty
166-15(6)
A higher education provider contravenes this subsection if the provider fails to comply with this section.
Civil penalty: 60 penalty units.
Offence
166-15(7)
A higher education provider commits an offence of strict liability if the provider contravenes this section.
Penalty: 60 penalty units.
History
S 166-15 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-20
Higher education providers must give notice of default to affected students
Application of section
166-20(1)
This section applies if a higher education provider *defaults in relation to a student.
Notifying students of default
166-20(2)
The higher education 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
166-20(3)
A notice given under subsection (2) must comply with any requirements prescribed by the Higher Education Provider Guidelines.
Civil penalty
166-20(4)
A higher education provider contravenes this subsection if the provider fails to comply with this section.
Civil penalty: 60 penalty units.
Offence
166-20(5)
A higher education provider commits an offence of strict liability if the provider contravenes this section.
Penalty: 60 penalty units.
History
S 166-20(5) amended by No 62 of 2020, s 3 and Sch 5 item 5, by substituting "A higher education provider" for "An approved course provider", effective 16 June 2020.
History
S 166-20 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-25
Obligation on providers in case of default
Application of section
166-25(1)
This section applies if a higher education provider *defaults in relation to a student.
Provider obligations
166-25(2)
The provider must discharge its obligations to the student in accordance with this section, within the period (the
provider obligation period
) of 14 days after the day the provider *defaulted in relation to the student.
166-25(3)
The provider discharges its obligations to the student if:
(a)
the provider arranges for the student to be offered a place in a suitable *replacement unit or suitable *replacement course and the student accepts the offer in writing; or
(b)
the provider:
(i)
re-credits the student's *HELP balance in accordance with subsection 97-42(1) or 104-42(1) (as the case requires); and
(ii)
pays an amount to the Commonwealth in accordance with subsection 36-24A(2) or 110-5(1) (as the case requires).
Suitable replacement units or suitable replacement courses
166-25(4)
The provider must identify whether:
(a)
there are one or more suitable *replacement units or suitable *replacement courses for the student; or
(b)
there is no suitable replacement unit or suitable replacement course for the student.
Matters relating to whether a course is a suitable replacement course
166-25(5)
In identifying whether there is a suitable *replacement course, the provider 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)
what credits the student may receive for the units of study of the original course successfully completed by the student;
(c)
whether the mode of delivery of the replacement course is the same as the mode of delivery of the original course;
(d)
the location where the replacement course will be primarily delivered;
(e)
whether the student:
(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;
(f)
any other matters prescribed by the Higher Education Provider Guidelines.
Matters relating to whether a unit is a suitable replacement unit
166-25(6)
In identifying whether there is a suitable *replacement unit, the provider must have regard to the following matters:
(a)
whether the student will receive credit under the student's *original course for the replacement unit;
(b)
whether the mode of delivery of the replacement unit is the same as the mode of delivery of the *affected unit;
(c)
the location where the replacement unit will be primarily delivered;
(d)
whether the student:
(i)
will incur additional fees that are unreasonable; and
(ii)
will be able to attend the replacement unit without unreasonable impacts on the student's prior commitments;
(e)
any other matters prescribed by the Higher Education Provider Guidelines.
Suitable replacement unit or suitable replacement course available
166-25(7)
If paragraph (4)(a) applies, the provider must give a written notice to the student that includes the following:
(a)
a statement that the student may decide to do one of the following:
(i)
enrol in a suitable *replacement unit or suitable *replacement course;
(ii)
enrol in another unit of study or course;
(iii)
elect to have an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit re-credited to the student's *HELP balance;
(b)
a description of each suitable replacement unit or suitable replacement course, including the qualification that the suitable replacement course leads to;
(c)
the contact details of the provider of each suitable replacement unit or suitable replacement course;
(d)
an explanation that, if *tuition fees or the student's *student contribution amount have been paid for the affected unit of the *original course, tuition fees or the student contribution amount would not be payable for a suitable replacement unit or a replacement unit of a suitable replacement course;
(e)
an explanation that if the student chooses to enrol in another unit of study or course, there is no obligation on the provider of the other unit or course to offer a replacement unit without charge to the student;
(f)
an explanation of the matters the provider must have regard to under subsections (5) and (6);
(g)
any other matters prescribed by the Higher Education Provider Guidelines.
Elections for up-front payments must be consistent
166-25(8)
Despite paragraph (7)(a), if an *up-front payment was made for any *affected units of the *original course, any elections made under that paragraph in relation to those units must be consistent with any elections made under paragraph 62F(7)(a) of the *TEQSA Act in relation to those units.
Example:
A student who is entitled to FEE-HELP assistance or HECS-HELP assistance for an affected unit of an original course also makes an up-front payment for the same affected unit. The student elects, under subparagraph (7)(a)(i), to enrol in a suitable replacement course. The student must elect to enrol in a suitable replacement course under subparagraph 62F(7)(a)(i) of the TEQSA Act in relation to the affected unit.
166-25(9)
The Higher Education Provider Guidelines may prescribe circumstances in which elections are considered to be consistent or inconsistent for the purposes of subsection (8).
History
S 166-25 substituted by No 101 of 2020, s 3 and Sch 2 item 90, applicable in relation to provider defaults that occur on or after 1 January 2021. S 166-25 formerly read:
SECTION 166-25 Student placement service
HELP Tuition Protection Director must decide
166-25(1)
If a higher education provider *defaults in relation to a student, the *HELP 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
166-25(2)
In deciding whether the *HELP Tuition Protection Director is satisfied that there is a suitable *replacement course, 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)
what course credits the student may receive for the units of study of the original course successfully completed by the student;
(c)
whether the mode of delivery of the replacement course is the same as the mode of delivery of the original course;
(d)
the location where the replacement course for a student will be primarily delivered;
(e)
whether a student who enrols in the 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;
(f)
any other matters prescribed by the Higher Education Provider Guidelines.
Suitable replacement course available
166-25(3)
If paragraph (1)(a) applies, the *HELP Tuition Protection Director must give a written notice to the student that includes the following:
(a)
a statement that the student may decide to do one of the following:
(i)
enrol in a suitable *replacement course;
(ii)
enrol in another course;
(iii)
elect to have an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit *re-credited to the student's *HELP balance;
(b)
a description of each suitable replacement course, including the qualification that the course leads to;
(c)
the contact details of the provider of each suitable replacement course;
(d)
an explanation that, if *tuition fees have been paid for the affected unit of the original course, tuition fees would not be payable for a *replacement unit of a suitable replacement course;
(e)
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 unit without charge to the student;
(f)
an explanation of the matters the Director must have regard to under subsection (2);
(g)
any other matters prescribed by the Higher Education Provider Guidelines.
No suitable replacement course available
166-25(4)
If paragraph (1)(b) applies, the *HELP 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 209-10, of the Director's decision within 28 days after the day on which the student is given the notice;
(c)
a statement that, to facilitate early re-crediting, the student may, at any time during the 28 days, give the Director notice in writing that the student will not seek reconsideration of the decision;
(d)
a statement that, if the student does not apply for reconsideration, an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit will be *re-credited to the student's *HELP balance.
S 166-25 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-26
Failure to discharge obligations
Civil penalty
166-26(1)
A higher education provider is liable to a civil penalty if:
(a)
the provider *defaults in relation to a student; and
(b)
the provider fails to discharge its obligations to the student in accordance with section 166-25.
Civil penalty: 60 penalty units.
Offence
166-26(2)
A higher education provider commits an offence of strict liability if:
(a)
the provider *defaults in relation to a student; and
(b)
the provider fails to discharge its obligations to the student in accordance with section 166-25.
Penalty: 60 penalty units.
166-26(3)
The maximum penalty for each day that an offence under subsection (2) continues is 10% of the maximum penalty that can be imposed in respect of that offence.
Note:
Subsection (2) is a continuing offence under section 4K of the Crimes Act 1914.
History
S 166-26 inserted by No 101 of 2020, s 3 and Sch 2 item 90, applicable in relation to provider defaults that occur on or after 1 January 2021.
SECTION 166-26A
Providers to notify of outcome of discharge of obligations
166-26A(1)
A higher education provider that *defaults in relation to a student must give a notice to the *Higher Education Tuition Protection Director within 7 days after the end of the *provider obligation period.
166-26A(2)
The notice must include the following:
(a)
whether the provider discharged its obligations to the student in accordance with section 166-25;
(b)
if the provider arranged a suitable *replacement unit or a suitable *replacement course:
(i)
details of the student; and
(ii)
details of the replacement unit or the replacement course; and
(iii)
evidence of the student's acceptance of an offer of a place in the replacement unit or replacement course;
(c)
if the provider re-credited the student's *HELP balance and paid an amount to the Commonwealth as referred to in paragraph 166-25(3)(b):
(i)
details of the student; and
(ii)
details of the amount re-credited and the amount paid.
166-26A(3)
The notice must comply with any requirements prescribed by the Higher Education Provider Guidelines.
Civil penalty
166-26A(4)
A higher education provider contravenes this subsection if the provider fails to comply with this section.
Civil penalty: 60 penalty units.
Offence
166-26A(5)
A higher education provider commits an offence of strict liability if the provider contravenes this section.
Penalty: 60 penalty units.
History
S 166-26A inserted by No 101 of 2020, s 3 and Sch 2 item 90, applicable in relation to provider defaults that occur on or after 1 January 2021.
SECTION 166-26B
Student placement service
Application of section
166-26B(1)
This section applies if the *Higher Education Tuition Protection Director determines that:
(a)
a higher education provider has *defaulted in relation to a student; and
(b)
either:
(i)
the provider has failed to discharge its obligations under section 166-25 to the student by the end of the *provider obligation period; or
(ii)
the provider is unlikely to be able to discharge its obligations under section 166-25 to the student by the end of the provider obligation period.
Higher Education Tuition Protection Director must decide
166-26B(2)
The *Higher Education 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 *
166-26B(3)
In deciding whether the *Higher Education Tuition Protection Director is satisfied that there is a suitable *replacement course, 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)
what credits the student may receive for the units of study of the original course successfully completed by the student;
(c)
whether the mode of delivery of the replacement course is the same as the mode of delivery of the original course;
(d)
the location where the replacement course will be primarily delivered;
(e)
whether the student:
(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;
(f)
any other matters prescribed by the Higher Education Provider Guidelines.
Suitable replacement course available
166-26B(4)
If paragraph (2)(a) applies, the *Higher Education Tuition Protection Director must give a written notice to the student that includes the following:
(a)
a statement that the student may decide to do one of the following:
(i)
enrol in a suitable *replacement course;
(ii)
enrol in another course;
(iii)
elect to have an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit re-credited to the student's *HELP balance;
(b)
a description of each suitable replacement course, including the qualification that the suitable replacement course leads to;
(c)
the contact details of the provider of each suitable replacement course;
(d)
an explanation that, if *tuition fees or the student's *student contribution amount have been paid for the affected unit of the original course, tuition fees or the student contribution amount would not be payable for a *replacement unit of a suitable replacement course;
(e)
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 unit without charge to the student;
(f)
an explanation of the matters the Director must have regard to under subsection (3);
(g)
any other matters prescribed by the Higher Education Provider Guidelines.
Accepting an offer of a suitable replacement course
166-26B(5)
If the *Higher Education Tuition Protection Director arranges for the student to be offered a place in a *replacement course, the student may accept the offer.
166-26B(6)
An acceptance must:
(a)
be in writing; and
(b)
be given to the provider of the suitable replacement course within the period specified in subsection (7).
166-26B(7)
For the purposes of subsection (6), the period is:
(a)
the period of 30 days after the day the *Higher Education Tuition Protection Director gives notice under subsection (4); or
(b)
if the Director determines that exceptional circumstances apply:
(i)
any shorter period determined in writing by the Director; or
(ii)
any longer period (not exceeding 12 months) determined in writing by the Director, and agreed to by the student.
No suitable replacement course available
166-26B(8)
If paragraph (2)(b) applies, the *Higher Education 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 (3);
(b)
an explanation of the student's right to request reconsideration, under section 209-10, of the Director's decision within 28 days after the day on which the student is given the notice;
(c)
a statement that, to facilitate early re-crediting, the student may, at any time during the 28 days, give the Director notice in writing that the student will not seek reconsideration of the decision;
(d)
a statement that, if the student does not apply for reconsideration, an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit will be re-credited to the student's *HELP balance.
Elections for up-front payments must be consistent
166-26B(9)
Despite paragraph (4)(a), if an *up-front payment was made for any *affected units of the *original course, any elections made under that paragraph in relation to those units must be consistent with any elections made under paragraph 62J(4)(a) of the *TEQSA Act in relation to those units.
Example:
A student who is entitled to FEE-HELP assistance or HECS-HELP assistance for an affected unit of an original course also makes an up-front payment for the same affected unit. The student elects, under subparagraph (4)(a)(iii), to have an amount re-credited to the student's HELP balance. The student must elect to receive a refund of the up-front payment under subparagraph 62J(4)(a)(iii) of the TEQSA Act in relation to the affected unit.
166-26B(10)
The Higher Education Provider Guidelines may prescribe circumstances in which elections are considered to be consistent or inconsistent for the purposes of subsection (9).
History
S 166-26B inserted by No 101 of 2020, s 3 and Sch 2 item 90, applicable in relation to provider defaults that occur on or after 1 January 2021.
SECTION 166-27
Obligations of providers to provide information about replacement courses
166-27(1)
The *Higher Education Tuition Protection Director may, by notice in writing, require a higher education provider to provide such information that the Director reasonably requires to enable the Director to make a decision under subsection 166-26B(2) regarding suitable *replacement courses for a student in relation to whom a provider has *defaulted.
History
S 166-27(1) amended by No 101 of 2020, s 3 and Sch 2 item 91, by substituting "subsection 166-26B(2)" for "subsection 166-25(1)", applicable in relation to provider defaults that occur on or after 1 January 2021.
S 166-27(1) amended by No 101 of 2020, s 3 and Sch 2 item 7, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
166-27(2)
The information must be provided:
(a)
in a form (if any) approved by the *Higher Education Tuition Protection Director for the information; and
(b)
in accordance with such other requirements as the Director makes.
History
S 166-27(2) amended by No 101 of 2020, s 3 and Sch 2 item 8, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director" in para (a), effective 1 January 2021.
Civil penalty
166-27(3)
A higher education 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
166-27(4)
A higher education 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.
History
S 166-27 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-30
Obligations of replacement providers
166-30(1)
This section applies if a student accepts an offer of a place in a *replacement unit or *replacement course.
History
S 166-30(1) amended by No 101 of 2020, s 3 and Sch 2 item 92, by inserting "*replacement unit or", applicable in relation to provider defaults that occur on or after 1 January 2021.
166-30(2)
The higher education provider who provides the *replacement unit or *replacement course must give written notice of the acceptance to the *Higher Education Tuition Protection Director within 14 days of the acceptance.
History
S 166-30(2) amended by No 101 of 2020, s 3 and Sch 2 item 93, by inserting "*replacement unit or", applicable in relation to provider defaults that occur on or after 1 January 2021.
S 166-30(2) amended by No 101 of 2020, s 3 and Sch 2 item 9, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
166-30(3)
The higher education provider who provides the *replacement unit or *replacement course must ensure that the student:
(a)
for a replacement course - is granted credits for units of study of the *original course successfully completed by the student; and
(b)
if the student has been charged a *student contribution amount or a *tuition fee for an *affected unit - is not charged a student contribution amount or a tuition fee for the replacement unit or the replacement unit of the replacement course; and
(c)
is enrolled in the replacement unit or replacement course as soon as practicable.
History
S 166-30(3) substituted by No 101 of 2020, s 3 and Sch 2 item 94, applicable in relation to provider defaults that occur on or after 1 January 2021. S 166-30(3) formerly read:
166-30(3)
The higher education provider who provides the *replacement course must ensure that the student:
(a)
is granted course credits for units of study of the *original course successfully completed by the student; or
(b)
if the student has been charged a *student contribution amount or a *tuition fee for an *affected unit - is not charged a student contribution amount or a tuition fee for a *replacement unit of the replacement course; and
(c)
is enrolled in the replacement course as soon as practicable.
Civil penalty
166-30(4)
A higher education provider contravenes this subsection if the provider fails to comply with this section.
Civil penalty: 60 penalty units.
Offence
166-30(5)
A higher education provider commits an offence of strict liability if the provider contravenes this section.
Penalty: 60 penalty units.
History
S 166-30 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-32
Obligations of replacement providers regarding enrolment information
166-32(1)
A higher education provider who provides a *replacement unit or a *replacement course to a student must keep up to date records of the following in relation to the student:
(a)
the student's full name and contact details;
(b)
the name of the replacement unit or replacement course (and *units of study) that the student is currently enrolled in;
(c)
any *student contribution amounts or *tuition fees charged to the student for the replacement unit or for any units of study of the replacement course;
(d)
details of the replacement unit or units of study of the replacement course successfully completed by the student;
(e)
details of the credits granted to the student for the replacement unit or for units of study of the *original course successfully completed by the student.
History
S 166-32(1) substituted by No 101 of 2020, s 3 and Sch 2 item 95, applicable in relation to provider defaults that occur on or after 1 January 2021. S 166-32(1) formerly read:
166-32(1)
A higher education provider who provides a *replacement course to a student must keep up to date records of the following in relation to the student:
(a)
the student's full name and contact details;
(b)
the name of the replacement course and the *units of study the student is currently enrolled in;
(c)
any *student contribution amounts or *tuition fees charged to the student for any units of the replacement course;
(d)
details of the units of study successfully completed by the student;
(e)
details of the course credits for units of study of the *original course successfully completed by the student granted to the student.
166-32(2)
A higher education provider contravenes this subsection if the provider fails to comply with this section.
Civil penalty: 60 penalty units.
166-32(3)
A higher education provider commits an offence of strict liability if the provider contravenes this section.
Penalty: 60 penalty units.
History
S 166-32 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-35
Notification obligations where there is no replacement course or student elects re-crediting
166-35(1)
This section applies if:
(a)
a higher education provider *defaults in relation to a student; and
(b)
either of the following apply:
(i)
the Director decides, under paragraph 166-26B(2)(b), that the Director is not satisfied that there is a suitable *replacement course for the person;
(ii)
the person elects, under subparagraph 166-26B(4)(a)(iii), to have an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the person received for the unit re-credited to the student's *HELP balance.
History
S 166-35(1) amended by No 101 of 2020, s 3 and Sch 2 item 96, by substituting para (b), applicable in relation to provider defaults that occur on or after 1 January 2021. Para (b) formerly read:
(b)
either:
(i)
the *HELP Tuition Protection Director decides, under paragraph 166-25(1)(b), that the Director is not satisfied that there is a suitable *replacement course for the student; or
(ii)
the student elects, under subparagraph 166-25(3)(a)(iii), to have an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit *re-credited to the student's *HELP balance.
166-35(2)
The *Higher Education Tuition Protection Director must give a written notice to the *Secretary of that fact.
History
S 166-35(2) amended by No 101 of 2020, s 3 and Sch 2 item 10, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
166-35(3)
The *Higher Education Tuition Protection Director must give a written notice to the provider stating that an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit will be *re-credited to the student's *HELP balance.
History
S 166-35(3) amended by No 101 of 2020, s 3 and Sch 2 item 10, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
History
S 166-35 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 166-40
Other tuition protection information must be provided
166-40(1)
This section applies to a higher education provider if:
(a)
the *Higher Education Tuition Protection Director believes on reasonable grounds that the provider has information relevant to the Director's functions under this Act; and
(b)
the Director, by written notice given to the provider, requests the provider to give the Director the information:
(i)
within the period (not shorter than 14 days after the notice is given)specified in the notice; and
(ii)
in the manner specified in the notice.
166-40(2)
The provider must comply with the notice within the period specified in the notice.
Civil penalty
166-40(3)
A higher education provider is liable to a civil penalty if the provider contravenes subsection (2).
Civil penalty: 60 penalty units.
Offence
166-40(4)
A higher education provider commits an offence of strict liability if the provider contravenes subsection (2).
Penalty: 60 penalty units.
History
S 166-40 inserted by No 101 of 2020, s 3 and Sch 2 item 97, applicable in relation to provider defaults that occur on or after 1 January 2021.
SECTION 166-45
Continuing application of Part to certain persons
166-45(1)
This Part continues to apply in relation to a person that was a higher education provider as if the person were still a higher education provider.
166-45(2)
Subsection (1) applies for the purposes of dealing with or resolving any matter that arose during, or that relates to, the period when the person was a higher education provider.
History
S 166-45 inserted by No 101 of 2020, s 3 and Sch 2 item 97, applicable in relation to provider defaults that occur on or after 1 January 2021.
PART 5-1B - HIGHER EDUCATION TUITION PROTECTION FUND, HIGHER EDUCATION TUITION PROTECTION DIRECTOR AND HIGHER EDUCATION TUITION PROTECTION FUND ADVISORY BOARD
History
Pt 5-1B heading substituted by No 101 of 2020, s 3 and Sch 2 item 11, effective 1 January 2021. The heading formerly read:
PART 5-1B - HELP TUITION PROTECTION FUND, HELP TUITION PROTECTION DIRECTOR AND HELP TUITION PROTECTION FUND ADVISORY BOARD
Pt 5-1B inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
Division 1 - Higher Education Tuition Protection Fund
History
Div 1 heading substituted by No 101 of 2020, s 3 and Sch 2 item 12, effective 1 January 2021. The heading formerly read:
Division 1 - HELP Tuition Protection Fund
Div 1 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 167-1
Name of Fund
167-1(1)
The HELP Tuition Protection Fund is continued in existence with the new name *Higher Education Tuition Protection Fund.
History
S 167-1(1) substituted by No 101 of 2020, s 3 and Sch 2 item 13, effective 1 January 2021. S 167-1(1) formerly read:
167-1(1)
The *HELP Tuition Protection Fund is established by this section.
167-1(2)
The *Higher Education Tuition Protection Fund is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.
History
S 167-1(2) amended by No 101 of 2020, s 3 and Sch 2 item 14, by substituting "*Higher Education Tuition Protection Fund" for "*HELP Tuition Protection Fund", effective 1 January 2021.
History
S 167-1 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 167-5
167-5
Credits to the Higher Education Tuition Protection Fund
There must be credited to the *Higher Education Tuition Protection Fund amounts equal to the following:
(a)
each amount of *HELP tuition protection levy received from a higher education provider;
(aa)
each amount of *up-front payments tuition protection levy received from a *registered higher education provider;
(b)
each amount paid by a higher education provider to the Commonwealth under subsection 36-24A(2), or subsection 110-5(1) because of re-crediting under section 104-42, if the balance of the Fund had previously been reduced under paragraph 167-10(1)(g) in relation to that amount;
(ba)
each amount paid by a *registered higher education provider to the *Higher Education Tuition Protection Director under subsection 62L(2) of the *TEQSA Act;
(c)
any other money appropriated by the Parliament for the purposes of the Higher Education Tuition Protection Fund;
(d)
any penalties for late payment of HELP tuition protection levy;
(da)
any penalties for late payment of up-front payments tuition protection levy;
(e)
each amount received by the Commonwealth for the purposes of the Higher Education 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:
HELP tuition protection levy is imposed by the Higher Education Support (HELP Tuition Protection Levy) Act 2019. The Higher Education Provider Guidelines deal with collection of the levy: see section 19-66A.
Note 3:
Up-front payments tuition protection levy is imposed by the Higher Education (Up-front Payments Tuition Protection Levy) Act 2020. The Up-front Payments Guidelines deal with collection of the levy: see subsection 26A(5) of the TEQSA Act.
History
S 167-5 amended by No 101 of 2020, s 3 and Sch 2 item 98, by substituting "subsection 36-24A(2)" for "paragraph 36-24A(2)(b)" in para (b), applicable in relation to provider defaults that occur on or after 1 January 2021.
S 167-5 amended by No 101 of 2020, s 3 and Sch 2 items 16-23, by substituting "*Higher Education Tuition Protection Fund" for "*HELP Tuition Protection Fund", inserting para (aa), substituting "paragraph 167-10(1)(g)" for "paragraph 167-10(1)(f)" in para (b), inserting para (ba), substituting "Higher Education Tuition Protection Fund" for "HELP Tuition Protection Fund" in para (c), inserting para (da), substituting "Higher Education Tuition Protection Fund" for "HELP Tuition Protection Fund" in para (e) and inserting note 3, effective 1 January 2021.
S 167-5 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 167-10
Purposes of the Higher Education Tuition Protection Fund
167-10(1)
The purposes of the *Higher Education Tuition Protection Fund are as follows:
(a)
making payments in connection with tuition protection under this Act and the *Higher Education Provider Guidelines;
(b)
making payments in connection with tuition protection under the *TEQSA Act and the *Up-front Payments Guidelines;
(c)
paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in the performance of the *Higher Education Tuition Protection Director's functions, including in managing the Fund;
(d)
paying any remuneration and allowances payable to the Higher Education Tuition Protection Director;
(e)
paying any remuneration and allowances payable to the members of the *Higher Education Tuition Protection Fund Advisory Board;
(f)
paying any amount that is required or permitted to be repaid;
(g)
reducing the balance of the Fund (and therefore the available appropriation for the Fund) without making a real or notional payment.
Note 1:
See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).
Note 2:
Part 5A of the TEQSA Act deals with tuition protection for students that make an up-front payment for a unit of study.
History
S 167-10(1) substituted by No 101 of 2020, s 3 and Sch 2 item 25, effective 1 January 2021. S 167-10(1) formerly read:
167-10(1)
The purposes of the *HELP 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 *HELP Tuition Protection Director's functions, including in managing the HELP Tuition Protection Fund;
(c)
paying any remuneration and allowances payable to the HELP Tuition Protection Director;
(d)
paying any remuneration and allowances payable to the members of the *HELP 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).
167-10(2)
The Higher Education Provider Guidelines 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 1:
For example, the Higher Education Provider Guidelines may provide that a replacement provider may receive a transfer payment if a student accepts an offer of a replacement course with the provider.
Note 2:
For the purposes of paragraph (1)(b), subsection 26A(6) of the TEQSA Act provides that the Up-front Payments Guidelines may make provision in relation to the making of payments for the purposes of that paragraph.
History
S 167-10(2) amended by No 101 of 2020, s 3 and Sch 2 item 26, by substituting notes 1 and 2 for the note, effective 1 January 2021. The note formerly read:
Note:
For example, the Higher Education Provider Guidelines may provide that a replacement provider may receive a transfer payment if a student accepts an offer of a replacement course with the provider.
167-10(3)
The purposes in subsection (1) do not include paying or discharging any costs, expenses or other obligations associated with services provided to the *Higher Education Tuition Protection Director by any employee or officer of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013).
History
S 167-10(3) amended by No 101 of 2020, s 3 and Sch 2 item 27, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
History
S 167-10 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
Division 2 - Higher Education Tuition Protection Director
History
Div 2 heading substituted by No 101 of 2020, s 3 and Sch 2 item 28, effective 1 January 2021. The heading formerly read:
Division 2 - HELP Tuition Protection Director
Div 2 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 167-15
Higher Education Tuition Protection Director
167-15(1)
There is to be a *Higher Education Tuition Protection Director.
167-15(2)
The office of *Higher Education 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 VSL Tuition Protection Director under the VET Student Loans Act 2016.
167-15(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.
History
S 167-15 substituted by No 101 of 2020, s 3 and Sch 2 item 29, effective 1 January 2021. S 167-15 formerly read:
SECTION 167-15 HELP Tuition Protection Director
167-15(1)
There is to be a *HELP Tuition Protection Director.
167-15(2)
The office of *HELP 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 VSL Tuition Protection Director under the VET Student Loans Act 2016.
167-15(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.
S 167-15 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 167-20
Functions of the Higher Education Tuition Protection Director
167-20(1)
The *Higher Education Tuition Protection Director has the following functions:
(a)
facilitating and monitoring the placement of students in relation to whom a higher education provider has *defaulted;
(aa)
facilitating and monitoring the placement of students under Part 5A of the *TEQSA Act, in relation to whom a *registered higher education provider has defaulted (within the meaning of that Act);
(b)
paying amounts out of, or reducing the balance of, the *Higher Education Tuition Protection Fund under section 167-10;
(c)
reporting to the Minister on:
(i)
the operation of Part 5-1A of this Act and Part 5A of the TEQSA Act (both of which deal with tuition protection); and
(ii)
the financial status of the Higher Education Tuition Protection Fund;
(d)
managing the Higher Education Tuition Protection Fund in a way that ensures that it is able to meet all its liabilities from time to time;
(e)
making the legislative instrument each year under section 13 of the Higher Education Support (HELP Tuition Protection Levy) Act 2019;
(ea)
making the legislative instrument each year under section 13 of the Higher Education (Up-front Payments Tuition Protection Levy) Act 2020;
(f)
recommending that the Secretary take action against a higher education provider that has defaulted in relation to a student;
(fa)
recommending that *TEQSA take action against a registered higher education provider that has defaulted in relation to a student (within the meaning of the TEQSA 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.
History
S 167-20(1) amended by No 101 of 2020, s 3 and Sch 2 items 31-39, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", inserting para (aa), substituting "*Higher Education Tuition Protection Fund" for "*HELP Tuition Protection Fund" in para (b), substituting para (c)(i), substituting "Higher Education Tuition Protection Fund" for "HELP Tuition Protection Fund" in para (c)(ii), substituting para (d), substituting "under section 13" for "for the purposes of section 12" in para (e), and inserting para (ea) and (fa), effective 1 January 2021. Para (c)(i) and (d) formerly read:
(i)
the operation of Part 5-1A (tuition protection); and
(d)
managing the HELP 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 HELP Tuition Protection Fund);
167-20(2)
The *Higher Education 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.
History
S 167-20(2) amended by No 101 of 2020, s 3 and Sch 2 item 40, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
167-20(3)
The *HigherEducation Tuition Protection Director must, in performing a function, or exercising a power, under this section, have regard to how the performance of that function, or exercise of that power, will affect the *tuition protection requirements under this Act and the tuition protection requirements within the meaning of the *TEQSA Act.
History
S 167-20(3) inserted by No 101 of 2020, s 3 and Sch 2 item 41, effective 1 January 2021.
History
S 167-20 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 167-25
Administrative provisions relating to the Higher Education Tuition Protection Director
167-25(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 *Higher Education Tuition Protection Director in accordance with columns 2 and 3 of the item.
Administrative provisions relating to the Higher Education Tuition Protection Director
|
Item
|
Column 1
|
Column 2
|
Column 3
|
|
This provision of the
Education Services for Overseas Students Act 2000 …
|
applies in relation to the Higher Education Tuition Protection Director as if the reference in that provision to …
|
were a reference to …
|
1 |
A provision covered by subsection (2) of this section |
TPS Director |
Higher Education Tuition Protection Director |
2 |
A provision covered by subsection (2) of this section |
the regulations |
the Higher Education Provider Guidelines |
3 |
A provision covered by subsection (2) of this section |
the Minister |
the Minister administering this Act |
4 |
A provision covered by subsection (2) of this section |
the Department |
the Department administered by the Minister administering this Act |
History
S 167-25(1) amended by No 101 of 2020, s 3 and Sch 2 items 43-46, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", "
Higher Education Tuition Protection Director
" for "
HELP Tuition Protection Director
" in table heading, "
Higher Education Tuition Protection Director
" for "
HELP Tuition Protection Director
" in table heading to column 2 and substituting table item 1, effective 1 January 2021. Table item 1 formerly read:
1 |
A provision covered by subsection (2) of this section |
TPS Director |
HELP Tuition Protection Director |
167-25(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.
167-25(3)
For the purposes of section 54E of the Education Services for Overseas Students Act 2000, the Minister administering that Act is taken to have given approval to:
(a)
the TPS Director to engage in paid employment as the *Higher Education Tuition Protection Director; and
(b)
the Higher Education Tuition Protection Director to engage in paid employment as the TPS Director.
History
S 167-25(3) amended by No 101 of 2020, s 3 and Sch 2 items 47 and 48, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director" in para (a) and "Higher Education Tuition Protection Director" for "HELP Tuition Protection Director" in para (b), effective 1 January 2021.
167-25(4)
The Minister may terminate the appointment of the TPS Director if:
(a)
the TPS Director engages, except with the Minister's approval, in paid employment outside the duties of his or her office as *Higher Education Tuition Protection Director; or
(b)
the Higher Education 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 Higher Education Tuition Protection Director by item 1 of the table in subsection (1) of this section.
History
S 167-25(4) amended by No 101 of 2020, s 3 and Sch 2 items 49 and 50, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director" in para (a) and "Higher Education Tuition Protection Director" for "HELP Tuition Protection Director" (wherever occurring) in para (b), effective 1 January 2021.
167-25(5)
The *Higher Education Tuition Protection Director is not personally subject to any liability to any person (other than the Commonwealth) in respect of anything done, or omitted to be done, in good faith in the exercise or performance of the Director's powers or functions.
History
S 167-25(5) substituted by No 101 of 2020, s 3 and Sch 2 item 51, effective 1 January 2021. S 167-25(5) formerly read:
167-25(5)
The *HELP Tuition Protection Director is not personally subject to any liability to any person (other than the Commonwealth) in respect of anything done, or omitted to be done, in good faith in the exercise or performance of powers or functions under this Act.
167-25(6)
In this section:
TPS Director
has the same meaning as in the Education Services for Overseas Students Act 2000.
History
S 167-25 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
Division 3 - Higher Education Tuition Protection Fund Advisory Board
History
Div 3 heading substituted by No 101 of 2020, s 3 and Sch 2 item 52, effective 1 January 2021. The heading formerly read:
Division 3 - HELP Tuition Protection Fund Advisory Board
Div 3 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 167-30
Establishment and membership
167-30(1)
The *Higher Education Tuition Protection Fund Advisory Board is established by this section.
History
S 167-30(1) amended by No 101 of 2020, s 3 and Sch 2 item 53, by substituting "*Higher Education Tuition Protection Fund Advisory Board" for "*HELP Tuition Protection Fund Advisory Board", effective 1 January 2021.
167-30(2)
The members of the *Higher Education 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.
History
S 167-30(2) amended by No 101 of 2020, s 3 and Sch 2 item 53, by substituting "*Higher Education Tuition Protection Fund Advisory Board" for "*HELP Tuition Protection Fund Advisory Board", effective 1 January 2021.
167-30(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.
167-30(4)
The Chair of the *Higher Education 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.
History
S 167-30(4) amended by No 101 of 2020, s 3 and Sch 2 item 53, by substituting "*Higher Education Tuition Protection Fund Advisory Board" for "*HELP Tuition Protection Fund Advisory Board", effective 1 January 2021.
167-30(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.
167-30(6)
The Deputy Chair of the *Higher Education 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.
History
S 167-30(6) amended by No 101 of 2020, s 3 and Sch 2 item 53, by substituting "*Higher Education Tuition Protection Fund Advisory Board" for "*HELP Tuition Protection Fund Advisory Board", effective 1 January 2021.
167-30(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 Minister is satisfied that the person has qualifications or experience that the Minister considers relevant to the performance of the *Higher Education Tuition Protection Fund Advisory Board's functions.
History
S 167-30(7) amended by No 101 of 2020, s 3 and Sch 2 item 54, by substituting "*Higher Education Tuition Protection Fund Advisory Board's" for "*HELP Tuition Protection Fund Advisory Board's", effective 1 January 2021.
History
S 167-30 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 167-35
Function of the Higher Education Tuition Protection Fund Advisory Board
167-35(1)
The *Higher Education Tuition Protection Fund Advisory Board's functions are to provide advice and make recommendations to the *Higher Education Tuition Protection Director in relation to:
(a)
the making of a legislative instrument each year under section 13 of the Higher Education Support (HELP Tuition Protection Levy) Act 2020; and
(b)
the making of a legislative instrument each year under section 13 of the Higher Education (Up-front Payments Tuition Protection Levy) Act 2020.
167-35(2)
The advice and recommendations may be made either on the *Higher Education Tuition Protection Fund Advisory Board's own initiative or at the request of the *Higher Education Tuition Protection Director.
History
S 167-35 substituted by No 101 of 2020, s 3 and Sch 2 item 55, effective 1 January 2021. S 167-35 formerly read:
SECTION 167-35 Function of the HELP Tuition Protection Fund Advisory Board
167-35
The *HELP Tuition Protection Fund Advisory Board's function is, either on its own initiative or at the request of the *HELP 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 Higher Education Support (HELP Tuition Protection Levy) Act 2019.
S 167-35 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 167-40
Administrative provisions relating to the Higher Education Tuition Protection Fund Advisory Board
167-40(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 *Higher Education Tuition Protection Fund Advisory Board in accordance with columns 2 and 3 of the item.
Administrative provisions relating to the Higher Education Tuition Protection Fund Advisory Board
|
Item
|
Column 1
|
Column 2
|
Column 3
|
|
This provision of the
Education Services for Overseas Students Act 2000 …
|
applies in relation to the Higher Education Tuition Protection Fund Advisory Board as if the reference in that provision to …
|
were a reference to …
|
1 |
A provision covered by subsection (2) of this section |
the Board |
the Higher Education Tuition Protection Fund Advisory Board |
2 |
A provision covered by subsection (2) of this section |
the Chair |
the Chair of the Higher Education Tuition Protection Fund Advisory Board |
3 |
A provision covered by subsection (2) of this section |
the Deputy Chair |
the Deputy Chair of the Higher Education Tuition Protection Fund Advisory Board |
4 |
A provision covered by subsection (2) of this section |
a Board member |
a member of the Higher Education Tuition Protection Fund Advisory Board |
5 |
A provision covered by subsection (2) of this section |
the Board members |
the members of the Higher Education Tuition Protection Fund Advisory Board |
6 |
A provision covered by subsection (2) of this section |
the Minister |
the Minister administering this Act |
7 |
Section 55E |
the regulations |
the Higher Education Provider Guidelines |
8 |
Paragraph 55L(2)(d) |
section 55H |
section 55H as applied to a member of the Higher Education Tuition Protection Fund Advisory Board by this section |
9 |
Paragraph 55L(2)(d) |
section 55J |
section 55J as applied to a member of the Higher Education Tuition Protection Fund Advisory Board by this section |
10 |
Paragraph 56C(2)(a) |
section 55J |
section 55J as applied to a member of the Higher Education Tuition Protection Fund Advisory Board by this section |
History
S 167-40(1) amended by No 101 of 2020, s 3 and Sch 2 items 57 and 58, by substituting "*Higher Education Tuition Protection Fund Advisory Board" for "*HELP Tuition Protection Fund Advisory Board" and substituting "Higher Education Tuition Protection Fund Advisory Board" for "HELP Tuition Protection Fund Advisory Board" (wherever occurring) in the table, effective 1 January 2021.
167-40(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.
167-40(3)
A member of the *Higher Education Tuition Protection Fund Advisory Board is not personally subject to any liability to any person (other than the Commonwealth) in respect of anything done, or omitted to be done, in good faith in the exercise or performance of the Board's powers or functions.
History
S 167-40(3) substituted by No 101 of 2020, s 3 and Sch 2 item 59, effective 1 January 2021. S 167-40(3) formerly read:
167-40(3)
A member of the *HELP Tuition Protection Fund Advisory Board is not personally subject to any liability to any person (other than the Commonwealth) in respect of anything done, or omitted to be done, in good faith in the exercise or performance of powers or functions under this Act or the Higher Education Support (HELP Tuition Protection Levy) Act 2019.
History
S 167-40 inserted by No 111 of 2019, s 3 and Sch 2 item 16, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
PART 5-2 - ADMINISTRATIVE
REQUIREMENTS ON HIGHER EDUCATION PROVIDERS
Division 169 - Administrative requirements on higher education providers
SECTION 169-1
169-1
What this Part is about
This Part imposes a number of administrative
requirements on higher education providers.
Note:
It is a quality and accountability requirement that a higher education
provider comply with this Act: see section 19-65.
SECTION 169-5
Notices
Who gets a notice?
169-5(1)
A higher education provider must give such notices as are required by the Administration Guidelines to a person:
(a)
who is enrolled with the provider for a unit of study; and
(b)
who:
(i)
is seeking Commonwealth assistance under this Act for the unit or for a *student services and amenities fee imposed on the person by the provider; or
(ii)
is a *Commonwealth supported student for the unit.
History
S 169-5(1) amended by No 130 of 2011, s 3 and Sch 1 item 22, by inserting "or for a *student services and amenities fee imposed on the person by the provider" after "unit" in para (b)(i), effective 1 January 2012.
169-5(1A)
A higher education provider must also give such notices as are required by the Administration Guidelines to a person:
(a)
who is enrolled with the provider for an *accelerator program course; and
(b)
who is seeking Commonwealth assistance under this Act for the accelerator program course or for a *student services and amenities fee imposed on the person by the provider.
History
S 169-5(1A) inserted by No 36 of 2023, s 3 and Sch 1 item 35, effective 29 June 2023.
Contents of notice
169-5(2)
A notice must contain the information set out in the Administration Guidelines as information that must be provided in such a notice.
Date by which notice to be given
169-5(3)
A notice must be given within the period set out in the Administration Guidelines.
Purpose and effect of notice
169-5(4)
A notice under this section is given for the purpose only of providing information to a person. Any liability or entitlement of a person under this Act (including the person's *Student Learning Entitlement) is not affected by:
(a)
the failure of a higher education provider to give a notice under this section; or
(b)
the failure of a higher education provider to give such a notice by the date required under the Administration Guidelines; or
(c)
the notice containing an incorrect statement.
History
S 169-5(4) amended by No 93 of 2020, s 3 and Sch 4B item 7, by inserting "(including the person's *Student Learning Entitlement)", effective 1 January 2022.
S 169-5(4) amended by No 104 of 2011, s 3 and Sch 2 item 18, by omitting "(including the person's *Student Learning Entitlement)" after "under this Act", 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.
SECTION 169-10
Correction of notices
Higher education provider to correct notice
169-10(1)
If, after giving a person a notice under section 169-5, a higher education provider is satisfied that a material particular in the notice was not, or has ceased to be, correct, the provider must give a further written notice to the person setting out the correct particular.
Person may request correction of notice
169-10(2)
A person who receives a notice from a higher education provider under section 169-5 may give to the provider a written request for the notice to be corrected in respect of a material particular if the person considers that the notice was not, or has ceased to be, correct in that particular.
169-10(3)
The request must be given to an *appropriate officer of the provider either:
(a)
within 14 days after the day the notice was given; or
(b)
within such further period as the provider allows for the giving of the request.
169-10(4)
The request must:
(a)
specify the particular in the notice that the person considers is incorrect; and
(b)
specify the reasons the person has for considering that the particular is incorrect.
169-10(5)
The making of the request does not affect any liability or entitlement of the person under this Act (including the person's *Student Learning Entitlement).
History
S 169-10(5) amended by No 93 of 2020, s 3 and Sch 4B item 8, by inserting "(including the person's *Student Learning Entitlement)", effective 1 January 2022.
S 169-10(5) amended by No 104 of 2011, s 3 and Sch 2 item 19, by omitting "(including the person's *Student Learning Entitlement)" after "under this Act", 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.
Higher education provider to process request
169-10(6)
If a higher education provider receives a request under this section the provider must, as soon as practicable:
(a)
determine the matter to which the request relates; and
(b)
notify the person in writing of the provider's determination; and
(c)
if the provider determines that a material particular in the notice was not, or has ceased to be, correct - give a further notice under subsection (1).
SECTION 169-15
Charging student contribution amounts and tuition fees
169-15(1)
A higher education provider:
(a)
must require any student who:
(i)
is a *Commonwealth supported student in relation to a unit of study; and
(ii)
is enrolling in the unit with the provider; and
(iii)
is not an *exempt student for the unit;
to pay to the provider the student's *student contribution amount for the unit; and
(b)
must not require the student to pay any of his or her *tuition fee or any other *fee for the unit.
169-15(1A)
Despite subsection (1), a higher education provider must not require a student who is enrolling in a unit that is a *replacement unit to pay to the provider the student's *student contribution amount for the unit.
History
S 169-15(1A) amended by No 111 of 2019, s 3 and Sch 2 item 17, by substituting "that is a *replacement unit" for "in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements", effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
169-15(2)
A higher education provider:
(a)
must require any *domestic student who:
(i)
is not a *Commonwealth supported student in relation to a unit of study; and
(ii)
is enrolling in the unit with the provider; and
(iii)
is not an *exempt student for the unit;
to pay to the provider the student's *tuition fee for the unit; and
(b)
must not require any domestic student to pay any other *fee, or any of his or her *student contribution amount, for the unit.
169-15(2A)
Despite subsection (2), a higher education provider must not require a domestic student who is enrolling in a unit that is a *replacement unit to pay to the provider the student's *tuition fee for the unit.
History
S 169-15(2A) amended by No 111 of 2019, s 3 and Sch 2 item 17, by substituting "that is a *replacement unit" for "in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements", effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
169-15(3)
However (unless subsection (4) applies), a higher education provider must repay to a person any payment of his or her *student contribution amount or *tuition fee for a unit of study that the person made on or before the *census date for the unit if the person is no longer enrolled in the unit at the end of the census date.
Note:
Other provisions about student contribution amounts and tuition fees are set out in Subdivision 19-F and Parts 2-2 and 3-2.
169-15(4)
Subsection (3) does not apply if:
(a)
the student is no longer enrolled in the unit at the end of the census date because the provider *defaulted in relation to the student; and
(b)
the student has accepted an offer of a place in a *replacement unit or *replacement course.
History
S 169-15(4) amended by No 101 of 2020, s 3 and Sch 2 item 99, by inserting "*replacement unit or" in para (b), applicable in relation to provider defaults that occur on or after 1 January 2021.
S 169-15(4) substituted by No 111 of 2019, s 3 and Sch 2 item 18, effective 1 January 2020. For application and transitional provisions, see note under s 16-25. S 169-15(4) formerly read:
169-15(4)
Subsection (3) does not apply if:
(a)
the student is no longer enrolled in the unit at the end of the census date because the provider has ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and
(b)
the *tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and
(c)
the student chose the option designated under those requirements as course assurance in relation to the unit.
SECTION 169-16
Charging accelerator program course fees
169-16(1)
A higher education provider:
(a)
must require any *domestic student who is enrolling in an *accelerator program course with the provider to pay to the provider the student's *accelerator program course fee for the course; and
(b)
must not require any domestic student to pay any other *fee for the course.
169-16(2)
However, a higher education provider must repay to a person any payment of the person's *accelerator program course fee for an *accelerator program course that the person made on or before the *census date for the course if the person is no longer enrolled in the course at the end of the census date.
Note:
Other provisions about accelerator program course fees are set out in Subdivision 19-F and Part 3-7.
History
S 169-16 inserted by No 36 of 2023, s 3 and Sch 1 item 36, effective 29 June 2023.
SECTION 169-17
Requirements relating to withdrawal from units of study
169-17(1)
The Higher Education Provider Guidelines may prescribe requirements to be complied with by higher education providers in relation to student withdrawal from units of study.
169-17(2)
Without limiting subsection (1), the Higher Education Provider Guidelines may:
(a)
require that fees (however described) must not be charged by higher education providers for withdrawal, either generally or in specified circumstances; or
(b)
specify requirements to be met in relation to re-enrolment after withdrawal; or
(c)
specify requirements in relation to processes and procedures for dealing with student withdrawal from units of study.
169-17(3)
A higher education provider contravenes this subsection if:
(a)
the provider is subject to a requirement under this section; and
(b)
the provider fails to comply with the requirement.
Civil penalty: 120 penalty units.
History
S 169-17 inserted by No 83 of 2017, s 3 and Sch 3 item 34, applicable in relation to students enrolled in units of study:
(a) with census dates that occur on or after 17 August 2017 (whether the units of study are part of a course commenced before or after 17 August 2017); and
(b) that are provided by higher education providers approved under section 16-25, whether approved before or after 17 August 2017.
No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable in relation to students enrolled in units of study:
(a) with census dates that occur on or after 1 January 2021 (whether the units of study are part of a course of study commenced before, on or after 1 January 2021); and
(b) that are provided by higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
SECTION 169-18
Requirements relating to withdrawal from accelerator program courses
169-18(1)
The Higher Education Provider Guidelines may prescribe requirements to be complied with by higher education providers in relation to student withdrawal from *accelerator program courses.
169-18(2)
Without limiting subsection (1), the Higher Education Provider Guidelines may:
(a)
require that fees (however described) must not be charged by higher education providers for withdrawal, either generally or in specified circumstances; or
(b)
specify requirements to be met in relation to re-enrolment after withdrawal; or
(c)
specify requirements in relation to processes and procedures for dealing with student withdrawal from *accelerator program courses.
169-18(3)
A higher education provider contravenes this subsection if:
(a)
the provider is subject to a requirement under this section; and
(b)
the provider fails to comply with the requirement.
Civil penalty: 120 penalty units.
History
S 169-18 inserted by No 36 of 2023, s 3 and Sch 1 item 37, effective 29 June 2023.
SECTION 169-20
Exempt students
169-20(1)
The
Minister may determine in writing that all students, or students of a specified
kind, are exempt from payment of their *student contribution amounts and *tuition
fees for:
(a)
any units of study undertaken
as part of a specified *course of study; or
(b)
any units of study undertaken as part of a course of study of
a specified kind.
A student, or a student
of such a kind, (as the case requires) is an
exempt
student
for those units.
169-20(2)
The
Administration Guidelines may provide that:
(a)
in
all circumstances; or
(b)
in
the circumstances specified in those guidelines;
all students are exempt from payment of their *student contribution
amounts and *tuition fees for any units of study that wholly consist of *work
experience in industry. A student is, or is in those specified circumstances,
(as the case requires) an
exempt student
for
such units.
169-20(3)
A
student is an
exempt student
for
a unit of study undertaken with a higher education provider as part of a *course
of study with that provider if:
(a)
the provider
has awarded the student an exemption scholarship for the course; and
(b)
the provider awarded the scholarship
in accordance with any requirements specified in the Administration Guidelines.
169-20(3A)
A
student is an
exempt student
for
a unit of study undertaken with one higher education provider as part of a
*course of study with another (the
home provider
)
if:
(a)
the home provider has awarded the
student an exemption scholarship for the course; and
(b)
the home provider awarded the scholarship
in accordance with any requirements specified in the Administration Guidelines;
and
(c)
the student must
undertake the unit, because it is required to complete the course.
169-20(3B)
A
student is an
exempt student
for
a unit of study undertaken with one higher education provider (the
host provider
) as part of a *course of study
undertaken with another if:
(a)
the host provider
has awarded the student an exemption for the unit; and
(b)
the host provider awarded the scholarship
in accordance with any requirements specified in the Administration Guidelines.
169-20(4)
Without
limiting the matters that may be specified in the Administration Guidelines
for the purposes of paragraph (3)(b), those matters may include one or both
of the following:
(a)
the maximum number of
exemption scholarships that a particular higher education provider may award
in respect of a year;
(b)
which
students are eligible to receive exemption scholarships.
SECTION 169-25
Determining census dates and EFTSL values
169-25(1)
A higher education provider must, for each unit of study it provides or proposes to provide during a period ascertained in accordance with the Administration Guidelines, determine, for that period:
(a)
a particular date to be the *census date for the unit; and
(b)
the *EFTSL value for the unit.
Note:
If a higher education provider provides the same unit over different periods, the unit is taken to be a different unit of study in respect of each period. Therefore the provider will have to determine a separate census date, and a separate EFTSL value, in respect of each period.
169-25(1A)
A higher education provider must, for any *accelerator program course it provides or proposes to provide during a period ascertained in accordance with the Administration Guidelines, determine, for that period:
(a)
a particular date to be the *census date for the course; and
(b)
the *EFTSL value for the course.
History
S 169-25(1A) inserted by No 36 of 2023, s 3 and Sch 1 item 38, effective 29 June 2023.
169-25(2)
A date determined under paragraph (1)(a) or (1A)(a) must be determined in accordance with the Administration Guidelines.
History
S 169-25(2) amended by No 36 of 2023, s 3 and Sch 1 item 39, by inserting "or (1A)(a)", effective 29 June 2023.
S 169-25(2) substituted by No 160 of 2012, s 3 and Sch 4 item 1, effective 1 January 2013. S 169-25(2) formerly read:
169-25(2)
A date determined under paragraph (1)(a) must not occur less than 20% of the way through the period during which the unit is undertaken.
169-25(3)
The provider must publish:
(a)
the *census date for the unit or course by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines; and
(b)
the *EFTSL value for the unit or course by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines.
Civil penalty: 60 penalty units.
History
S 169-25(3) amended by No 36 of 2023, s 3 and Sch 1 item 40, by inserting "or course" in para (a) and (b), effective 29 June 2023.
S 169-25(3) amended by No 83 of 2017, s 3 and Sch 3 item 35, by inserting civil penalty at the end, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
Variations
169-25(4)
The provider must not vary the *census date for the unit or course, or the *EFTSL value for the unit or course, after publication under subsection (3), unless the provider:
(a)
does so:
(i)
before the date ascertained in accordance with the Administration Guidelines; and
(ii)
in circumstances specified in the Administration Guidelines; or
(b)
does so with the written approval of the Minister.
Civil penalty: 60 penalty units.
History
S 169-25(4) amended by No 36 of 2023, s 3 and Sch 1 item 41, by inserting "or course" (wherever occurring), effective 29 June 2023.
S 169-25(4) amended by No 83 of 2017, s 3 and Sch 3 item 35, by inserting civil penalty at the end, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicableon and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
169-25(5)
If paragraph (4)(a) applies, the provider must publish the variation by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines.
169-25(6)
If paragraph (4)(b) applies, the provider must publish the variation by the date, and in the manner, specified by the Minister in the approval.
SECTION 169-27
Meaning of EFTSL
169-27(1)
An
EFTSL
is an equivalent full-time student load. It is a measure of the study load:
(a)
in respect of a *course of study - for a year, of a student undertaking that course of study on a full-time basis; or
(b)
in respect of an *accelerator program course - for the period of the accelerator program course, of a student undertaking that course on a full-time basis.
History
S 169-27(1) substituted by No 36 of 2023, s 3 and Sch 1 item 42, effective 29 June 2023. S 169-27(1) formerly read:
169-27(1)
An
EFTSL
is an equivalent full time student load for a year. It is a measure, in respect of a *course of study, of the study load for a year of a student undertaking that course of study on a full-time basis.
169-27(2)
For the purposes of a *course of study, a particular amount of EFTSL is an amount of study, undertaken with a higher education provider as part of the course, represented by units of study with *EFTSL values the sum of which equals that amount.
History
S 169-27(2) amended by No 36 of 2023, s 3 and Sch 1 item 43, by substituting "For the purposes of a *course of study, a particular amount of EFTSL is an amount of study, undertaken with a higher education provider as part of the course" for "A particular amount of EFTSL is an amount of study, undertaken with a higher education provider as part of a *course of study", effective 29 June 2023.
S 169-27 inserted by No 104 of 2011, s 3 and Sch 2 item 20, 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.
SECTION 169-28
Meaning of EFTSL value
EFTSL value of a unit of study
169-28(1)
The
EFTSL value
of a unit of study is the value that the higher education provider with which the unit may be undertaken determines in writing to be the EFTSL value of the unit, expressed as a fraction of one *EFTSL.
169-28(2)
If the unit can form part of more than one *course of study, the provider may determine an EFTSL value of the unit for each such course.
169-28(3)
If a unit of study is subject to separate determinations in relation to different *courses of study, a reference in this Act to the EFTSL value of the unit is, when the unit forms part of such a course, a reference to the EFTSL value of the unit determined under subsection (2) for the course.
EFTSL value of an accelerator program course
169-28(3A)
The
EFTSL value
of an *accelerator program course is the value that the higher education provider with which the course may be undertaken determines in writing to be the EFTSL value of the course, expressed as one *EFTSL or a fraction of one EFTSL.
History
S 169-28(3A) inserted by No 36 of 2023, s 3 and Sch 1 item 45, effective 29 June 2023.
Determinations to be in accordance with Administration Guidelines
169-28(4)
Determinations under this section must be in accordance with any requirements set out in the Administration Guidelines.
History
S 169-28 inserted by No 104 of 2011, s 3 and Sch 2 item 20, 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.
No 104 of 2011, s 3 and Sch 2 item 40 contains the following saving provision:
40 Saving - determination of EFTSL values
40
A determination of an EFTSL value for a unit of study that was in force immediately before commencement under section 73-15 of the old Act has effect on and after commencement as if it were made in accordance with section 169-28 of the new Act.
SECTION 169-30
Communications with the Commonwealth concerning students etc.
169-30(1)
In communications under, or for the purposes of, this Act between the Commonwealth and a higher education provider concerning a person who:
(a)
is enrolled, or seeking to enrol, in a unit of study with the provider; and
(b)
has indicated that the person is seeking Commonwealth assistance under this Act for the unit, or is a *Commonwealth supported student for the unit;
the provider must use any identifier for that person that the *Secretary has indicated must be used in such communications.
History
S 169-30(1) renumbered from s 169-30 by No 130 of 2011, s 3 and Sch 1 item 23, by inserting "(1)" before "In", effective 1 January 2012.
169-30(2)
In communications under, or for the purposes of, this Act between the Commonwealth and a higher education provider concerning a person who:
(a)
has had a *student services and amenities fee imposed on him or her by the provider; and
(b)
has indicated that the person is seeking *SA-HELP assistance for the fee;
the provider must use any identifier for that person that the *Secretary has indicated must be used in such communications.
History
S 169-30(2) inserted by No 130 of 2011, s 3 and Sch 1 item 24, effective 1 January 2012.
169-30(3)
In communications under, or for the purposes of, this Act between the Commonwealth and a higher education provider concerning a person who:
(a)
is enrolled, or seeking to enrol, in an *accelerator program course with the provider; and
(b)
has indicated that the person is seeking Commonwealth assistance under this Act for the accelerator program course;
the provider must use any identifier for that person that the *Secretary has indicated must be used in such communications.
History
S 169-30(3) inserted by No 36 of 2023, s 3 and Sch 1 item 46, effective 29 June 2023.
SECTION 169-35
6 week cut off for corrections affecting entitlement to Commonwealth assistance
169-35(1)
If:
(a)
more than 6 weeks after the *census date for a unit of study or an *accelerator program course undertaken with a higher education provider, a person gives the provider information in writing (the
correct information
) that establishes that information contained in or accompanying the person's *request for Commonwealth assistance was incorrect; and
(b)
the correct information establishes that the person was entitled to a particular kind of Commonwealth assistance other than *SA-HELP assistance;
this Act applies as if the person had never been entitled to that particular Commonwealth assistance.
History
S 169-35(1) amended by No 36 of 2023, s 3 and Sch 1 item 47, by inserting "or an *accelerator program course" in para (a), effective 29 June 2023.
S 169-35(1) renumbered from s 169-35 and amended by No 130 of 2011, s 3 and Sch 1 item 26, by inserting "(1)" before "If:" and inserting "other than *SA-HELP assistance" in para (b), effective 1 January 2012.
169-35(2)
If:
(a)
more than 6 weeks after the day on which a *student services and amenities fee imposed on a person by a higher education provider was payable, the person gives the provider information in writing (the
correct information
) that establishes that information contained in or accompanying a *request for Commonwealth assistance made by the person in relation to the fee was incorrect; and
(b)
the correct information establishes that the person was entitled to *SA-HELP assistance for the fee;
this Act applies as if the person had never been entitled to the SA-HELP assistance.
History
S 169-35(2) inserted by No 130 of 2011, s 3 and Sch 1 item 27, effective 1 January 2012.
History
S 169-35 inserted by No 72 of 2007, s 3 and Sch 3 item 2, applicable in relation to a *census date that occurs on or after 1 January 2008.
PART 5-3 - ELECTRONIC COMMUNICATIONS
Division 174 - Electronic communications
SECTION 174-1
174-1
What this Part is about
Certain documents that this Act requires or
permits to be given between students and higher education providers may be
transmitted electronically.
SECTION 174-5
Guidelines may deal with electronic communications
174-5(1)
The Administration Guidelines may make provision for or in relation to requiring or permitting information or documents to be given by students to higher education providers, or by higher education providers to students, in accordance with particular information technology requirements:
(a)
on a particular kind of data storage device; or
(b)
by means of a particular kind of electronic communication.
174-5(1A)
A higher education provider contravenes this subsection if:
(a)
the provider is subject to a requirement under subsection (1); and
(b)
the provider fails to comply with the requirement.
Civil penalty: 60 penalty units.
History
S 174-5(1A) inserted by No 83 of 2017, s 3 and Sch 3 item 36, applicable in relation to higher education providers approved under section 16-25, whether approved before or after 17 August 2017. No 93 of 2020, s 3 and Sch 4 item 1 provides that this amendment is applicable on and after 1 January 2021 in relation to higher education providers taken to be approved under section 16-5, whether taken to be approved before, on or after 1 January 2021.
174-5(2)
The Administration Guidelines may make provision for or in relation to requiring, in relation to an electronic communication from a student to a higher education provider:
(a)
that the communication contain an electronic signature (however described); or
(b)
that the communication contain a unique identification in an electronic form; or
(c)
that a particular method be used to identify the originator of the communication and to indicate the originator's approval of the information communicated.
174-5(3)
The reference in subsection (1) to giving information includes a reference to anything that is
giving information
for the purposes of section 9 of the Electronic Transactions Act 1999.
174-5(4)
In this section:
data storage device
has the same meaning as in the Electronic Transactions Act 1999.
electronic communication
has the same meaning as in the Electronic Transactions Act 1999.
information
has the same meaning as in the Electronic Transactions Act 1999.
information technology requirements
has the same meaning as in the Electronic Transactions Act 1999.
History
S 174-5 substituted for s 174-5, 174-10, 174-15, 174-20 and 174-25 by No 121 of 2006, s 3 and Sch 7 item 1, effective 4 November 2006. S 174-5 formerly read:
SECTION 174-5 Electronic communications from students to highereducation providers
174-5(1)
If:
(a)
a provision of this Act requires or permits a document, notice, request or other form (the
document
) that is to be given by a student to a higher education provider; and
(b)
the student gives the document to the provider by *electronic communication using an *information system in respect of which:
(i)
there is a declaration by the provider under subsection (2); and
(ii)
there is a declaration by the Minister under subsection (3);
the student complies with the provision so far as it requires or permits the student to give the document to the provider.
174-5(2)
A higher education provider may declare, in writing given to the Minister, that a specified *information system may be used by any student to give to the provider a document permitted or required by this Act to be given by the student to the provider.
174-5(3)
The Minister may declare, in writing given to a higher education provider, that an *information system declared by the provider under subsection (2) meets the Administration Guidelines referred to in subsection (4).
174-5(4)
The Administration Guidelines may set out the requirements relating to *information systems that may be used by students to give to higher education providers documents that, under this Act, they are required or permitted to be given to higher education providers.
SECTION 174-10
174-10
Electronic communication by students of students' signatures
(Repealed by No 121 of 2006)
History
S 174-5 substituted for s 174-5, 174-10, 174-15, 174-20 and 174-25 by No 121 of 2006, s 3 and Sch 7 item 1, effective 4 November 2006, S 174-10 formerly read:
SECTION 174-10 Electronic communication by students of students' signatures
174-10(1)
If:
(a)
a provision of this Act requires a student to sign a document notice, request or other form (the
document
) that is to be given to a higher education provider; and
(b)
the student's identity and approval of the document are made apparent by a method in respect of which:
(i)
there is a declaration by the provider under subsection (2); and
(ii)
there is a declaration by the Minister under subsection (3);
the student complies with the requirement.
174-10(2)
A higher education provider may declare, in writing given to the Minister, that a specified method may be used, in connection with a document required to be signed by a student, to indicate the student's identity and approval of the document.
174-10(3)
The Minister may declare, in writing given to a higher education provider, that a method declared by the provider under subsection (2) meets the Administration Guidelines referred to in subsection (4).
174-10(4)
The Administration Guidelines may set out requirements relating to methods that may be used by students to identify themselves, and indicate their approval of documents, in connection with documents that are required to be signed by students and given to a higher education provider.
SECTION 174-15
174-15
The effect of sections 174-5 and 174-10
(Repealed by No 121 of 2006)
History
S 174-5 substituted for s 174-5, 174-10, 174-15, 174-20 and 174-25 by No 121 of 2006, s 3 and Sch 7 item 1, effective 4 November 2006. S 174-15 formerly read:
SECTION 174-15 The effect of sections 174-5 and 174-10
Only apply when Electronic Transactions Act does not apply
174-15(1)
Sections 174-5 and 174-10 only apply at a time when sections 9, 10 and 11 of the Electronic Transactions Act 1999 do not apply to:
(a)
the requirements under this Act for a student to give a document to a higher education provider or sign a document that is to be given to a higher education provider; or
(b)
a permission under this Act for a student to give a document to a higher education provider.
Note:
An exemption from the operation of a section of the Electronic Transactions Act 1999 may be given under regulations made under that Act.
Not a limit on how a student may comply with this Act
174-15(2)
Neither section 174-5 nor section 174-10 limit how a student may comply with a provision of this Act.
SECTION 174-20
174-20
Notices electronically communicated from higher education providers to students
(Repealed by No 121 of 2006)
History
S 174-5 substituted for s 174-5, 174-10, 174-15, 174-20 and 174-25 by No 121 of 2006, s 3 and Sch 7 item 1, effective 4 November 2006. S 174-20 formerly read:
SECTION 174-20 Notices electronically communicated from higher education providers to students
174-20
If:
(a)
a higher education provider gives a student a notice that under section 169-5 the provider is required to give in writing; and
(b)
the notice is given using an *information system to which the student has access provided by the provider in accordance with the Administration Guidelines referred to in section 174-25; and
(c)
the student *consents to receiving notices under section 169-5 by way of *electronic communication;
then the requirements of section 9 of the Electronic Transactions Act 1999 are taken to have been met.
Note:
This means that the requirement to give notice in writing is met by the electronic communication of the notice.
SECTION 174-25
174-25
Guidelines may deal with electronic communications from higher education providers to students
(Repealed by No 121 of 2006)
History
S 174-5 substituted for s 174-5, 174-10, 174-15, 174-20 and 174-25 by No 121 of 2006, s 3 and Sch 7 item 1, effective 4 November 2006. S 174-25 formerly read:
SECTION 174-25 Guidelines may deal with electronic communications from higher education providers to students
174-25
The Administration Guidelines may set out requirements relating to higher education providers providing students with access to *information systems that higher education providers use to give students notices under section 169-5.
PART 5-4 - Management of information
History
Pt 5-4 heading substituted by No 6 of 2012, s 3 and Sch 1 item 8, applicable in relation to information whether it was obtained or created before, on or after 7 March 2012. The heading formerly read:
PART 5-4 - Protection of personal information
Division 179 - Protection of personal information
SECTION 179-1
179-1
What this Division is about
An officer who discloses, copies or records personal information otherwise than in the course of official employment, or causes unauthorised access to or modification of personal information, commits an offence unless an exception applies.
History
S 179-1 amended by No 103 of 2019, s 3 and Sch 3 item 7, by inserting "unless an exception applies", applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
SECTION 179-5
179-5
Meaning of personal information
Personal information
is:
(a)
information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(i)
whether the information or opinion is true or not; and
(ii)
whether the information or opinion is recorded in a material form or not; and
(b)
obtained or created by an *officer for the purposes of any of the following:
(i)
Chapter 2;
(ii)
Chapters 3 and 4;
(iii)
Part 5-1A;
(iv)
section 26A or Part 5A of the *TEQSA Act; and
(c)
not *Australia's Economic Accelerator program information.
Note:
See Division 181 for *Australia's Economic Accelerator program information.
History
S 179-5 amended by No 5 of 2023, s 3 and Sch 1 item 4, by inserting para (c) and the note, effective 15 March 2023.
S 179-5 amended by No 101 of 2020, s 3 and Sch 2 item 72, by substituting para (b), effective 1 January 2021. Para (b) formerly read:
(b)
obtained or created by an *officer for the purposes of Chapter 2 or Chapters 3 and 4.
S 179-5 amended by No 197 of 2012, s 3 and Sch 5 item 43, by substituting para (a) in the definition of "Personal information", effective 12 March 2014. Para (a) formerly read:
(a)
information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; and
S 179-5 amended by No 121 of 2009, s 3 and Sch 2 item 1, by inserting "Chapter 2 or" after "purposes of" in para (b) of the definition of "Personal information", effective 7 December 2009.
SECTION 179-10
Use of personal information
Offence
179-10(1)
An *officer commits an offence if:
(a)
the officer either:
(i)
discloses information; or
(ii)
makes a copy or other record of information; and
(b)
the information is *personal information; and
(c)
the information was acquired by the officer in the course of the officer's *official employment; and
(d)
the disclosure did not occur, or the copy or record was not made, in the course of that official employment.
Penalty: Imprisonment for 2 years.
History
S 179-10 amended by No 103 of 2019, s 3 and Sch 3 item 9, by inserting "(1)" before "An", applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
Exception - consent
179-10(2)
Subsection (1) does not apply if the person to whom the *personal information relates has consented to the disclosure, or the making of the copy or record.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 179-10(2) inserted by No 103 of 2019, s 3 and Sch 3 item 10, applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
Exception - authorised or required by a Commonwealth law
179-10(3)
Subsection (1) does not apply if the disclosure, or the making of the copy or record, is authorised or required by a law of the Commonwealth.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 179-10(3) inserted by No 103 of 2019, s 3 and Sch 3 item 10, applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
Exception - authorised or required by certain State or Territory laws
179-10(4)
Subsection (1) does not apply if the disclosure, or the making of the copy or record, is authorised or required by a law of a State or Territory:
(a)
that relates to the administration, regulation or funding of education; or
(b)
that is specified in the Administration Guidelines for the purposes of this paragraph.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 179-10(4) inserted by No 103 of 2019, s 3 and Sch 3 item 10, applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
History
S 179-10 amended by No 73 of 2008, s 3 and Sch 1 items 28 and 29, by omitting "the officer" (first occurring) after "commits an offence if" and inserting "the officer" before "either" in para (a), effective 1 January 2004.
SECTION 179-15
Meanings of
officer
etc. and
official employment
Meaning of officer
179-15(1)
A person is an
officer
if:
(a)
the person is or was a *Commonwealth officer (see subsection (2)); or
(b)
the person is or was an *officer of a higher education provider (see subsection (3)); or
(ba)
the person is or was an *officer of a registered higher education provider (see subsection (3AA)); or
(c)
the person is or was an *officer of Open Universities Australia (see subsection (3A)); or
(d)
the person is or was an *officer of a Tertiary Admission Centre (see subsection (3B)).
History
S 179-15(1) amended by No 101 of 2020, s 3 and Sch 2 item 73, by inserting para (ba), effective 1 January 2021.
S 179-15(1) amended by No 121 of 2009, s 3 and Sch 2 item 2, by inserting para (d) at the end, effective 7 December 2009.
179-15(2)
A
Commonwealth officer
is a person who holds office under, or is employed by, the Commonwealth, and includes the following:
(a)
a person appointed or engaged under the Public Service Act 1999;
(b)
a person permanently or temporarily employed:
(i)
in the Public Service of a Territory (other than the Northern Territory); or
(ii)
in, or in connection with, the Defence Force; or
(iii)
in the Service of any authority or body constituted by or under a law of the Commonwealth or of a Territory (other than the Northern Territory);
(c)
the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
(d)
a person who, although not holding office under, or employed by:
(i)
the Commonwealth; or
(ii)
a Territory (other than the Northern Territory); or
(iii)
any authority or body constituted by or under a law of the Commonwealth or of a Territory (other than the Northern Territory);
performs services for or on behalf of the Commonwealth, a Territory (other than the Northern Territory), or such an authority or body;
(e)
a person who is an employee of the Australian Postal Corporation;
(f)
a person who performs services for or on behalf of the Australian Postal Corporation;
(g)
an employee of a person who performs services for or on behalf of the Australian Postal Corporation.
179-15(3)
A person is an
officer of a higher education provider
if the person is:
(a)
an officer or employee of the provider; or
(b)
a person who, although not an officer or employee of the provider, performs services for or on behalf of the provider.
179-15(3AA)
A person is an
officer of a registered higher education provider
if the person is:
(a)
an officer or employee of the provider; or
(b)
a person who, although not an officer or employee of the provider, performs services for or on behalf of the provider.
History
S 179-15(3AA) inserted by No 101 of 2020, s 3 and Sch 2 item 74, effective 1 January 2021.
179-15(3A)
A person is an
officer of Open Universities Australia
if the person is:
(a)
an officer or employee of *Open Universities Australia; or
(b)
a person who, although not an officer or employee of Open Universities Australia, performs services for or on behalf of Open Universities Australia.
179-15(3B)
A person is an
officer of a Tertiary Admission Centre
if the person is:
(a)
an officer or employee of the *Tertiary Admission Centre; or
(b)
a person who, although not an officer or employee of the Tertiary Admission Centre, performs services for or on behalf of the Tertiary Admission Centre.
History
S 179-15(3B) inserted by No 121 of 2009, s 3 and Sch 2 item 3, effective 7 December 2009.
Meaning of
official employment
179-15(4)
Official employment
of an *officer is:
(a)
for a *Commonwealth officer - the performance of duties or functions, or the exercise of powers under, or for the purposes of:
(i)
this Act; or
(ii)
the Higher Education Support (HELP Tuition Protection Levy) Act 2020; or
(iii)
the Higher Education (Up-front Payments Tuition Protection Levy) Act 2020; or
(iv)
the *TEQSA Act; or
(v)
the VET Student Loans Act 2016; or
(b)
for an *officer of a higher education provider - service as such an officer; or
(ba)
for an *officer of a registered higher education provider - service as such an officer; or
(c)
for an *officer of Open Universities Australia-service as such an officer; or
(d)
for an *officer of a Tertiary Admission Centre - service as such an officer.
History
S 179-15(4) amended by No 101 of 2020, s 3 and Sch 2 items 75 and 76, by substituting para (a) and inserting para (ba), effective 1 January 2021. Para (a) formerly read:
(a)
for a *Commonwealth officer - the performance of duties or functions, or the exercise of powers, under, or for the purposes of, this Act or the VET Student Loans Act 2016; or
S 179-15(4) amended by No 103 of 2019, s 3 and Sch 3 item 11, by inserting "or the VET Student Loans Act 2016" in para (a), applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
S 179-15(4) amended by No 121 of 2009, s 3 and Sch 2 item 4, by inserting para (d) at the end, effective 7 December 2009.
SECTION 179-20
179-20
When information is disclosed in the course of official employment
Without limiting the matters that are disclosures that occur in the course of an *officer's *official employment for the purposes of paragraph 179-10(d), the following disclosures are taken to be disclosures that occur in the course of an officer's official employment:
(a)
disclosure by a *Commonwealth officer of *personal information to another Commonwealth officer to assist that other officer in the other officer's official employment;
(aa)
disclosure by a Commonwealth officer of personal information to a person in connection with the provision of actuarial services for the purposes of assisting the officer to perform duties or functions or exercise powers mentioned in paragraph 179-15(4)(a);
(b)
disclosure by an officer of personal information to the Administrative Review Tribunal in connection with a *reviewable decision;
(c)
disclosure by a Commonwealth officer of personal information to an *officer of a higher education provider to assist the provider's officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act;
(caa)
disclosure by a Commonwealth officer of personal information to an *officer of a registered higher education provider to assist the provider's officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act or the *TEQSA Act;
(ca)
disclosure by a Commonwealth officer of personal information to an *officer of Open Universities Australia to assist *Open Universities Australia in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act;
(cb)
disclosure by a Commonwealth officer of personal information to an *officer of a Tertiary Admission Centre to assist the officer of the Tertiary Admission Centre in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act.
(d)
disclosure by an officer of a higher education provider of personal information to a Commonwealth officer to assist the Commonwealth officer in the Commonwealth officer's official employment;
(da)
disclosure by an officer of a registered higher education provider of personal information to a Commonwealth officer to assist the Commonwealth officer in the Commonwealth officer's official employment;
(e)
disclosure by an officer of Open Universities Australia of personal information to a Commonwealth officer to assist the Commonwealth officer in the Commonwealth officer's official employment;
(ea)
disclosure by an officer of a Tertiary Admission Centre of personal information to a Commonwealth officer to assist the Commonwealth officer in the Commonwealth officer's official employment;
(f)
disclosure by an officer of Open Universities Australia of personal information to an officer of a higher education provider to assist the provider's officer in performing duties or functions or in exercising powers, under, or for the purposes of, this Act;
(g)
disclosure by an officer of a higher education provider of personal information to an officer of Open Universities Australia to assist the officer of Open Universities Australia in performing duties or functions or in exercising powers, under, or for the purposes of, this Act.;
(h)
disclosure by an officer of a higher education provider of personal information to an officer of a Tertiary Admission Centre to assist the officer of the Tertiary Admission Centre in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act;
(i)
disclosure by an officer of a Tertiary Admission Centre of personal information to an officer of a higher education provider to assist the provider's officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act.
History
S 179-20 amended by No 39 of 2024, s 3 and Sch 5 item 34, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal" in para (b), effective 14 October 2024.
S 179-20 amended by No 101 of 2020, s 3 and Sch 2 items 77-79, by inserting para (aa), (caa) and (da), effective 1 January 2021.
S 179-20 amended by No 121 of 2009, s 3 and Sch 2 items 5 to 7, by inserting paras (cb), (ea), (h) and (i), effective 7 December 2009.
SECTION 179-25
Commissioner may disclose information
179-25(1)
Despite anything in an Act of which the *Commissioner has the general administration, the Commissioner, or a person authorised by the Commissioner, may communicate *personal information to an *officer for use by that officer:
(a)
in the case of a *Commonwealth officer - in the course of the officer's *official employment; or
(b)
in the case of an *officer of a higher education provider - to assist the officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act; or
(c)
in the case of an *officer of Open Universities Australia - to assist the officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act; or
(d)
in the case of an *officer of a Tertiary Admission Centre - to assist the officer in performing duties or functions, or in exercising powers, under, or the purposes of, this Act.
History
S 179-25(1) amended by No 121 of 2009, s 3 and Sch 2 item 8, by inserting para (d) at the end, effective 7 December 2009.
179-25(2)
Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against an Act of which the *Commissioner has the general administration, the defendant does not bear an evidential burden in relation to whether this section applies to a communication of *personal information.
SECTION 179-30
Oath or affirmation to protect information
179-30(1)
An *officer must, if and when required by the *Secretary or the *Commissioner to do so, make an oath or affirmation to protect information in accordance with this Division.
History
S 179-30(1) amended by No 6 of 2012, s 3 and Sch 1 item 10, by substituting "Division" for "Part", applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
179-30(2)
The *Secretary may determine, in writing:
(a)
the form of the oath or affirmation that the Secretary will require; and
(b)
the manner in which the oath or affirmation must be made.
179-30(3)
The *Commissioner may determine, in writing:
(a)
the form of the oath or affirmation that the Commissioner will require; and
(b)
the manner in which the oath or affirmation must be made.
SECTION 179-35
Unauthorised access to, or modification of, personal information
179-35(1)
A person commits an offence if:
(a)
the person causes any unauthorised access to, or modification of, *personal information that is:
(i)
held in a computer; and
(ii)
to which access is restricted by an access control system associated with a function of the computer; and
(b)
the person intends to cause the access or modification; and
(c)
the person knows that the access or modification is unauthorised; and
(d)
one or more of the following apply:
(i)
the personal information is held in a computer of a higher education provider;
(ii)
the personal information is held on behalf of a provider;
(iii)
the personal information is held in a computer of *Open Universities Australia;
(iv)
the personal information is held on behalf of Open Universities Australia;
(v)
the personal information is held on a computer of a *Tertiary Admission Centre;
(vi)
the personal information is held on behalf of a Tertiary Admission Centre.
Penalty: 2 years imprisonment.
History
S 179-35(1) amended by No 121 of 2009, s 3 and Sch 2 item 9, by inserting para (d)(v) and (vi) at the end of para (d), effective 7 December 2009.
179-35(2)
Absolute liability applies to paragraph (1)(d).
SECTION 179-40
179-40
Officer may use information
An *officer may use *personal information in the course of the officer's *official employment.
History
S 179-40 inserted by No 156 of 2012, s 3 and Sch 3 item 1, applicable to information obtained or created before, on or after 18 November 2012.
SECTION 179-45
179-45
This Division does not limit disclosure or use of information
This Division does not limit the disclosure or use of *personal information.
Note:
The disclosure or use of personal information may also be authorised in other circumstances. For example, see Division 180 and the Privacy Act 1988.
History
S 179-45 inserted by No 156 of 2012, s 3 and Sch 3 item 1, applicable to information obtained or created before, on or after 18 November 2012.
Division 180 - Disclosure or use of Higher Education Support Act information
History
Div 180 heading substituted by No 23 of 2013, s 3 and Sch 5 item 2, effective 29 March 2013. The heading formerly read:
Division 180 - Other rules about information
Div 180 substituted by No 156 of 2012, s 3 and Sch 3 item 2, applicable to information obtained or created before, on or after 18 November 2012. Div 180 formerly read:
Division 180 - Other rules about information
SECTION 180-1 Authorisation of certain uses and disclosures of information
Information this section applies to
180-1(1)
This section applies to information that:
(a)
is *personal information obtained in connection with an application under section 16-40 (which is about applications for approval of bodies as higher education providers); or
(b)
is information that:
(i)
is obtained by a *Commonwealth officer for the purposes of Chapter 2 or 3; and
(ii)
is not personal information.
Use of information
180-1(2)
A *Commonwealth officer may use the information in the course of his or her *official employment.
Disclosure to TEQSA and National VET Regulator
180-1(3)
The *Secretary may:
(a)
disclose the information to *TEQSA for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, the *TEQSA Act; and
(b)
disclose the information to the *National VET Regulator for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, the National Vocational Education and Training Regulator Act 2011.
This section does not limit use or disclosure
180-1(4)
This section does not limit the use or disclosure of the information.
Div 180 inserted by No 6 of 2012, s 3 and Sch 1 item 11, applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
SECTION 180-1
180-1
What this Division is about
This Division authorises the disclosure and use of Higher Education Support Act information for certain purposes.
History
S 180-1 substituted by No 156 of 2012, s 3 and Sch 3 item 2, applicable to information obtained or created before, on or after 18 November 2012. For former wording see note under Div 180 heading.
S 180-1 inserted by No 6 of 2012, s 3 and Sch 1 item 11, applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
SECTION 180-5
Meaning of Higher Education Support Act information
180-5(1)
Higher Education Support Act information
means:
(a)
*personal information; and
(b)
*VET personal information; and
(c)
information obtained or created by a *Commonwealth officer as a result of a survey of the kind referred to in section 180-30; and
(d)
any other information obtained or created by a Commonwealth officer for the purposes of this Act or for the purposes referred to in subsection 180-28(5).
History
S 180-5 amended by No 5 of 2023, s 3 and Sch 1 item 5, by inserting "(1)" before "
Higher
", effective 15 March 2023.
180-5(2)
However, *Australia's Economic Accelerator program information is not
Higher Education Support Act information
.
Note:
See Division 181 for *Australia's Economic Accelerator program information.
History
S 180-5(2) inserted by No 5 of 2023, s 3 and Sch 1 item 6, effective 15 March 2023.
History
S 180-5 amended by No 74 of 2016, s 3 and Sch 2 item 1, by inserting "or for the purposes referred to in subsection 180-28(5)" in para (d), effective 24 November 2016. For transitional provisions, see note under s 180-28.
S 180-5 inserted by No 156 of 2012, s 3 and Sch 3 item 2, applicable to information obtained or created before, on or after 18 November 2012.
SECTION 180-10
Disclosure and use by Commonwealth officers
180-10(1)
A *Commonwealth officer may disclose *Higher Education Support Act information to another Commonwealth officer to assist that other officer in the other officer's *official employment (within the meaning of section 179-15).
180-10(2)
A *Commonwealth officer may use *Higher Education Support Act information in the course of the officer's *official employment (within the meaning of section 179-15).
History
S 180-10 inserted by No 156 of 2012, s 3 and Sch 3 item 2, applicable to information obtained or created before, on or after 18 November 2012.
SECTION 180-15
180-15
Disclosure of information to TEQSA
The *Secretary may disclose *Higher Education Support Act information to:
(a)
*TEQSA; or
(b)
a member of the staff of TEQSA (within the meaning of the *TEQSA Act);for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, that Act.
History
S 180-15 inserted by No 156 of 2012, s 3 and Sch 3 item 2, applicable to information obtained or created before, on or after 18 November 2012.
SECTION 180-20
180-20
Disclosure of information to the National VET Regulator
The *Secretary may disclose *Higher Education Support Act information to:
(a)
the *National VET Regulator; or
(b)
a *NVETR staff member;
for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, that Act.
History
S 180-20 amended by No 168 of 2015, s 3 and Sch 1 item 25, by substituting para (b), effective 31 December 2015. Para (b) formerly read:
(b)
a member of the staff of the Regulator (within the meaning of the National Vocational Education and Training Regulator Act 2011);
S 180-20 inserted by No 156 of 2012, s 3 and Sch 3 item 2, applicable to information obtained or created before, on or after 18 November 2012.
SECTION 180-23
Disclosure of information to certain agencies
180-23(1)
The *Secretary may disclose *Higher Education Support Act information to a person who is employed or engaged by an agency covered by subsection (2) for the purposes of exercising powers, or performing functions or duties, of the agency.
180-23(2)
An agency is covered by this subsection if the agency is administered by a Minister who administers any of the following:
(a)
the Human Services (Centrelink) Act 1997;
(b)
the Social Security Act 1991;
(c)
the Student Assistance Act 1973;
(d)
a law of the Commonwealth prescribed by the Administration Guidelines for the purposes of this paragraph.
180-23(3)
If *Higher Education Support Act information is disclosed to an agency under subsection (1), the agency may use the information for the purposes of exercising powers, or performing functions or duties, of the agency.
History
S 180-23 inserted by No 103 of 2019, s 3 and Sch 3 item 12, applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
SECTION 180-25
Disclosure of information to other bodies
Disclosure
180-25(1)
The *Secretary may disclose *Higher Education Support Act information to a person referred to in subsection (3) for any of the following purposes (a
permitted purpose
):
(a)
improving the provision of higher education or vocational education and training;
(b)
research relating to the provision of higher education or vocational education and training, including research relating to:
(i)
quality assurance; or
(ii)
planning the provision of higher education or vocational education and training.
180-25(2)
However, if the information was provided by a higher education provider or a *VET provider, then the *Secretary may only disclose the information under subsection (1) to a person referred to in paragraph (3)(b), (c) or (d) if the provider consents to that disclosure.
Persons to which information may be disclosed
180-25(3)
For the purposes of subsection (1), the persons are the following:
(a)
a person (an
officer
) who is employed or engaged by a State or Territory agency;
(b)
an *officer of a higher education provider;
(c)
an *officer of a VET provider;
(d)
a person (an
officer
) who is employed or engaged by a body or association determined by the Minister under subsection (4).
180-25(4)
The Minister may, by legislative instrument, make a determination in relation to a body or association for the purposes of paragraph (3)(d).
Use of the information
180-25(5)
A person commits an offence if:
(a)
the person uses information for a purpose; and
(b)
the purpose is not a permitted purpose; and
(c)
the information is *personal information or *VET personal information; and
(d)
the information was disclosed under subsection (1) to the person or another person when the person or other person was an officer of a body referred to in subsection (3); and
(e)
theinformation was not obtained or created by an *officer for the purposes of Part 2-2A or 2-3.
Penalty: Imprisonment for 2 years.
History
S 180-25(5) amended by No 74 of 2016, s 3 and Sch 1 item 10, by inserting "2-2A or" in para (e), effective 1 January 2017.
Further disclosure of the information
180-25(6)
A person commits an offence if:
(a)
the person discloses information; and
(b)
the information is *personal information or *VET personal information; and
(c)
the information was disclosed under subsection (1) to the person or another person when the person or other person was an officer of a body referred to in subsection (3); and
(d)
either or both of the following apply:
(i)
the disclosure is not for a permitted purpose;
(ii)
the disclosure is to a person who is not an officer of that body; and
(e)
the information was not obtained or created by an *officer for the purposes of Part 2-2A or 2-3.
Penalty: Imprisonment for 2 years.
History
S 180-25(6) amended by No 74 of 2016, s 3 and Sch 1 item 10, by inserting "2-2A or" in para (e), effective 1 January 2017.
History
S 180-25 inserted by No 156 of 2012, s 3 and Sch 3 item 2, applicable to information obtained or created before, on or after 18 November 2012.
SECTION 180-28
Disclosure and use of information for the HELP program
Disclosure of information
180-28(1)
A *HELP program Commonwealth officer may disclose *Higher Education Support Act information (other than a person's *tax file number) to another HELP program Commonwealth officer for the purposes referred to in subsection (5).
180-28(2)
The *Secretary may disclose a person's *tax file number to the *Commissioner for the purposes referred to in subsection (5).
Use of information
180-28(3)
A *HELP program Commonwealth officer may use *Higher Education Support Act information (other than a person's *tax file number) for the purposes referred to in subsection (5).
180-28(4)
If a person's *tax file number is disclosed under subsection (2), the *Commissioner may use that tax file number for the purposes referred to in subsection (5).
Purposes of disclosure or use
180-28(5)
The purposes are to assist in the development of the *HELP program, or the administration or future administration of the HELP program, including by:
(a)
policy formation; and
(b)
financial planning and projection; and
(c)
program design; and
(d)
conducting research.
Definitions
180-28(6)
The
HELP program
means the program consisting of:
(a)
grants to higher education providers under Part 2-2; and
(b)
assistance provided to students under Chapter 3 or Schedule 1A or the VET Student Loans Act 2016; and
(c)
repayment of debts under Chapter 4, or under the VET Student Loans Act 2016, incurred in relation to that assistance.
History
S 180-28(6) amended by No 116 of 2018, s 3 and Sch 1 item 10, by inserting ", or under the VET Student Loans Act 2016," in para (c), effective 1 July 2019.
S 180-28(6) amended by No 100 of 2016, s 3 and Sch 1 item 24, by inserting "or the VET Student Loans Act 2016", effective 1 January 2017. For transitional provision, see note under s 137-19.
180-28(7)
HELP program Commonwealth officer
means:
(a)
the *Secretary; or
(b)
the *Commissioner; or
(c)
a *Commonwealth officer specified to be a HELP program Commonwealth officer under subsection (8).
180-28(8)
The Minister may, by legislative instrument, specify that a *Commonwealth officer, or a Commonwealth officer in a specified class, is a *HELP program Commonwealth officer for the purposes of paragraph (7)(c).
180-28(9)
For the purposes of this section, *Higher Education Support Act information includes VET information (within the meaning of the VET Student Loans Act 2016).
History
S 180-28(9) inserted by No 100 of 2016, s 3 and Sch 1 item 25, effective 1 January 2017. For transitional provision, see note under s 137-19.
History
S 180-28 inserted by No 74 of 2016, s 3 and Sch 2 item 2, effective 24 November 2016. No 74 of 2016, s 3 and Sch 2 items 21-23 contain the following transitional provisions:
21 Transitional provision - tax file numbers of students of VET courses
(1)
This item applies in relation to a student who met the tax file number requirements for assistance under Part 2 of Schedule 1A to the Higher Education Support Act 2003 in relation to a VET course of study.
(2)
The Secretary may require the Commissioner to provide a Commonwealth officer with the student's tax file number for the purposes of:
(a)
Division 5A of Part 1, or Part 2, of Schedule 1A to that Act; or
(b)
Chapter 4 of that Act, to the extent that it relates to Schedule 1A to that Act.
Note:
When obtained by the Commonwealth officer, the student's tax file number becomes VET personal information (see clause 72 of Schedule 1A to that Act).
(3)
The Commissioner has the general administration of this item.
Note:
One effect of this is that this item is a taxation law for the purposes of the Taxation Administration Act 1953.
(4)
Despite subsection
13.3(3) of the
Criminal Code, in a prosecution for an offence against an Act of which the Commissioner has the general administration, the defendant does not bear an evidential burden in relation to whether this item applies to a communication of VET personal information.
22 Transitional provision - tax file numbers of students of higher education courses
(1)
This item applies in relation to a student who, immediately before the commencement of Schedule 3 to the
Education Legislation Amendment (Overseas Debt Recovery) Act 2015, met the tax file number requirements for assistance under Chapter
3 of the
Higher Education Support Act 2003 in relation to a course of study.
(2)
The Secretary may require the Commissioner to provide a Commonwealth officer with the student's tax file number for the purposes of Chapter
2, or Chapters
3 and
4, of the
Higher Education Support Act 2003.
Note:
When obtained by the Commonwealth officer, the student's tax file number becomes personal information (see section 179-5 of that Act).
(3)
The Commissioner has the general administration of this item.
Note:
One effect of this is that this item is a taxation law for the purposes of the Taxation Administration Act 1953.
(4)
Despite subsection
13.3(3) of the
Criminal Code, in a prosecution for an offence against an Act of which the Commissioner has the general administration, the defendant does not bear an evidential burden in relation to whether this item applies to a communication of personal information.
23 Delegation
(1)
The Secretary may, in writing, delegate to an APS employee all or any of the powers of the Secretary under item 21 or 22.
(2)
In exercising powers under the delegation, the delegate must comply with any directions of the Secretary.
SECTION 180-30
180-30
Use of information to conduct surveys
A *Commonwealth officer may use *Higher Education Support Act information in order to conduct a survey of staff, students or former students of higher education providers or *VET providers for any of the following purposes:
(a)
improving the provision of higher education or vocational education and training;
(b)
research relating to the provision of higher education or vocational education and training, including research relating to:
(i)
quality assurance; or
(ii)
planning the provision of higher education or vocational education and training.
History
S 180-30 inserted by No 156 of 2012, s 3 and Sch 3 item 2, applicable to information obtained or created before, on or after 18 November 2012.
SECTION 180-35
180-35
This Division does not limit disclosure or use of information
This Division does not limit the disclosure or use of *Higher Education Support Act information.
Note:
The disclosure or use of Higher Education Support Act information may also be authorised in other circumstances. For example, see Division 179, Division 14 of Schedule 1A and the Privacy Act 1988.
History
S 180-35 inserted by No 156 of 2012, s 3 and Sch 3 item 2, applicable to information obtained or created before, on or after 18 November 2012.
Division 181 - Protection, disclosure and use of Australia's Economic Accelerator program information
History
Div 181 inserted by No 5 of 2023, s 3 and Sch 1 item 7, effective 15 March 2023.
SECTION 181-1
181-1
What this Division is about
An officer who discloses, copies or records information obtained or created by the officer for the purposes of the Australia's Economic Accelerator program, other than in the course of official employment, commits an offence if the information is personal information, or the officer's actions are likely to cause competitive detriment to a person or found an action for breach of confidence. This is the case unless an exception in this Division applies.
History
S 181-1 inserted by No 5 of 2023, s 3 and Sch 1 item 7, effective 15 March 2023.
SECTION 181-5
181-5
Object of this Division
The object of this Division is to give recipients and potential recipients of grants under the *Australia's Economic Accelerator program, and their industry partners, confidence that personal information and other sensitive information they provide in relation to the program will be dealt with appropriately.
History
S 181-5 inserted by No 5 of 2023, s 3 and Sch 1 item 7, effective 15 March 2023.
SECTION 181-10
181-10
Meaning of Australia's Economic Accelerator program information
Australia's Economic Accelerator program
information is any information that was obtained or created by an *officer for the purposes of the *Australia's Economic Accelerator program.
History
S 181-10 inserted by No 5 of 2023, s 3 and Sch 1 item 7, effective 15 March 2023.
SECTION 181-15
Use of Australia's Economic Accelerator program information
Offence
181-15(1)
An *officer commits an offence if:
(a)
the officer:
(i)
discloses information; or
(ii)
makes a copy or other record of information; and
(b)
the information is *Australia's Economic Accelerator program information that was obtained or created by the officer in the course of the officer's *official employment; and
(c)
the disclosure did not occur, or the copy or record was not made, in the course of that official employment; and
(d)
any of the following circumstances exist:
(i)
the information is personal information within the meaning of the Privacy Act 1988;
(ii)
the disclosure, or the making of the copy or record, causes or is likely to cause competitive detriment to a person;
(iii)
the disclosure, or the making of the copy or record, founds or is likely to found an action by a person (other than the Commonwealth) for breach of a duty of confidence.
Penalty: Imprisonment for 2 years.
Exception - consent
181-15(2)
Subsection (1) does not apply if the person to whom the information relates has consented to the disclosure, or the making of the copy or record.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
Exception - authorised by this Division
181-15(3)
Subsection (1) does not apply if the disclosure, or the making of the copy or record, is authorised by this Division.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Exception - required by a Commonwealth law
181-15(4)
Subsection (1) does not apply if the disclosure, or the making of the copy or record, is required by a law of the Commonwealth.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 181-15 inserted by No 5 of 2023, s 3 and Sch 1 item 7, effective 15 March 2023.
SECTION 181-20
181-20
Disclosure of Australia's Economic Accelerator program information to Minister and staff
A *Commonwealth officer may disclose *Australia's Economic Accelerator program information to:
(a)
the Minister; or
(b)
a person employed by the Minister under the Members of Parliament (Staff) Act 1984.
History
S 181-20 amended by No 71 of 2023, s 3 and Sch 4 item 11, by substituting "by the Minister under the Members of Parliament (Staff) Act 1984" for "under section 13 or 20 of the Members of Parliament (Staff) Act 1984 as a member of staff of the Minister" in para (b), effective 17 October 2023.
S 181-20 inserted by No 5 of 2023, s 3 and Sch 1 item 7, effective 15 March 2023.
SECTION 181-25
Disclosure of Australia's Economic Accelerator program information by Minister
181-25(1)
The Minister may make *Australia's Economic Accelerator program information publicly available, if the information:
(a)
relates to programs of research in respect of which grants have been approved for the purposes of item 14 of the table in subsection 41-10(1); and
(b)
is any of the following:
(i)
the name of a researcher;
(ii)
a description of the field of research;
(iii)
the amount of a grant;
(iv)
other information of a general nature.
181-25(2)
Despite subsection (1), the Minister must not disclose the information if a person demonstrates to the Minister that:
(a)
release of the information would cause competitive detriment to the person; and
(b)
the information is not in the public domain; and
(c)
the information is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and
(d)
the information is not readily discoverable.
History
S 181-25 inserted by No 5 of 2023, s 3 and Sch 1 item 7, effective 15 March 2023.
Division 182 - Other rules about information
History
Div 182 inserted by No 23 of 2013, s 3 and Sch 5 item 3, effective 29 March 2013.
SECTION 182-1
Minister may seek information from TEQSA and relevant VET regulator
182-1(1)
The Minister may seek information relating to a higher education provider from *TEQSA or the *relevant VET regulator (or both) for the purposes of administering, or enforcing compliance with, one or more of the following:
(a)
this Act and the regulations;
(b)
the Guidelines made under section 238-10 that apply to the provider;
(c)
a condition imposed on the provider's approval as a higher education provider.
182-1(2)
The Minister may seek information relating to a *VET provider from *TEQSA or the *relevant VET regulator (or both) for the purposes of administering, or enforcing compliance with, one or more of the following:
(a)
this Act and the regulations;
(b)
*VET Guidelines that apply to the provider;
(c)
a condition imposed on the provider's approval as a VET provider.
History
S 182-1 inserted by No 23 of 2013, s 3 and Sch 5 item 3, applicable in relation to a higher education provider or a VET provider: (a) whether the provider is approved before, on or after 29 March 2013; and (b) whether the information relates to an act or omission by the provider, or an event, that occurs before, on or after 29 March 2013. However, this section only applies in relation to a condition of an approval of a higher education provider or a VET provider if the condition is imposed on or after 29 March 2013.
PART 5-5 - TAX FILE NUMBERS
Division 184 - Introduction
SECTION 184-1
What this Part is about
Requirements relating to students' tax file numbers apply to assistance under Chapter 3 that gives rise to HELP debts.
The Commissioner may notify higher education providers, the Secretary, or where appropriate Open Universities Australia, of matters relating to tax file numbers.
Higher education providers, and where appropriate Open Universities Australia, have obligations relating to notifying students about tax file number requirements.
Higher education providers have obligations relating to cancelling the enrolment of students who do not have tax file numbers.
Note:
Part VA of the Income Tax Assessment Act 1936 provides for issuing, cancelling or altering tax file numbers.
History
S 184-1 amended by No 74 of 2016, s 3 and Sch 2 item 3, by substituting "The Commissioner may notify higher education providers, the Secretary, or where appropriate Open Universities Australia, of matters relating to tax file numbers." for "The Commissioner may notify higher education providers, or where appropriate Open Universities Australia, of matters relating to tax file numbers.", effective 24 November 2016. For transitional provisions, see note under s 180-28.
Division 187 - What are the tax file number requirements for
assistance under Chapter 3?
SECTION 187-1
Meeting the tax file number requirements
Assistance other than SA-HELP assistance
187-1(1)
A student who is enrolled, or proposes to enrol, with a higher education provider in a unit of study access to which was not provided by *Open Universities Australia, or in an *accelerator program course,
meets the tax file number requirements
for assistance under Chapter 3, except *SA-HELP assistance, if:
(a)
the student notifies his or her *tax file number to:
(i)
an *appropriate officer of the provider; and
(ii)
the *Secretary;
and the provider is satisfied (in accordance with subsection (4)) that this number is a valid tax file number; or
(b)
the student gives to the officer 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.
History
S 187-1(1) amended by No 36 of 2023, s 3 and Sch 1 item 48, by inserting "or in an *accelerator program course,", effective 29 June 2023.
S 187-1(1) amended by No 154 of 2015, s 3 and Sch 3 item 1, by substituting para (a), effective 1 January 2016. No 154 of 2015, s 3 and Sch 3 item 23 contains the following transitional provision:
23 Transitional provision
23
The amendments made by this Schedule to Division 187 of the Higher Education Support Act 2003 do not apply in relation to a student and a course of study if, immediately before the commencement of this item, the student met the tax file number requirements, as set out in that Division, in relation to the course of study.
Para (a) formerly read:
(a)
the student notifies his or her *tax file number to an *appropriate officer of the provider, and the provider is satisfied (in accordance with subsection (4)) that this number is a valid tax file number; or
S 187-1(1) amended by No 130 of 2011, s 3 and Sch 1 item 28, by inserting ", except *SA-HELP assistance,", effective 1 January 2012.
187-1(1AA)
Compliance by a person with subsection (1) in relation to a *course of study, or an *accelerator program course, is to be ignored in determining whether there has been compliance by the person with subsection (1) in relation to any other course of study or accelerator program course.
History
S 187-1(1AA) substituted by No 36 of 2023, s 3 and Sch 1 item 49, effective 29 June 2023. S 187-1(1AA) formerly read:
187-1(1AA)
Compliance by a person with subsection (1) in relation to a *course of study is to be ignored in determining whether there has been compliance by the person with subsection (1) in relation to any other course of study.
187-1(1A)
A student who accesses, or proposes to access, a unit of study through *Open Universities Australia, meets the tax file number requirements for assistance under Chapter 3, except *SA-HELP assistance, if:
(a)
the student notifies his or her *tax file number to:
(i)
an *appropriate officer of Open Universities Australia; and
(ii)
the *Secretary;
and Open Universities Australia is satisfied (in accordance with subsection (4)) that this number is a valid tax file number; or
(b)
the student gives to the officer 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.
History
S 187-1(1A) amended by No 154 of 2015, s 3 and Sch 3 item 2, by substituting para (a), effective 1 January 2016. For transitional provision, see note under s 187-1(1). Para (a) formerly read:
(a)
the student notifies his or her *tax file number to an *appropriate officer of Open Universities Australia, and Open Universities Australia is satisfied (in accordance with subsection (4)) that this number is a valid tax file number; or
S 187-1(1A) amended by No 130 of 2011, s 3 and Sch 1 item 28, by inserting ", except *SA-HELP assistance,", effective 1 January 2012.
187-1(2)
If the student is seeking *HECS-HELP assistance or *FEE-HELP assistance for a unit of study, he or she does not meet the tax file number requirements for the assistance unless he or she complies with subsection (1) or (1A) (as the case requires) on or before the *census date for the unit.
187-1(2A)
If the student is seeking *STARTUP-HELP assistance for an *accelerator program course, the student does not meet the tax file number requirements for the assistance unless the student complies with subsection (1) on or before the *census date for the accelerator program course.
History
S 187-1(2A) inserted by No 36 of 2023, s 3 and Sch 1 item 50, effective 29 June 2023.
187-1(3)
A notification under paragraph (1)(a), from a student enrolled or proposing to enrol in a unit of study, may be included in a *request for Commonwealth assistance, except a request for Commonwealth assistance relating to a *student services and amenities fee, that the student has given to the provider in relation to:
(a)
the unit of study for which the assistance is sought; or
(b)
the *course of study of which the unit forms a part; or
(c)
any other unit of study forming part of that course.
History
S 187-1(3) amended by No 36 of 2023, s 3 and Sch 1 item 51, by inserting ", from a student enrolled or proposing to enrol in a unit of study,", effective 29 June 2023.
S 187-1(3) amended by No 130 of 2011, s 3 and Sch 1 item 29, by inserting ", except a request for Commonwealth assistance relating to a *student services and amenities fee,", effective 1 January 2012.
187-1(3AA)
A notification under paragraph (1)(a), from a student enrolled or proposing to enrol in an *accelerator program course, may be included in a *request for Commonwealth assistance, except a request for Commonwealth assistance relating to a *student services and amenities fee, that the student has given to the provider in relation to the accelerator program course.
History
S 187-1(3AA) inserted by No 36 of 2023, s 3 and Sch 1 item 52, effective 29 June 2023.
187-1(3A)
A notification under paragraph (1A)(a) may be included in a *request for Commonwealth assistance that the student has given to *Open Universities Australia in relation to the unit of study for which the assistance is sought.
SA-HELP assistance
187-1(3B)
A student who is enrolled, or proposes to enrol, with a higher education provider in a *course of study or *bridging course for overseas-trained professionals, or in an *accelerator program course,
meets the tax file number requirements
for *SA-HELP assistance if:
(a)
the student notifies his or her *tax file number to:
(i)
an *appropriate officer of the provider; and
(ii)
the *Secretary;
and the provider is satisfied (in accordance with subsection (4)) that this number is a valid tax file number; or
(b)
the student gives to the officer 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.
History
S 187-1(3B) amended by No 36 of 2023, s 3 and Sch 1 item 53, by inserting ", or in an *accelerator program course,", effective 29 June 2023.
S 187-1(3B) amended by No 154 of 2015, s 3 and Sch 3 item 3, by substituting para (a), effective 1 January 2016. For transitional provision, see note under s 187-1(1). Para (a) formerly read:
(a)
the student notifies his or her *tax file number to an *appropriate officer of the provider, and the provider is satisfied (in accordance with subsection (4)) that this number is a valid tax file number; or
S 187-1(3B) inserted by No 130 of 2011, s 3 and Sch 1 item 30, effective 1 January 2012.
187-1(3C)
Compliance by a person with subsection (3B) in relation to the person's actual or proposed enrolment in a *course of study or *bridging course for overseas-trained professionals, or an *accelerator program course, is to be ignored in determining whether there has been compliance by the person with subsection (3B) in relation to the person's actual or proposed enrolment in another such course or bridging course or accelerator program course.
History
S 187-1(3C) substituted by No 36 of 2023, s 3 and Sch 1 item 54, effective 29 June 2023. S 187-1(3C) formerly read:
187-1(3C)
Compliance by a person with subsection (3B) in relation to the person's actual or proposed enrolment in a *course of study or *bridging course for overseas-trained professionals is to be ignored in determining whether there has been compliance by the person with subsection (3B) in relation to the person's actual or proposed enrolment in another such course or bridging course.
S 187-1(3C) inserted by No 130 of 2011, s 3 and Sch 1 item 30, effective 1 January 2012.
187-1(3D)
If the student is seeking *SA-HELP assistance for a *student services and amenities fee, he or she does not meet the tax file number requirements for the assistance unless he or she complies with subsection (3B) on or before the day the fee is payable.
History
S 187-1(3D) inserted by No 130 of 2011, s 3 and Sch 1 item 30, effective 1 January 2012.
187-1(3E)
A notification under paragraph (3B)(a) may be included in any *request for Commonwealth assistance relating to a *student services and amenities fee imposed on the student in connection with his or her enrolment in the *course of study or *bridging course for overseas-trained professionals, or in the *accelerator program course.
History
S 187-1(3E) amended by No 36 of 2023, s 3 and Sch 1 item 55, by inserting ", or in the *accelerator program course", effective 29 June 2023.
S 187-1(3E) inserted by No 130 of 2011, s 3 and Sch 1 item 30, effective 1 January 2012.
Commissioner's role
187-1(4)
The *Commissioner may issue guidelines about the circumstances in which:
(a)
a higher education provider is to be, or is not to be, satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(a) or (3B)(a); and
(b)
*Open Universities Australia is to be, or is not to be, satisfied that a number is a valid tax file number for the purposes of paragraph (1A)(a).
History
S 187-1(4) amended by No 130 of 2011, s 3 and Sch 1 item 31, by inserting "or (3B)(a)" in para (a), effective 1 January 2012. No 130 of 2011, s 3 and Sch 1 item 32 contains the following transitional provision:
Transitional - guidelines issued under subsection 187-1(4) of the
Higher Education Support Act 2003
(1)
Guidelines in force under subsection 187-1(4) of the Higher Education Support Act 2003 immediately before the commencement of the amendment of that subsection by this Schedule have effect after that commencement as if they had been issued under that subsection as amended by this Schedule.
(2)
Subitem (1) does not prevent the repeal or amendment of the guidelines.
187-1(5)
A certificate under paragraph (1)(b) or (3B)(b) must be in the *approved form.
History
S 187-1(5) amended by No 6 of 2012, s 3 and Sch 2 item 6, by substituting "the *approved form" for "a form approved by the *Commissioner", effective 7 March 2012.
S 187-1(5) amended by No 130 of 2011, s 3 and Sch 1 item 33, by inserting "or (3B)(b)", effective 1 January 2012.
187-1(6)
A certificate under paragraph (1A)(b) must be in the *approved form.
History
S 187-1(6) amended by No 6 of 2012, s 3 and Sch 2 item 6, by substituting "the *approved form" for "a form approved by the *Commissioner", effective 7 March 2012.
Commissioner's guidelines are legislative instruments
187-1(7)
A guideline issued under subsection (4) is a legislative instrument.
History
S 187-1(7) amended by No 126 of 2015, s 3 and Sch 1 item 277, by omitting "for the purposes of the Legislative Instruments Act 2003", effective 5 March 2016.
SECTION 187-2
Who is an appropriate officer?
187-2(1)
An
appropriate officer
of a higher education provider,
means a person, or a person included in a class of persons, whom:
(a)
the chief executive officer of the provider; or
(b)
a delegate of the chief executive
officer of the provider;
has appointed
to be an appropriate officer of the provider for the purposes of this Act.
187-2(2)
An
appropriate officer
of *Open Universities Australia,
means a person, or a person included in a class of persons, whom:
(a)
the chief executive officer of Open Universities Australia; or
(b)
a delegate of the chief
executive officer of Open Universities Australia;
has appointed to be an appropriate officer of Open Universities
Australia for the purposes of this Act.
SECTION 187-5
Student to notify tax file number when issued
187-5(1)
If a student *meets the tax file number requirements for the assistance under paragraph 187-1(1)(b):
(a)
the student must notify his or her *tax file number to:
(i)
an *appropriate officer of the higher education provider; and
(ii)
the *Secretary;
within 21 days from the day on which the *Commissioner issues the tax file number to the student; and
(b)
the provider must be satisfied (in accordance with subsection 187-1(4)) that this number is a valid *tax file number.
History
S 187-5(1) amended by No 74 of 2016, s 3 and Sch 2 item 4, by substituting "must notify" for "notifies" in para (a), effective 24 November 2016. For transitional provisions, see note under s 180-28.
S 187-5(1) amended by No 154 of 2015, s 3 and Sch 3 item 4, by substituting para (a), effective 1 January 2016. For transitional provision, see note under s 187-1(1). Para (a) formerly read:
(a)
the student must notify his or 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
187-5(2)
If a student *meets the tax file number requirements for assistance under paragraph 187-1(1A)(b):
(a)
the student must notify his or her *tax file number to:
(i)
an *appropriate officer of *Open Universities Australia; and
(ii)
the *Secretary;
within 21 days from the day on which the *Commissioner issues the tax file number to the student; and
(b)
Open Universities Australia must be satisfied (in accordance with subsection 187-1(4)) that this number is a valid *tax file number.
History
S 187-5(2) amended by No 74 of 2016, s 3 and Sch 2 item 4, by substituting "must notify" for "notifies" in para (a), effective 24 November 2016. For transitional provisions, see note under s 180-28.
S 187-5(2) amended by No 154 of 2015, s 3 and Sch 3 item 5, by substituting para (a), effective 1 January 2016. For transitional provision, see note under s 187-1(1). Para (a) formerly read:
(a)
the student must notify his or her *tax file number to an *appropriate officer of *Open Universities Australia within 21 days from the day on which the *Commissioner issues the tax file number to the student; and
Division 190 - Who can the Commissioner notify of tax file number matters?
History
Div 190 heading substituted by No 154 of 2015, s 3 and Sch 3 item 6, effective 1 January 2016. The heading formerly read:
Division 190 - In what circumstances can higher education providers and Open Universities Australia be notified of tax file number matters?
SECTION 190-1
When tax file numbers are issued etc.
190-1(1)
The *Commissioner may give to a higher education provider, and to the *Secretary, written notice of the *tax file number of a student who is enrolled in a *course of study, or an *accelerator program course, with the provider if the Commissioner:
(a)
issues the tax file number to the student; or
(b)
refuses to issue a tax file number to the student on the ground that the student already has a tax file number.
History
S 190-1(1) amended by No 36 of 2023, s 3 and Sch 1 item 56, by inserting ", or an *accelerator program course,", effective 29 June 2023.
S 190-1(1) amended by No 154 of 2015, s 3 and Sch 3 item 7, by inserting ", and to the *Secretary,", effective 1 January 2016.
190-1(2)
The *Commissioner may give to *Open Universities Australia, and to the *Secretary, written notice of the *tax file number of a student to whom Open Universities Australia provides access to a unit of study if the Commissioner:
(a)
issues the tax file number to the student; or
(b)
refuses to issue a tax file number to the student on the ground that the student already has a tax file number.
History
S 190-1(2) amended by No 154 of 2015, s 3 and Sch 3 item 7, by inserting ", and to the *Secretary,", effective 1 January 2016.
SECTION 190-5
When tax file numbers are altered
190-5(1)
The *Commissioner may give to a higher education provider, and to the *Secretary, written notice of the *tax file number of a student who is enrolled in a *course of study, or an *accelerator program course, with the provider if the Commissioner issues a new tax file number to the student in place of a tax file number that has been withdrawn.
History
S 190-5(1) amended by No 36 of 2023, s 3 and Sch 1 item 56, by inserting ", or an *accelerator program course,", effective 29 June 2023.
S 190-5(1) amended by No 154 of 2015, s 3 and Sch 3 item 7, by inserting ", and to the *Secretary,", effective 1 January 2016.
190-5(2)
That new number is taken to be the number that the student notified to the provider and to the *Secretary.
History
S 190-5(2) amended by No 154 of 2015, s 3 and Sch 3 item 8, by inserting "and to the *Secretary", effective 1 January 2016.
190-5(3)
The *Commissioner may give to *Open Universities Australia, and to the *Secretary, written notice of the *tax file number of a student to whom Open Universities Australia provides access to a unit of study if the Commissioner issues a new tax file number to the student in place of a tax file number that has been withdrawn.
History
S 190-5(3) amended by No 154 of 2015, s 3 and Sch 3 item 9, by inserting ", and to the *Secretary,", effective 1 January 2016.
190-5(4)
That new number is taken to be the number that the student notified to *Open Universities Australia and to the *Secretary.
History
S 190-5(4) amended by No 154 of 2015, s 3 and Sch 3 item 10, by inserting "and to the *Secretary", effective 1 January 2016.
SECTION 190-10
When tax file numbers are incorrectly notified - students with tax file numbers
190-10(1)
If the *Commissioner is satisfied:
(a)
that the *tax file number that a student has notified to a higher education provider or the *Secretary (or both):
(i)
has been cancelled or withdrawn since the notification was given; or
(ii)
is otherwise wrong; and
(b)
that the student has a tax file number;
the Commissioner may give to the provider and the Secretary written notice of the incorrect notification and of the student's tax file number.
History
S 190-10(1) amended by No 154 of 2015, s 3 and Sch 3 items 11 and 12, by inserting "or the *Secretary (or both)" in para (a) and "and the Secretary", effective 1 January 2016.
190-10(2)
That number is taken to be the number that the student notified to the provider and to the *Secretary.
History
S 190-10(2) amended by No 154 of 2015, s 3 and Sch 3 item 13, by inserting "and to the *Secretary", effective 1 January 2016.
190-10(3)
If the *Commissioner is satisfied:
(a)
that the *tax file number that a student has notified to *Open Universities Australia or the *Secretary (or both):
(i)
has been cancelled or withdrawn since the notification was given; or
(ii)
is otherwise wrong; and
(b)
that the student has a tax file number;
the Commissioner may give to Open Universities Australia and the Secretary written notice of the incorrect notification and of the student's tax file number.
History
S 190-10(3) amended by No 154 of 2015, s 3 and Sch 3 items 14 and 15, by inserting "or the *Secretary (or both)" in para (a) and "and the Secretary", effective 1 January 2016.
190-10(4)
That number is taken to be the number that the student notified to *Open Universities Australia and to the *Secretary.
History
S 190-10(4) amended by No 154 of 2015, s 3 and Sch 3 item 16, by inserting "and to the *Secretary", effective 1 January 2016.
SECTION 190-15
When tax file numbers are incorrectly notified - students without tax file numbers
190-15(1)
If:
(a)
the *Commissioner is satisfied that the *tax file number that a student notified to a higher education provider or the *Secretary (or both):
(i)
has been cancelled since the notification was given; or
(ii)
is for any other reason not the student's tax file number; and
(b)
the Commissioner is not satisfied that the student has a tax file number;
the Commissioner may give to the provider and the Secretary a written notice informing the provider and the Secretary accordingly.
History
S 190-15(1) amended by No 154 of 2015, s 3 and Sch 3 items 17 and 18, by inserting "or the *Secretary (or both)" in para (a) and substituting "and the Secretary a written notice informing the provider and the Secretary" for "a written notice informing the provider", effective 1 January 2016.
190-15(1A)
If:
(a)
the *Commissioner is satisfied that the *tax file number that a student notified to *Open Universities Australia or the *Secretary (or both):
(i)
has been cancelled since the notification was given; or
(ii)
is for any other reason not the student's tax file number; and
(b)
the Commissioner is not satisfied that the student has a tax file number;
the Commissioner may give Open Universities Australia and the Secretary a written notice informing Open Universities Australia and the Secretary accordingly.
History
S 190-15(1A) amended by No 154 of 2015, s 3 and Sch 3 items 19 and 20, by inserting "or the *Secretary (or both)" in para (a) and substituting "and the Secretary a written notice informing Open Universities Australia and the Secretary" for "a written notice informing Open Universities Australia", effective 1 January 2016.
190-15(2)
The *Commissioner must give a copy of any notice under subsection (1) or (1A) to the student concerned, together with a written statement of the reasons for the decision to give the notice.
Note:
Decisions to give notice under subsection (1) or (1A) are reviewable under section 202F of the Income Tax Assessment Act 1936.
SECTION 190-20
When applications are refused or tax file numbers are cancelled
190-20(1)
If the *Commissioner:
(a)
refuses a student's application for the issue of a *tax file number; or
(b)
cancels a tax file number issued to a student;
the Commissioner may give to a higher education provider with which the student is enrolled in a *course of study, or an *accelerator program course, and to the *Secretary, a written notice informing the provider and the Secretary accordingly.
History
S 190-20(1) amended by No 36 of 2023, s 3 and Sch 1 item 57, by inserting "or an *accelerator program course,", effective 29 June 2023.
S 190-20(1) amended by No 154 of 2015, s 3 and Sch 3 item 21, by substituting ", and to the *Secretary, a written notice informing the provider and the Secretary" for "a written notice informing the provider", effective 1 January 2016.
190-20(1A)
If the *Commissioner:
(a)
refuses a student's application for the issue of a *tax file number; or
(b)
cancels a tax file number issued to a student;
the Commissioner may, if access to a unit of study is provided to the student by *Open Universities Australia, give to Open Universities Australia, and to the *Secretary, a written notice informing Open Universities Australia and the Secretary accordingly.
History
S 190-20(1A) amended by No 154 of 2015, s 3 and Sch 3 item 22, by substituting ", and to the *Secretary, a written notice informing Open Universities Australia and the Secretary" for "written notice informing Open Universities Australia", effective 1 January 2016.
190-20(2)
The *Commissioner must give a copy of any notice under subsection (1) or (1A) to the student concerned, together with a written statement of the reasons for the decision to give the notice.
Note:
Decisions to give notice under subsection (1) or (1A) are reviewable under section 202F of the Income Tax Assessment Act 1936.
Division 193 - What are the requirements on higher education providers and Open Universities Australia relating to tax file numbers?
SECTION 193-1
Giving information about tax file number requirements
Requests for HECS-HELP assistance or FEE-HELP assistance - requirements on higher education providers
193-1(1)
A higher education provider must notify a person in writing how to *meet the tax file number requirements if:
(a)
the person is enrolled in a unit of study with the provider; and
(b)
the person has, on or before the *census date for the unit, completed, signed and given to the *appropriate officer of the provider a *request for Commonwealth assistance in relation to the unit or, where the *course of study of which the unit forms a part is undertaken with the provider, in relation to the course of study.
(c)
in that request, the person requests *HECS-HELP assistance or *FEE-HELP assistance for the unit or the course; and
(d)
the request does not include a number that purports to be the person's *tax file number.
193-1(2)
The provider must notify the person under subsection (1):
(a)
on or before the *census date for the unit; or
(b)
within 7 days after the person gives the provider the *request for Commonwealth assistance;
whichever is earlier.
Requests for FEE-HELP assistance - requirements on Open Universities Australia
193-1(2A)
*Open Universities Australia must notify a person in writing how to *meet the tax file number requirements if:
(a)
Open Universities Australia provides access to a unit of study to the person; and
(b)
the person has, on or before the *census date for the unit, completed, signed and given to an *appropriate officer of Open Universities Australia a *request for Commonwealth assistance in relation to the unit; and
(c)
in that request, the person requests *FEE-HELP assistance for the unit; and
(d)
the request does not include a number that purports to be the person's *tax file number.
193-1(2B)
*Open Universities Australia must notify the person under subsection (2A):
(a)
on or before the *census date for the unit; or
(b)
within 7 days after the person gives Open Universities Australia the *request for Commonwealth assistance;
whichever is earlier.
193-1(2C)
A
request for Commonwealth assistance
, in relation to a person to whom *Open Universities Australia provides access to a unit of study, means a document:
(a)
in which the person requests the Commonwealth to provide assistance under this Act in relation to the unit; and
(b)
that is in the form approved by the Minister.
Requests for OS-HELP assistance
193-1(3)
A higher education provider must notify a person in writing how to *meet the tax file number requirements if:
(a)
the person is enrolled in a *course of study with the provider; and
(b)
the person has, before receiving *OS-HELP assistance, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance; and
(c)
in that request, the person requests OS-HELP assistance in relation to a period of 6 months; and
(d)
the request does not include a number that purports to be the person's *tax file number.
193-1(4)
The provider must notify the person under subsection (3) within 7 days after the person gives the provider the *request for Commonwealth assistance.
Requests for SA-HELP assistance
193-1(4A)
A higher education provider must notify a person in writing how to *meet the tax file number requirements if:
(a)
the person is enrolled with the provider in a *course of study or *bridging course for overseas-trained professionals, or an *accelerator program course; and
(b)
the provider has imposed a *student services and amenities fee on the person; and
(c)
the person has, on or before the day on which the fee is payable, completed, signed and given to the *appropriate officer of the provider a *request for Commonwealth assistance in relation to a student services and amenities fee imposed on the person for a period during which he or she is enrolled in the course or courses concerned; and
(d)
in that request, the person requests *SA-HELP assistance for the student services and amenities fee; and
(e)
the request does not include a number that purports to be the person's *tax file number.
History
S 193-1(4A) amended by No 36 of 2023, s 3 and Sch 1 items 58 and 59, by inserting ", or an *accelerator program course" in para (a) and substituting "course or courses concerned" for "course or bridging course" in para (c), effective 29 June 2023.
S 193-1(4A) inserted by No 130 of 2011, s 3 and Sch 1 item 34, effective 1 January 2012.
193-1(4B)
The provider must notify the person under subsection (4A):
(a)
on or before the day the *student services and amenities fee is payable; or
(b)
within 7 days after the person gives the provider the *request for Commonwealth assistance;
whichever is earlier.
History
S 193-1(4B) inserted by No 130 of 2011, s 3 and Sch 1 item 34, effective 1 January 2012.
Requests for STARTUP-HELP assistance
193-1(4C)
A higher education provider must notify a person in writing how to *meet the tax file number requirements if:
(a)
the person is enrolled in an *accelerator program course with the provider; and
(b)
the person has, on or before the *census date for the accelerator program course, completed, signed and given to the *appropriate officer of the provider a *request for Commonwealth assistance in relation to the course; and
(c)
in that request, the person requests *STARTUP-HELP assistance for the course; and
(d)
the request does not include a number that purports to be the person's *tax file number.
History
S 193-1(4C) inserted by No 36 of 2023, s 3 and Sch 1 item 60, effective 29 June 2023.
193-1(4D)
The provider must notify the person under subsection (4C):
(a)
on or before the *census date for the *accelerator program course; or
(b)
within 7 days after the person gives the provider the *request for Commonwealth assistance;
whichever is earlier.
History
S 193-1(4D) inserted by No 36 of 2023, s 3 and Sch 1 item 60, effective 29 June 2023.
Cases where there is no obligation to notify
193-1(5)
This section does not apply to the person if:
(a)
the person, in the *request for Commonwealth assistance, requests *HECS-HELP assistance, *FEE-HELP assistance, *OS-HELP assistance, *SA-HELP assistance or *STARTUP-HELP assistance, but the person is not entitled to the assistance; or
(b)
the person, in the request for Commonwealth assistance, requests HECS-HELP assistance in relation to a unit of study, but one or more *up-front payments for the unit have been made totalling 100% of the person's *student contribution amount for the unit.
Note:
In the circumstances set out in paragraph (5)(b), the HECS-HELP assistance would not involve any loan by the Commonwealth to the person.
History
S 193-1(5) amended by No 36 of 2023, s 3 and Sch 1 item 61, by substituting ", *SA-HELP assistance or *STARTUP-HELP assistance" for "or *SA-HELP assistance" in para (a), effective 29 June 2023.
S 193-1(5) amended by No 64 of 2022, s 3 and Sch 4 item 13, by substituting "for the unit have been made totalling 100%" for "in relation to the unit have been made totalling 90%" in para (b), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023.
S 193-1(5) amended by No 93 of 2020, s 3 and Sch 4A item 9, by substituting "in relation to the unit have been made totalling 90%" for "for the unit have been made totalling 100%" in para (b), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
S 193-1(5) amended by No 169 of 2015, s 3 and Sch 3 item 7, by substituting "100%" for "90%" in para (b), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017.
S 193-15(5) amended by No 178 of 2011, s 3 and Sch 2 item 11, by substituting "90%" for "80%" in para (b), applicable in relation to units of study whose census dates are on or after 1 January 2012.
S 193-1(5) amended by No 130 of 2011, s 3 and Sch 1 item 35, by substituting ", *OS-HELP assistance or *SA-HELP assistance" for "or *OS-HELP assistance" in para (a), effective 1 January 2012.
SECTION 193-5
No entitlement to HECS-HELP assistance for students without tax file numbers
193-5(1)
A higher education provider must cancel a person's enrolment in a unit of study with the provider if:
(a)
the provider receives notice under section 190-15 or 190-20 to the effect that the person does not have, or no longer has, a *tax file number; and
(b)
at the end of 28 days after the provider receives that notice, the provider has not been notified of a number that the provider is satisfied (in accordance with subsection (3)) is a valid tax file number; and
(c)
the person is entitled to *HECS-HELP assistance for the unit (ignoring paragraph 90-1(f)); and
(d)
the person has not paid, as one or more *up-front payments in relation to the unit, his or her *student contribution amount for the unit.
Note 1:
If a person's enrolment is cancelled under this section, the provider has certain payment obligations: see section 36-24B.
Note 2:
The person's HELP balance in relation to the unit is re-credited: see subsection 97-27(1).
History
S 193-5(1) amended by No 64 of 2022, s 3 and Sch 4 item 14, by omitting "90% of" after "to the unit," from para (d), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023.
S 193-5(1) amended by No 93 of 2020, s 3 and Sch 4A item 10, by inserting "90% of" in para (d), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
S 193-5(1) amended by No 76 of 2018, s 3 and Sch 3 items 62 and 63, by inserting "1" in the note and inserting Note 2 at the end, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 193-5(1) amended by No 169 of 2015, s 3 and Sch 3 item 8, by omitting "90% of" before "his or her *student" from para (d), applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017.
S 193-5(1) amended by No 178 of 2011, s 3 and Sch 2 item 12, by substituting "90%" for "80%" in para (d), applicable in relation to units of study whose census dates are on or after 1 January 2012.
S 193-5(1) amended by No 104 of 2011, s 3 and Sch 2 item 21, by substituting the note at the end for note 1 and 2, 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. Note 1 and 2 formerly read:
Note 1:
If the unit does not wholly consist of work experience in industry, the person's SLE in relation to the unit is re-credited: see section 79-25.
Note 2:
If the unit wholly consists of work experience in industry, the provider has certain payment obligations: see section 36-23.
193-5(2)
The provider must not accept a further enrolment of the person in that unit as a *Commonwealth supported student.
193-5(3)
A higher education provider must, in deciding whether it is satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(b), comply with the guidelines issued by the *Commissioner under subsection 187-1(4).
193-5(4)
A higher education provider must comply with any requirements, set out in guidelines issued by the *Commissioner, relating to procedures for informing persons who may be affected by subsection (1) or (3) of the need to obtain a valid *tax file number.
193-5(5)
A guideline issued under subsection (4) is a legislative instrument.
History
S 193-5(5) amended by No 126 of 2015, s 3 and Sch 1 item 277, by omitting "for the purposes of the Legislative Instruments Act 2003", effective 5 March 2016.
SECTION 193-10
No entitlement to FEE-HELP assistance for students without tax file numbers
193-10(1)
This subsection applies to a person in relation to a unit of study if:
(a)
the person is enrolled with a higher education provider in the unit; and
(b)
access to the unit was not provided by *Open Universities Australia; and
(c)
the provider receives notice under section 190-15 or 190-20 to the effect that the person does not have, or no longer has, a *tax file number; and
(d)
at the end of 28 days after the provider receives that notice, the provider has not been notified of a number that the provider is satisfied (in accordance with subsection (3)) is a valid tax file number; and
(e)
the person is entitled to *FEE-HELP assistance for the unit (ignoring paragraph 104-1(1)(h)).
Note:
The person's HELP balance in relation to the unit is re-credited: see subsection 104-27(1).
History
S 193-10(1) amended by No 76 of 2018, s 3 and Sch 3 item 64, by substituting "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
193-10(2)
This subsection applies to a person in relation to a unit of study if:
(a)
the person is enrolled in the unit; and
(b)
access to the unit was provided by *Open Universities Australia; and
(c)
Open Universities Australia receives notice under section 190-15 or 190-20 to the effect that the person does not have, or no longer has, a *tax file number; and
(d)
at the end of 28 days after Open Universities Australia receives that notice, Open Universities Australia has not been notified of a number that it is satisfied (in accordance with subsection (3)) is a valid tax file number; and
(e)
the person is entitled to *FEE-HELP assistance for the unit (ignoring paragraph 104-1(1)(h)).
Note:
The person's HELP balance in relation to the unit is re-credited: see subsection 104-27(2).
History
S 193-10(2) amended by No 76 of 2018, s 3 and Sch 3 item 65, by substituting "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
193-10(3)
A higher education provider or *Open Universities Australia must, in deciding whether it is satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(d) or (2)(d), as the case may be, comply with the guidelines issued by the *Commissioner under subsection 187-1(4).
193-10(4)
A higher education provider or *Open Universities Australia must comply with any requirements, set out in guidelines issued by the *Commissioner, relating to procedures for informing persons of the need to obtain a valid *tax file number, where the persons may be affected by subsection (1) or (2), as the case may be, applying to them.
193-10(5)
A guideline issued under subsection (4) is a legislative instrument.
History
S 193-10(5) amended by No 126 of 2015, s 3 and Sch 1 item 277, by omitting "for the purposes of the Legislative Instruments Act 2003", effective 5 March 2016.
SECTION 193-15
No entitlement to SA-HELP assistance for students without tax file numbers
193-15(1)
This subsection applies to a person if:
(a)
a higher education provider has imposed a *student services and amenities fee on the person; and
(b)
the provider receives notice under section 190-15 or 190-20 to the effect that the person does not have, or no longer has, a *tax file number; and
(c)
at the end of 28 days after the provider receives that notice, the provider has not been notified of a number that the provider is satisfied (in accordance with subsection (2)) is a valid tax file number; and
(d)
the person is entitled to *SA-HELP assistance for the fee (ignoring paragraph 126-1(1)(c)).
Note:
If subsection (1) applies to a person:
(a) the provider must repay any amount paid to the provider by the Commonwealth to discharge the person's liability for the student services and amenities fee (see section 128-5); and
(b) the person's SA-HELP debt relating to the payment by the Commonwealth is remitted (see subsection 137-16(4)).
193-15(2)
A higher education provider must, in deciding whether it is satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(c), comply with the guidelines issued by the *Commissioner under subsection 187-1(4).
193-15(3)
A higher education provider must comply with any requirements, set out in guidelines issued by the *Commissioner, relating to procedures for informing persons of the need to obtain a valid *tax file number, where the persons may be affected by subsection (1) applying to them.
193-15(4)
A guideline issued under subsection (3) is a legislative instrument.
History
S 193-15 inserted by No 130 of 2011, s 3 and Sch 1 item 36, effective 1 January 2012.
SECTION 193-20
No entitlement to STARTUP-HELP assistance for students without tax file numbers
193-20(1)
This subsection applies to a person in relation to an *accelerator program course if:
(a)
the person is enrolled with a higher education provider in the course; and
(b)
the provider receives notice under section 190-15 or 190-20 to the effect that the person does not have, or no longer has, a *tax file number; and
(c)
at the end of 28 days after the provider receives that notice, the provider has not been notified of a number that the provider is satisfied (in accordance with subsection (2)) is a valid tax file number; and
(d)
the person is entitled to *STARTUP-HELP assistance for the course (ignoring paragraph 128B-1(1)(f)).
Note:
If this section applies then the amount of the STARTUP-HELP assistance is reversed (see section 128E-20). For the consequences if an amount of assistance is reversed, see sections 128D-5, 128D-10 and 137-17. See also paragraph 128B-1(1)(c).
193-20(2)
A higher education provider must, in deciding whether it is satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(c), comply with the guidelines issued by the *Commissioner under subsection 187-1(4).
193-20(3)
A higher education provider must comply with any requirements, set out in guidelines issued by the *Commissioner, relating to procedures for informing persons of the need to obtain a valid *tax file number, where the persons may be affected by subsection (1) applying to them.
193-20(4)
A guideline issued under subsection (3) is a legislative instrument.
History
S 193-20 inserted by No 36 of 2023, s 3 and Sch 1 item 62, effective 29 June 2023.
PART 5-6 - INDEXATION
Division 198 - Indexation
SECTION 198-1
198-1
What this Part is about
Several amounts referred to in provisions of this Act are indexed. This Part sets out how those amounts are indexed.
Note 1:
Different methods of indexation are used for the indexing of accumulated HELP debts under section 140-10, and for the indexing of HELP repayment thresholds under section 154-25.
Note 2:
Guidelines may provide for amounts to be indexed using the method of indexation set out in this Part.
History
S 198-1 amended by No 76 of 2018, s 3 and Sch 1 item 12, by substituting "section 140-10" for "sections 140-10 and 140-15" in note 1, effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years.
SECTION 198-5
The amounts that are to be indexed
198-5(1)
This table sets out the amounts that are to be indexed.
Amounts that are to be indexed
|
Item
|
Amounts:
|
See:
|
1AA |
(Repealed by No 38 of 2012) |
|
1A |
Amount mentionedin paragraph 19-37(5)(e) |
Section 19-37 |
1 |
*Commonwealth contribution amount |
Subsection 33-10(1) |
2A |
*Grandfathered Commonwealth contribution amount |
Subsection 33-10(2) |
2 |
Reduction amount |
Section 33-37 |
3 |
*Maximum student contribution amount for a place |
Section 93-10 |
4 |
The *HELP loan limit |
Section 128-20 |
5 |
*Maximum OS-HELP (overseas study) amounts |
Section 121-5 |
6 |
The *maximum OS-HELP (Asian language study) amount |
Section 121-15 |
History
S 198-5(1) amended by No 93 of 2020, s 3 and Sch 2 item 6, by substituting "amount for a place" for "amounts for places" in table item 3, effective 28 October 2020.
S 198-5(1) amended by No 93 of 2020, s 3 and Sch 1 item 26, by substituting table items 1 and 2A for table item 1, effective 28 October 2020. For application provisions, see note under s 30-12. Table item 1 formerly read:
1 |
*Commonwealth contribution amounts |
Section 33-10 |
S 198-5(1) amended by No 76 of 2018, s 3 and Sch 3 item 66, by substituting table item 4, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading. Table Item 4 formerly read:
4 |
The *FEE-HELP limit |
Section 104-20 |
S 198-5(1) amended by No 112 of 2013, s 3 and Sch 1 item 23, by substituting table item 5 and 6 for table item 5, effective 30 June 2013. For application provisions see note under s 121-1. Table item 5 formerly read:
5 |
The *maximum OS-HELP amount |
Section 121-5 |
S 198-5(1) amended by No 38 of 2012, s 3 and Sch 1 item 6, by substituting table item 1A for 1AA, effective 1 January 2012. Table item 1AA formerly read:
1AA |
Amount mentioned in paragraph 19-37(5)(e) |
Section 19-37 |
2011 |
S 198-5(1) renumbered from s 198-5 by No 38 of 2012, s 3 and Sch 1 item 5, by inserting "(1)" before "This table", effective 1 January 2011.
S 198-5(1) (formerly s 198-5) substituted by No 111 of 2010, s 3 and Sch 1 item 1, applicable in respect of the Higher Education Grants Index number published by the Minister in the Gazette for the 2012 year and subsequent years. S 198-5 formerly read:
SECTION 198-5 The amounts that are to be indexed
198-5
This table sets out the amounts that are to be indexed.
Amounts that are to be indexed
|
Item
|
Amounts:
|
See:
|
First year of indexation
|
1 |
*Commonwealth contribution amounts |
Section
33-10 |
2005 |
1A |
Reduction amount |
Section
33-37 |
2007 |
2 |
*Maximum student contribution amounts for places |
Section
93-10 |
2005 |
3 |
The *FEE-HELP limit |
Section
104-20 |
2006 |
4 |
The *maximum OS-HELP amount |
Section
121-5 |
2006 |
198-5(2)
The amount mentioned in the section referred to in an item of the table, for a calendar year with an indexation factor greater than 1, is replaced by the amount worked out in accordance with section 198-10.
History
S 198-5(2) inserted by No 38 of 2012, s 3 and Sch 1 item 7, effective 1 January 2011.
[
CCH Note:
No 38 of 2012, s 3 and Sch 1 items 7 and 8 contain the following application provisions:
8 Indexation of amounts in 2011
8
The amounts set out in the table in section 198-5 of the Higher Education Support Act 2003, as in force immediately before the commencement of the Higher Education Support Amendment (Indexation) Act 2010, are to be indexed on 1 January 2011 in accordance with Part 5-6 of the Higher Education Support Act 2003, as in force immediately before the commencement of the Higher Education Support Amendment (Indexation) Act 2010.
9 Indexation of amount in 2012
9
Despite section 198-10 of the Higher Education Support Act 2003, the amount set out in item 1A of the table in section 198-5 of that Act, as inserted by item 6 of this Part, is not to be indexed on 1 January 2012 in accordance with Part 5-6 of that Act.
]
SECTION 198-10
Indexing amounts
198-10(1)
An amount is indexed on 1 January each year, by multiplying it by the *indexation factor for the year.
History
S 198-10(1) substituted by No 55 of 2016, s 3 and Sch 2 item 1, effective 1 January 2018. S 198-10(1) formerly read:
198-10(1)
An amount is indexed on 1 January 2012, and on each subsequent 1 January, by multiplying it by the *indexation factor for the relevant year.
S 198-10(1) substituted by No 111 of 2010, s 3 and Sch 1 item 2, applicable in respect of the Higher Education Grants Index number published by the Minister in the Gazette for the 2012 year and subsequent years. S 198-10(1) formerly read:
198-10(1)
An amount is indexed on 1 January in the year referred to in the table in section 198-5 as the first year of indexation in relation to the amount, and on each subsequent 1 January, by multiplying it by the *indexation factor for the relevant year.
198-10(2)
However an amount is not indexed if its *indexation factor is 1 or less.
198-10(3)
If an amount worked out under subsection (1) is an amount made up of dollars and cents, round the amount down to the nearest dollar.
SECTION 198-15
Meaning of indexation factor
198-15(1)
The indexation factor for the relevant year is:
|
The *index number for the December reference quarter |
|
|
The *index number for the December base quarter |
|
where:
December base quarter
means the *quarter ending on the 31 December that is 2 years and a day before the relevant 1 January.
December reference quarter
means the *quarter ending on the 31 December that is a year and a day before the relevant 1 January.
History
S 198-15(1) amended by No 55 of 2016, s 3 and Sch 2 item 2, by substituting the formula, effective 1 January 2018. The formula formerly read:
The *index number for the relevant year |
|
|
The *index number for the year immediately preceding the relevant year |
|
|
198-15(2)
Work out the *indexation factor to 3 decimal places (rounding up if the fourth decimal place is 5 or more).
Example:
If the factor is 1.102795, it is rounded up to 1.103.
SECTION 198-20
Meaning of
index number
198-20(1)
The
index number
for a *quarter is the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the *Australian Statistician in respect of that quarter.
198-20(2)
Subject to subsection (3), if, at any time before or after the commencement of this subsection:
(a)
the *Australian Statistician has published or publishes an index number in respect of a *quarter; and
(b)
that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;
disregard the publication of the later index number for the purposes of this section.
198-20(3)
If, at any time before or after the commencement of this subsection, the *Australian Statistician has changed or changes the index reference period for the Consumer Price Index, then, for the purposes of applying this section after the change took place or takes place, have regard only to *index numbers published in terms of the new index reference period.
History
S 198-20 substituted by No 55 of 2016, s 3 and Sch 2 item 3, effective 1 January 2018. S 198-20 formerly read:
SECTION 198-20 Meaning of
index number
198-20(1)
For the purpose of applying section 198-10 to the amounts specified in the table in section 198-5 for a year, the
index number
is the Higher Education Grants Index number for the year published by the Minister in the Gazette.
198-20(2)
The Higher Education Grants Index number for a year must reflect the following amounts:
(a)
25% of the amount of the movement in the All Groups Consumer Price Index for the weighted average of the 8 capital cities, based on index numbers published by the *Australian Statistician for each *quarter in the *indexation period;
(b)
75% of 90% of the amount of the movement in the Professional, Scientific and Technical Services Labour Price Index, based on index numbers published by the Australian Statistician for each quarter in the indexation period.
198-20(3)
Subject to subsection (4), if, at any time before or after the commencement of this subsection:
(a)
the *Australian Statistician has published or publishes an index number in respect of a *quarter; and
(b)
that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;
regard may be had to the publication of the later index for the purposes of calculating the Higher Education Grants Index number for a year.
198-20(4)
If, at any time before or after the commencement of this subsection, the *Australian Statistician has changed or changes the reference base for the All Groups Consumer Price Index or the Professional, Scientific and Technical Services Labour Price Index, then, for the purposes of applying this section after the change took place or takes place, have regard to index numbers published in terms of the new reference base.
198-20(5)
For the purpose of applying section 198-10 to the amounts specified in each item of the table in section 198-5 for 2012, the
index number
for 2011 is taken to be 1.
198-20(6)
A notice in the Gazette specifying an index number is not a legislative instrument.
198-20(7)
In this section:
indexation period,
in relation to a calendar year, means the period beginning on 1 January 2010 and ending on 31 December of the calendar year before the immediately preceding calendar year.
S 198-20 substituted by No 111 of 2010, s 3 and Sch 1 item 3, applicable in respect of the Higher Education Grants Index number published by the Minister in the Gazette for the 2012 year and subsequent years. S 198-20 formerly read:
SECTION 198-20 Meaning of
index number
198-20(1)
Subject to subsections (2) and (3), the index number, for a year, is the Higher Education Grants Index number for that year published by the Minister in the Gazette. Publication may occur at any time, including any time before the start of the year.
History
S 198-20(1) amended by No 86 of 2009, s 3 and Sch 7 item 1, by substituting "(1) Subject to subsections (2) and (3), the" for "The", effective 18 September 2009.
198-20(2)
For the purpose of applying section 198-10 to the amounts specified in item 2 of the table in section 198-5 for 2011, the
index number
is the Higher Education Student Contribution Amounts Index number for that year published by the Minister in the Gazette. Publication may occur at any time, including any time before the start of the year.
History
S 198-20(2) inserted by No 86 of 2009, s 3 and Sch 7 item 2, effective 18 September 2009.
198-20(3)
For the purpose of applying section 198-10 to the amounts specified in each item of the table in section 198-5 for 2012, the
index number
for 2011 is taken to be 1.
History
S 198-20(3) inserted by No 86 of 2009, s 3 and Sch 7 item 2, effective 18 September 2009.
198-20(4)
A notice in the Gazette specifying an index number is not a legislative instrument.
History
S 198-20(4) inserted by No 86 of 2009, s 3 and Sch 7 item 2, effective 18 September 2009.
SECTION 198-25
198-25
Review of indexation
(Repealed by No 111 2010)
History
S 198-25 repealed by No 111 of 2010, s 3 and Sch 1 item 4, effective 1 January 2011. S 198-25 formerly read:
SECTION 198-25 Review of indexation
198-25(1)
The Minister will initiate and undertake a review of the cost adjustment factor indexation mechanism for the Commonwealth funding of universities from 2007/08.
198-25(2)
The review must be completed by February 2005 and the Government must respond to the review by April 2005 and give effect to its response when introducing the annual Higher Education Support Amendment Bill in the 2005 May sittings of the Parliament.
198-25(3)
Without limiting the scope of the review, the reviewers must, among other things, consider the following:
(a)
the alternative indices to use for wage costs-for example, the relative merits of average weekly earnings, the Commonwealth's education wage cost index, baskets of domestic professional wage rates and purchasing power parity adjusted indices for academic labour;
(b)
the alternative indices for non-wage costs, noting the high reliance of universities on advanced equipment, information technology, research infrastructure and international book and periodical stocks;
(c)
the application of any agreed index or indices to the actual Commonwealth-funded staffing and financial profile of each university rather than the application of an assumed uniform profile.
PART 5-7 - REVIEW OF DECISIONS
Division 203 - Introduction
SECTION 203-1
203-1
What this Part is about
Some decisions made under this Act are subject to reconsideration and then review by the Administrative Review Tribunal.
History
S 203-1 amended by No 39 of 2024, s 3 and Sch 5 item 35, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal", effective 14 October 2024.
Division 206 - Which decisions are subject to review?
SECTION 206-1
206-1
Reviewable decisions etc.
The table sets out:
(a)
the reviewable decisions under this Act; and
(b)
the decision maker, for the purposes of this Division, in respect of each of those decisions.
Reviewable decisions
|
Item
|
Decision
|
Provision under which decision is made
|
Decision maker
|
1AA |
A decision to impose a condition on the approval of a higher education provider |
subsection 16-60(1) |
the Minister |
1AAA |
If a person applies for a grant for the purposes specified in item 14 of the table in subsection 41-10(1) and the grant is not approved - the decision not to approve the grant |
section 41-20 |
the Minister |
1AB |
A decision to vary a condition imposed on the approval of a higher education provider |
subsection 16-60(2) |
the Minister |
1AC |
A decision that a person is not a genuine student in relation to a unit of study |
subsection 36-5(5) |
the *Secretary |
1AD |
A decision that undertaking a unit of study will impose an unreasonable study load on a student |
subsection 36-12(2) |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision - the Secretary |
1AE |
(Repealed by No 89 of 2023) |
|
|
|
1A |
A decision that section 36-20 does not apply to a person |
section 36-20 |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision that the section does not apply - the Secretary |
1BA |
Refusal to re-credit a person's *SLE amount with an amount equal to the *EFTSL value of a unit of study |
subsection 79-1(1) |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision to refuse the re-crediting - the Secretary |
1BB |
Refusal to re-credit one or more of the amounts referred to in paragraphs 79-1(2)(a), (b) and (c) to take account of a re-credit of a person's *SLE amount under subsection 79-1(1) |
subsection 79-1(2) |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision to refuse the re-crediting - the Secretary |
1B |
Refusal to re-credit a person's *HELP balance |
subsection 97-25(2) |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision to refuse the re-crediting - the Secretary |
1C |
Refusal to re-credit a person's *HELP balance |
subsection 97-45(1) |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision - the Secretary |
1D |
Refusal to re-credit a person's *HELP balance |
subsection 97-50(1) |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision - the Secretary |
1E |
A decision that a student is not a genuine student in relation to a unit of study |
subsection 104-1(1AA) |
the *Secretary |
1F |
A decision that undertaking a unit of study will impose an unreasonable study load on a student |
subsection 104-1AA(2) |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision - the Secretary |
1 |
(Repealed by No 89 of 2023) |
|
|
2 |
Refusal to re-credit a person's *HELP balance |
subsection 104-25(1) |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision to refuse the re-crediting-the Secretary |
2A |
Refusal to re-credit a person's *HELP balance |
subsection 104-25(2) |
(a) |
*Open Universities Australia; or |
|
|
|
(b) |
if the *Secretary made the decision to refuse the re-crediting-the Secretary |
2AAA |
A decision that a student is not a genuine student in relation to an *accelerator program course |
section 128B-10 |
the *Secretary |
2AAB |
A decision that undertaking an *accelerator program course will impose an unreasonable study load on a student |
subsection 128B-15(2) |
(a) |
the higher education provider with whom the student is enrolled in the accelerator program course; or |
|
|
(b) |
if the *Secretary made the decision - the Secretary |
2AAC |
A decision that section 128E-1 does not apply to a person |
subsection 128E-1(1) |
(a) |
the higher education provider with whom the student is enrolled in the *accelerator program course; or |
|
|
|
(b) |
if the *Secretary made the decision that the section does not apply - the Secretary |
2AA |
A decision that the indexation of a person's *accumulated HELP debt is not to be reduced, or is to be reduced in respect of a particular number of days |
section 142-10 or 144-5 |
the *Secretary |
2AB |
A decision that a person's accumulated HELP debt is not to be reduced, or is to be reduced by a particular amount |
section 142-15 or 144-10 |
the *Secretary |
3 |
Deferral of making an assessment or refusal to defer the making of an assessment |
section 154-45 |
the *Commissioner |
4 |
Amending the assessment or refusal to amend an assessment |
section 154-50 |
the *Commissioner |
4A |
(Repealed by No 55 of 2016) |
|
|
5 |
A determination that Part 5-1A applies, or does not apply, to a specified higher education provider |
subsection 166-5(2) |
the Minister |
6 |
A decision that the *Higher Education Tuition Protection Director is satisfied that there are one or more suitable *replacement courses for a student |
paragraph 166-26B(2)(a) |
the Higher Education Tuition Protection Director |
7 |
A decision that the *Higher Education Tuition Protection Director is not satisfied that there is a suitable *replacement course for a student |
paragraph 166-26B(2)(b) |
the Higher Education Tuition Protection Director |
8-10 |
(Repealed by No 72 of 2007) |
|
|
Note 1:
The decisions referred to in items 1A, 1BA, 1BB, 1B, 1C, 1D and 2 of the table are made by a higher education provider on the Secretary's behalf.
Note 2:
The decisions referred to in item 2A of the table are made by Open Universities Australia on the Secretary's behalf.
History
S 206-1 amended by No 89 of 2023, s 3 and Sch 1 item 14, by repealing table items 1AE and 1, effective 1 January 2024. Table items 1AE and 1 formerly read:
1AE |
A decision that special circumstances do not apply in relation to a person |
paragraph 36-13(2)(b) |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision that special circumstances do not apply - the Secretary |
1 |
A decision that section 104-30 does not apply to a person |
subsection 104-1A(2) |
the higher education provider with whom the student is enrolled in the unit |
S 206-1 amended by No 36 of 2023, s 3 and Sch 1 item 63, by inserting table items 2AAA-2AAC, effective 29 June 2023.
S 206-1 amended by No 5 of 2023, s 3 and Sch 1 item 8, by inserting table item 1AAA, effective 15 March 2023.
S 206-1 amended by No 3 of 2023, s 3 and Sch 2 items 31 and 32, by inserting "or 144-5" at the end of the cell at table item 2AA, column headed "Provision under which decision is made" and "or 144-10" at the end of the cell at table item 2AB, column headed "Provision under which decision is made", effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
S 206-1 amended by No 93 of 2020, s 3 and Sch 4B items 9 and 10, by inserting table items 1BA and 1BB and inserting "1BA, 1BB," in note 1, effective 1 January 2022.
S 206-1 amended by No 93 of 2020, s 3 and Sch 4 item 40A, by inserting table item 1AE, effective 1 January 2022.
S 206-1 amended by No 101 of 2020, s 3 and Sch 2 item 60, by substituting table items 6 and 7, effective 1 January 2021. Table items 6 and 7 formerly read:
6 |
A decision that the *HELP Tuition Protection Director is satisfied that there are one or more suitable *replacement courses for a student |
paragraph 166-25(1)(a) |
the *HELP Tuition Protection Director |
7 |
A decision that the *HELP Tuition Protection Director is not satisfied that there is a suitable *replacement course for a student |
paragraph 166-25(1)(b) |
the HELP Tuition Protection Director |
S 206-1 amended by No 93 of 2020, s 3 and Sch 4 items 32-34, by inserting table items 1AC, 1AD, 1C to 1 and substituting note 1, effective 1 January 2021. Note 1 formerly read:
Note 1:
The decisions referred to in items 1A, 1B, 1 and 2 of the table are made by a higher education provider on the Secretary's behalf.
S 206-1 amended by No 111 of 2019, s 3 and Sch 2 item 19, by inserting table items 5-7, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
S 206-1 amended by No 103 of 2019, s 3 and Sch 2 item 12, by inserting table items 2AA and 2AB, effective 1 January 2020.
S 206-1 amended by No 76 of 2018, s 3 and Sch 3 items 67-70, by inserting table item 1B after table item 1A, substituting "*HELP balance" for "*FEE-HELP balance" at table item 2, column headed "Decision", "*HELP balance" for "*FEE-HELP balance" at table item 2A, column headed "Decision" and inserting ", 1B" after "1A" in Note 1, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
S 206-1 amended by No 55 of 2016, s 3 and Sch 3 item 13, by repealing table item 4A, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. Table item 4A formerly read:
4A |
A determination |
section 157-20 |
the *Commissioner |
S 206-1 amended by No 74 of 2011, s 3 and Sch 2 item 20, by repealing table item 5, effective 29 January 2012. Table item 5 formerly read:
5 |
A decision under Division 225 (other than section 225-25), in relation to an external Territory |
Division 225 (other than section 225-25) |
the Minister |
S 206-1 amended by No 104 of 2011, s 3 and Sch 2 item 22, by substituting table item 1A for table items 1A and 1, 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. Table items 1A and 1 formerly read:
1A |
A decision that section 36-22 does not apply to a person |
section 36-22 |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision that the section does not apply-the Secretary |
1 |
Refusal to re-credit some or all of a person's *student learning entitlement for a unit of study |
section 79-1 |
(a) |
the higher education provider with whom the student is enrolled in the unit; or |
|
|
|
(b) |
if the *Secretary made the decision to refuse the re-crediting-the Secretary |
S 206-1 amended by No 72 of 2011, s 3 and Sch 1 item 18, by inserting table items 1AA and 1AB, effective 30 June 2011.
S 206-1 amended by No 43 of 2008, s 3 and Sch 1 item 14, by inserting table item 4A, applicable in respect of the 2008-2009 and later income years.
S 206-1 amended by No 72 of 2007, s 3 and Sch 1 item 24, by substituting table item 5 for table items 5 to 10, effective 31 December 2007. Table items 5 to 10 formerly read:
5 ... Refusal to approve a person as a self-accrediting entity in relation to an external Territory ... section 225-5 ... the Minister
6 ... Refusal to accredit a *course of study in relation to an external Territory ... section 225-10 ... the Minister
7 ... Amendment of an approval as a self-accrediting entity in relation to an external Territory ... subsection 225-20(1) ... the Minister
8 ... Revocation of an approval as a self-accrediting entity in relation to an external Territory ... subsection 225-20(1) ... the Minister
9 ... Amendment of an accreditation of a *course of study, in relation to an external Territory ... subsection 225-20(2) ... the Minister
10 ... Revocation of an accreditation of a *course of study, in relation to an external Territory ... subsection 225-20(2) ... the Minister
SECTION 206-5
206-5
Deadlines for making reviewable decisions
If:
(a)
this
Act provides for a person to apply to a *decision maker to make a *reviewable
decision; and
(b)
a period
is specified under this Act for giving notice of the decision to the applicant;
and
(c)
the decision maker
has not notified the applicant of the decision maker's decision within that
period;
the decision maker is taken,
for the purposes of this Act, to have made a decision to reject the application.
SECTION 206-10
Decision maker must give reasons for reviewable decisions
206-10(1)
If
this Act requires the *decision maker to notify a person of the making of
a *reviewable decision, the notice must include reasons for the decision.
206-10(2)
Subsection
(1) does not affect an obligation, imposed upon the *decision maker by any
other law, to give reasons for a decision.
Division 209 - How are decisions reconsidered?
SECTION 209-1
Reviewer of decisions
209-1(1)
The reviewer of a *reviewable decision is:
(a)
if the *decision maker was a higher education provider acting on behalf of the *Secretary - the Secretary; or
(b)
if the *decision maker was *Open Universities Australia acting on behalf of the *Secretary - the Secretary; or
(c)
in any other case - the decision maker, but see subsection (2).
209-1(2)
If:
(a)
a *reviewable decision was made by a delegate of a *decision maker; and
(b)
the decision is to be reconsidered by a delegate of the decision maker; then the delegate who reconsiders the decision must be a person who:
(c)
was not involved in making the decision; and
(d)
occupies a position that is senior to that occupied by any person involved in making the decision.
Note 1:
The Secretary may delegate to a review officer of a higher education provider the power to reconsider reviewable decisions made under subsection 36-12(2) or 36-20(1) or Chapter 3: see subsection 238-1(2).
Note 2:
The Secretary may also delegate to a review officer of Open Universities Australia the power to reconsider reviewable decisions made under Chapter 3: see subsection 238-1(2A).
History
S 209-1(2) amended by No 89 of 2023, s 3 and Sch 1 item 15, by substituting "or" for ", paragraph 36-13(2)(b), subsection" in note 1, effective 1 January 2024.
S 209-1(2) amended by No 93 of 2020, s 3 and Sch 4 item 40B, by substituting "subsection 36-12(2), paragraph 36-13(2)(b), subsection 36-20(1)" for "subsection 36-12(2) or 36-20(1)" in note 1, effective 1 January 2022.
S 209-1(2) amended by No 93 of 2020, s 3 and Sch 4 item 35, by substituting "subsection 36-12(2) or 36-20(1)" for "section 36-20" in note 1, effective 1 January 2021.
S 209-1(2) amended by No 104 of 2011, s 3 and Sch 2 item 23, by substituting "36-20" for "36-22" in note 1, 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.
SECTION 209-5
Reviewer may reconsider reviewable decisions
209-5(1)
The *reviewer of a *reviewable decision may reconsider the decision if the reviewer is satisfied that there is sufficient reason to do so.
209-5(2)
The *reviewer may reconsider the decision even if:
(a)
an application for reconsideration of the decision has been made under section 209-10; or
(b)
the decision has been confirmed, varied or set aside under section 209-10 and an application has been made under section 212-1 for review of the decision.
209-5(3)
After reconsidering the decision, the *decision maker must:
(a)
confirm the decision; or
(b)
vary the decision; or
(c)
set the decision aside and substitute a new decision.
209-5(4)
The *reviewer's decision (the decision on review) to confirm, vary or set aside the decision takes effect:
(a)
on the day specified in the decision on review; or
(b)
if a day is not specified - on the day on which the decision on review was made.
209-5(5)
The *reviewer must give written notice of the decision on review to the person to whom that decision relates.
209-5(6)
The notice:
(a)
must be given within a reasonable period after the decision is made; and
(b)
must contain a statement of the reasons for the *reviewer's decision on review.
Note:
Section 266 of the Administrative Review Tribunal Act 2024 requires the person to be notified of the person's review rights.
History
S 209-5 amended by No 39 of 2024, s 3 and Sch 5 item 36, by substituting "Section 266 of the Administrative Review Tribunal Act 2024" for "Section 27A of the Administrative Appeals Tribunal Act 1975" in the note, effective 14 October 2024.
SECTION 209-10
Reconsideration of reviewable decisions on request
209-10(1)
A person whose interests are affected by a *reviewable decision may request the *reviewer to reconsider the decision.
209-10(2)
The person's request must be made by written notice given to the *reviewer within 28 days, or such longer period as the reviewer allows, after the day on which the person first received notice of the decision.
209-10(3)
The notice must set out the reasons for making the request.
209-10(4)
After receiving the request, the *reviewer must reconsider the decision and:
(a)
confirm the decision; or
(b)
vary the decision; or
(c)
set the decision aside and substitute a new decision.
209-10(4A)
Despite subsection (4), the *reviewer is not required to reconsider the decision if:
(a)
the decision was made under paragraph 166-26B(2)(b); and
(b)
the person gave notice in writing, under paragraph 166-26B(8)(c), that the person would not seek reconsideration of the decision.
History
S 209-10(4A) amended by No 101 of 2020, s 3 and Sch 2 items 100 and 101, by substituting "paragraph 166-26B(2)(b)" for "paragraph 166-25(1)(b)" in para (a) and "paragraph 166-26B(8)(c)" for "paragraph 166-25(4)(c)" in para (b), applicable in relation to provider defaults that occur on or after 1 January 2021.
S 209-10(4A) inserted by No 111 of 2019, s 3 and Sch 2 item 20, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
209-10(5)
The *reviewer's decision (the decision on review) to confirm, vary or set aside the decision takes effect:
(a)
on the day specified in the decision on review; or
(b)
if a day is not specified - on the day on which the decision on review was made.
209-10(5A)
The *reviewer must give the person written notice of the decision on review.
209-10(5B)
The notice:
(a)
must be given within a reasonable period after the decision on review is made; and
(b)
must contain a statement of the reasons for the decision on review.
209-10(6)
The *reviewer is taken, for the purposes of this Part, to have confirmed the decision if the reviewer does not give notice of a decision to the person within 45 days after receiving the person's request.
Note:
Section 266 of the Administrative Review Tribunal Act 2024 requires the person to be notified of the person's review rights.
History
S 209-10 amended by No 39 of 2024, s 3 and Sch 5 item 37, by substituting "Section 266 of the Administrative Review Tribunal Act 2024" for "Section 27A of the Administrative Appeals Tribunal Act 1975" in the note, effective 14 October 2024.
Division 212 - Which decisions are subject to ART review?
History
Div 212 heading amended by No 39 of 2024, s 3 and Sch 5 item 38, by substituting "
ART
" for "
AAT
", effective 14 October 2024.
SECTION 212-1
ART review of reviewable decisions
History
S 212-1 heading amended by No 39 of 2024, s 3 and Sch 5 item 39, by substituting "
ART
" for "
AAT
", effective 14 October 2024.
212-1(1)
An application may be made to the Administrative Review Tribunal for the review of a *reviewable decision that has been confirmed, varied or set aside under section 209-5 or 209-10.
History
S 212-1(1) amended by No 39 of 2024, s 3 and Sch 5 item 40, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal", effective 14 October 2024.
S 212-1(1) amended by No 111 of 2019, s 3 and Sch 2 item 21, by inserting "(1)", effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
212-1(2)
Despite subsection (1), an application cannot be made for the review of a decision made under paragraph 166-26B(2)(a) or (b) (about suitable replacement courses).
History
S 212-1(2) amended by No 101 of 2020, s 3 and Sch 2 item 102, by substituting "paragraph 166-26B(2)(a) or (b)" for "paragraph 166-25(1)(a) or (b)", applicable in relation to provider defaults that occur on or after 1 January 2021.
S 212-1(2) inserted by No 111 of 2019, s 3 and Sch 2 item 22, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
PART 5-8 - REGULATORY POWERS
History
Pt 5-8 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-1
What this Part is about
Certain persons have monitoring and investigation powers under the Regulatory Powers Act to ensure this Act is being complied with.
This Part also provides for the application of the Regulatory Powers Act in relation to civil penalties, infringement notices, enforceable undertakings and injunctions.
History
S 215-1 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-5
Monitoring powers
215-5(1)
The provisions of this Act (other than Schedule 1A) are subject to monitoring under Part 2 of the *Regulatory Powers Act.
Note 1:
Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.
Note 2:
Schedule 1A of this Act contains separate monitoring and investigation powers in relation to matters dealt with in that Schedule: see Subdivision 5A-C of that Schedule.
215-5(2)
Information given in compliance or purported compliance with a provision mentioned in subsection (1) is subject to monitoring under Part 2 of the *Regulatory Powers Act.
Note:
Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
215-5(3)
For the purposes of Part 2 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a)
each *HESA investigator and *TEQSA investigator is an authorised applicant; and
(b)
each HESA investigator and TEQSA investigator is an authorised person; and
(c)
a *judicial officer is an issuing officer; and
(d)
for an authorised person who is a HESA investigator, the *Secretary is the relevant chief executive; and
(e)
for an authorised person who is a TEQSA investigator, the Chief Executive Officer of *TEQSA is the relevant chief executive; and
(f)
each *applicable court is a relevant court.
215-5(4)
An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to this Act (other than Schedule 1A).
History
S 215-5 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-10
Investigation powers
215-10(1)
A provision is subject to investigation under Part 3 of the *Regulatory Powers Act if it is:
(a)
a *civil penalty provision of this Act (other than Schedule 1A); or
(b)
an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act (other than Schedule 1A).
Note 1:
Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Note 2:
Schedule 1A of this Act contains separate monitoring and investigation powers in relation to matters dealt with in that Schedule: see Subdivision 5A-C of that Schedule.
215-10(2)
For the purposes of Part 3 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a)
each *HESA investigator and *TEQSA investigator is an authorised applicant; and
(b)
each HESA investigator and TEQSA investigator is an authorised person; and
(c)
a *judicial officer is an issuing officer; and
(d)
for an authorised person who is a HESA investigator, the *Secretary is the relevant chief executive; and
(e)
for an authorised person who is a TEQSA investigator, the Chief Executive Officer of *TEQSA is the relevant chief executive; and
(f)
each *applicable court is a relevant court.
215-10(3)
An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the *Regulatory Powers Act in relation to this Act (other than Schedule 1A).
History
S 215-10 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-15
Civil penalty provisions
215-15(1)
Each *civil penalty provision of this Act (other than Schedule 1A) is enforceable under Part 4 of the *Regulatory Powers Act.
Note 1:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Note 2:
Schedule 1A of this Act contains separate monitoring and investigation powers in relation to matters dealt with in that Schedule: see Subdivision 5A-A of that Schedule.
215-15(2)
For the purposes of Part 4 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a)
each of the following is an authorised applicant:
(i)
the *Secretary;
(ii)
an SES employee, or an acting SES employee, in the Department; and
(b)
each *applicable court is a relevant court.
215-15(3)
For the purposes of Part 4 of the *Regulatory Powers Act as it applies in relation to Part 5-1A of this Act, the *Higher Education Tuition Protection Director is an authorised applicant.
History
S 215-15(3) amended by No 101 of 2020, s 3 and Sch 2 item 61, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
S 215-15(3) inserted by No 111 of 2019, s 3 and Sch 2 item 23, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
History
S 215-15 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-20
Infringement notices
215-20(1)
A *civil penalty provision of this Act (other than Schedule 1A) is subject to an infringement notice under Part 5 of the *Regulatory Powers Act.
Note 1:
Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Note 2:
Schedule 1A of this Act contains separate monitoring and investigation powers in relation to matters dealt with in that Schedule: see Subdivision 5A-B of that Schedule.
215-20(2)
For the purposes of Part 5 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a)
each of the following is an infringement officer:
(i)
a member of the staff of TEQSA (within the meaning of the *TEQSA Act) who is an SES employee or an acting SES employee;
(ii)
a member of the staff of TEQSA (within the meaning of the *TEQSA Act) who is an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position;
(iii)
an SES employee, or an acting SES employee, in the Department; and
(b)
the relevant chief executive is:
(i)
for an infringement notice given by an infringement officer covered by subparagraph (a)(i) or (ii) - the Chief Executive Officer of *TEQSA; or
(ii)
for an infringement notice given by an infringement officer covered by subparagraph (a)(iii) - the *Secretary.
215-20(3)
For the purposes of Part 5 of the *Regulatory Powers Act as it applies in relation to Part 5-1A of this Act, the *Higher Education Tuition Protection Director:
(a)
is an infringement officer; and
(b)
is the relevant chief executive.
History
S 215-20(3) amended by No 101 of 2020, s 3 and Sch 2 item 62, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director", effective 1 January 2021.
S 215-20(3) inserted by No 111 of 2019, s 3 and Sch 2 item 24, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
History
S 215-20 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-25
Enforceable undertakings
215-25(1)
The provisions of this Act (other than Schedule 1A) are enforceable under Part 6 of the *Regulatory Powers Act.
Note:
Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
215-25(2)
For the purposes of Part 6 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a)
the *Secretary is an authorised person; and
(b)
each *applicable court is a relevant court.
History
S 215-25 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-30
Injunctions
215-30(1)
The provisions of this Act (other than Schedule 1A) are enforceable under Part 7 of the *Regulatory Powers Act.
Note:
Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
215-30(2)
For the purposes of Part 7 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a)
the *Secretary is an authorised person; and
(b)
each *applicable court is a relevant court.
History
S 215-30 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-35
Appointment of investigators
215-35(1)
The *Secretary may, in writing, appoint a person as a
HESA investigator
.
215-35(2)
The Chief Executive Officer of *TEQSA may, in writing, appoint a member of the staff of TEQSA (within the meaning of the *TEQSA Act) as a
TEQSA investigator
.
215-35(3)
A person must not be appointed as a *HESA investigator, or a *TEQSA investigator, unless the appointer is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of such an investigator.
215-35(4)
A *HESA investigator, and a *TEQSA investigator, must, in exercising powers as such, comply with any directions of the appointer.
215-35(5)
If a direction is given under subsection (4) in writing, the direction is not a legislative instrument.
History
S 215-35 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-40
Delegation of regulatory powers
215-40(1)
The *Secretary may, in writing, delegate his or her powers and functions under the *Regulatory Powers Act as it applies in relation to this Act (other than Schedule 1A), to an SES employee, or an acting SES employee, in the Department.
215-40(1A)
The *Higher Education Tuition Protection Director may, in writing, delegate the following functions and powers to an SES employee, or an acting SES employee, in the Department:
(a)
the Director's functions and powers under the *Regulatory Powers Act as it applies in relation to Part 5-1A of this Act;
(b)
the Director's functions and powers under the Regulatory Powers Act as it applies in relation to Part 5A of the *TEQSA Act.
History
S 215-40(1A) substituted by No 101 of 2020, s 3 and Sch 2 item 63, effective 1 January 2021. No 101 of 2020, s 3 and Sch 2 item 70 contains the following saving provision:
70 Saving provision
70
An instrument made under subsection 215-40(1A), or section 238-6, of the Higher Education Support Act 2003 that was in force immediately before the commencement of this Act continues in force (and may be dealt with) as if it had been made under that subsection, or section, as amended by this Act.
S 215-40(1A) formerly read:
215-40(1A)
The *HELP Tuition Protection Director may, in writing, delegate his or her powers and functions under the *Regulatory Powers Act as it applies in relation to Part 5-1A of this Act, to an SES employee, or an acting SES employee, in the Department.
S 215-40(1A) inserted by No 111 of 2019, s 3 and Sch 2 item 25, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
215-40(2)
The Chief Executive Officer of *TEQSA may, in writing, delegate his or her powers and functions under the *Regulatory Powers Act as it applies in relation to this Act, to a member of the staff of TEQSA (within the meaning of the *TEQSA Act) who is:
(a)
an SES employee or an acting SES employee; or
(b)
an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position.
215-40(3)
A person exercising powers or performing functions under a delegation under subsection (1) or (2) must comply with any directions of the delegator.
History
S 215-40 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-45
Contravening offence and civil penalty provisions
215-45(1)
This section applies if a provision of this Act provides that a person contravening another provision of this Act (the
conduct provision
) commits an offence or is liable to a civil penalty.
215-45(2)
For the purposes of this Act, and the *Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a *civil penalty provision includes a reference to a contravention of the conduct provision.
History
S 215-45 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-50
215-50
Certain references to higher education provider include references to agent
A reference in a *civil penalty provision in this Act to a higher education provider includes a reference to a person acting on behalf of the provider.
History
S 215-50 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
SECTION 215-55
215-55
Other enforcement action
To avoid doubt, taking action under this Part does not limit the taking of action under any other provision of this Act.
History
S 215-55 inserted by No 83 of 2017, s 3 and Sch 3 item 37, effective 17 August 2017.
Chapter 6 - The provision of higher education in the external Territories
History
Ch 6 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012.
Division 217 - Introduction
History
Div 217 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012.
SECTION 217-1
217-1
What this Chapter is about
(Repealed by No 74 of 2011)
History
S 217-1 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 217-1 formerly read:
SECTION 217-1 What thisChapter is about
217-1
This Chapter primarily provides for approval of universities, self-accrediting entities and non self-accrediting entities to operate in external Territories, and for accreditation of courses of study in those Territories.
S 217-1 substituted by No 72 of 2007, s 3 and Sch 1 item 25, effective 31 December 2007. S 217-1 formerly read:
SECTION 217-1 What this Chapter is about
217-1
This Chapter primarily provides for approval as self-accrediting entities and for accreditation of courses of study in external Territories.
SECTION 217-5
217-5
The Higher Education in External Territories Guidelines
(Repealed by No 74 of 2011)
History
S 217-5 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 217-5 formerly read:
SECTION 217-5 The Higher Education in External Territories Guidelines
217-5
Matters relating to the provision of higher education in the external Territories are also dealt with in the Higher Education in External Territories Guidelines.
Note:
The Higher Education in External Territories Guidelines are made by the Minister under section 238-10.
S 217-5 inserted by No 121 of 2006, s 3 and Sch 8 item 1, effective 4 November 2006.
PART 6-1 - APPROVAL AND ACCREDITATION
History
Pt 6-1 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012.
Division 222 - Introduction
History
Div 222 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012.
SECTION 222-1
222-1
What this Part is about
(Repealed by No 74 of 2011)
History
S 222-1 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012.
SECTION 222-1 What thisPart is about
222-1
Certain persons (other than natural persons) may apply for approval to operate in an external Territory as a university, as a self-accrediting entity, or as a non self-accrediting entity.
All courses of study offered in an external Territory that an approved person is not authorised to accredit must be accredited by the Minister.
Persons (including natural persons) who do not have approval or accreditation under this Part may commit an offence if they operate as a university or other provider, offer higher education awards or describe themselves as universities, in an external Territory.
S 222-1 substituted by No 72 of 2007, s 3 and Sch 1 item 26, effective 31 December 2007. S 222-1 formerly read:
SECTION 222-1 What this Part is about
222-1
Certain persons (other than natural persons) in the external Territories may apply for approval as self-accrediting entities, or for the accreditation of courses of study that they propose to offer.
Persons who do not have approval or accreditation under this Part may be guilty of an offence if they operate as a university or other provider, offer higher education awards or describe themselves as universities.
Division 225 - How does a person obtain approval and accreditation?
History
Div 225 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012.
SECTION 225-1
225-1
Application for approval and accreditation
(Repealed by No 74 of 2011)
History
S 225-1 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 225-1 formerly read:
SECTION 225-1 Application for approval and accreditation
225-1(1)
A person (other than a natural person) who wishes to *operate in an external Territory as a university or other provider of *courses of study leading to *higher education awards, may apply in writing to the Minister:
(a)
for any of the following:
(i)
approval to operate as a university in relation to that Territory;
(ii)
approval to operate as a self-accrediting entity in relation to that Territory;
(iii)
approval to operate as a non self-accrediting entity in relation to that Territory; and
(b)
for accreditation, in relation to that Territory, of courses of study leading to higher education awards that the person proposes to offer in that Territory and is not authorised by a *government accreditation authority to accredit.
Note:
Division 228 contains offences for persons who operate as a university or other provider, offer higher education awards or describe themselves as universities, in an external Territory, without approval or accreditation under this Part.
History
S 225-1(1) substituted by No 72 of 2007, s 3 and Sch 1 item 27, effective 31 December 2007. S 225-1 formerly read:
225-1(1)
A person (other than a natural person) who:
(a)
is not a *listed self-accrediting entity; and
(b)
wishes to *operate in an external Territory as a *university or other provider of *courses of study leading to *higher education awards;
must apply in writing to the Minister either:
(c)
for approval of the person as a self-accrediting entity in relation to that Territory; or
(d)
for accreditation, in relation to that Territory, of each course of study it proposes to *offer.
225-1(2)
An application under this section:
(a)
must be in the form approved by the Minister; and
(b)
must be accompanied by the information (if any) specified in the Higher Education in External Territories Guidelines.
History
S 225-1(2) inserted by No 121 of 2006, s 3 and Sch 8 items 2 and 3, effective 4 November 2006.
225-1(2A)
The Minister may request an applicant to give the Minister specified additional information to enable the Minister to decide the application.
History
S 225-1(2A) inserted by No 72 of 2007, s 3 and Sch 1 item 28, effective 31 December 2007.
225-1(3)
The Higher Education in External Territories Guidelines may provide for matters relating to applications under this section, including matters relating to either or both of the following:
(a)
requests by the Minister for further information;
(b)
processes and deadlines that applicants must comply with.
History
S 225-1(3) inserted by No 121 of 2006, s 3 and Sch 8 items 2 and 3, effective 4 November 2006.
SECTION 225-3
225-3
Approving a person to operate as a university in relation to an external Territory
(Repealed by No 74 of 2011)
History
S 225-3 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 225-3 formerly read:
SECTION 225-3 Approving a person to operate as a university in relation to an external Territory
225-3(1)
The Minister may approve a person to operate as a university in relation to an external Territory if:
(a)
the person applies for approval, under section 225-1, to operate as a university; and
(b)
the Minister is satisfied, following an assessment made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, that it is appropriate to approve the person to operate as a university in relation to the external Territory; and
(c)
the person's principal purpose is either or both of the following:
(i)
to provide education;
(ii)
to conduct research.
Note:
Refusal to approve a person to operate as a university is reviewable under Part 5-7.
225-3(2)
If the Minister approves a person to operate as a university in relation to an external Territory under subsection (1), he or she may, having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, approve the person's use of:
(a)
the word "university"; or
(b)
the words "university college"; or
(c)
any like word or words;for the purpose of:
(d)
identifying the person in the person's *operation in the external Territory; or
(e)
identifying the person's operation in the external Territory.
S 225-3 inserted by No 72 of 2007, s 3 and Sch 1 item 29, effective 31 December 2007.
SECTION 225-5
225-5
Approving a person to operate as a self-accrediting entity in relation to an external Territory
(Repealed by No 74 of 2011)
History
S 225-5 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 225-5 formerly read:
SECTION 225-5 Approving a person to operate as a self-accrediting entity in relation to an external Territory
225-5(1)
The Minister may approve a person to operate as a self-accrediting entity in relation to an external Territory if:
(a)
the person applies for approval, under section 225-1, to operate as a self-accrediting entity in relation to that Territory; and
(b)
the Minister is satisfied, following an assessment made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, that it is appropriate that the person be authorised to accredit *courses of study leading to *higher education awards in relation to that Territory; and
(c)
the person's principal purpose is either or both of the following:
(i)
to provide education;
(ii)
to conduct research.
Note:
Refusal to approve a person to operate as a self-accrediting entity is reviewable under Part 5-7.
225-5(2)
The Minister must, having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, specify in the approval:
(a)
whether the person's authority to accredit *courses ofstudy leading to *higher education awards in relation to that Territory is limited in any way; and
(b)
the nature of any such limitation.
Note 1:
An authority may be limited, for example, by reference to a field of study or level of qualification.
Note 2:
A decision to limit an authority is reviewable under Part 5-7.
Minister may accredit courses that person is not authorised to self-accredit
225-5(3)
If the Minister proposes to:
(a)
approve under subsection (1) a person to operate as a self-accrediting entity in relation to an external Territory; and
(b)
limit under subsection (2) the person's authority to accredit *courses of study leading to *higher education awards in relation to that Territory;the Minister may, when approving that person, accredit any course of study, in relation to that Territory, that the person proposes to offer in that Territory but would not be authorised to accredit because of that limitation.
225-5(4)
The Minister may only accredit a *course of study under subsection (3) in relation to an external Territory if the Minister is satisfied, following an assessment made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, that the course, and the way of delivering it, are appropriate to the award.
Note:
A decision not to accredit a course of study under subsection (3) is reviewable under Part 5-7.
S 225-5 substituted by No 72 of 2007, s 3 and Sch 1 item 30, effective 31 December 2007. S 225-5 formerly read:
SECTION 225-5 Approving a person as a self-accrediting entity
225-5
The Minister may approve a person as a self-accrediting entity in relation to an external Territory if:
(a)
the person applies for approval, under section 225-1, as a self-accrediting entity in relation to that Territory; and
(b)
the Minister is satisfied, following an assessment made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, that it is appropriate that the person be empowered to issue its own qualifications; and
(c)
the person's principal purpose is either or both of the following:
(i)
to provide education;
(ii)
to conduct research.
Note:
Refusal to approve a person as a self-accrediting entity is reviewable under Part 5-7.
S 225-5 amended by No 121 of 2006, s 3 and Sch 8 item 4, by inserting "and any matters set out in the Higher Education in External Territories Guidelines" after "Protocols" in para (b), effective 4 November 2006.
SECTION 225-7
225-7
Approving a person to operate as a non self-accrediting entity in relation to an external Territory
(Repealed by No 74 of 2011)
History
S 225-7 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 225-7 formerly read:
SECTION 225-7 Approving a person to operate as a non self-accrediting entity in relation to an external Territory
225-7
The Minister may approve a person to operate as a non self-accrediting entity in relation to an external Territory if:
(a)
the person applies under subsection 225-1 for:
(i)
approval to operate as a non self-accrediting entity in relation to that Territory; or
(ii)
approval to operate as a self-accrediting entity in relation to that Territory; and
(b)
the Minister is satisfied, following an assessment made having regard to the *National Protocols and the Higher Education in External Territories Guidelines, that:
(i)
if subparagraph (a)(ii) applies - it would not be appropriate to authorise the person to accredit any *courses of study leading to *higher education awards in relation to that Territory; and
(ii)
in any case - it is appropriate that the person be authorised to offer courses of study leading to higher education awards in relation to that Territory; and
(c)
the person's principal purpose is either or both of the following:
(i)
to provide education;
(ii)
to conduct research.
Note:
Refusal to approve a person to operate as a non self-accrediting entity, or a decision to approve a person to operate as a non self-accrediting entity on application for approval to operate as a self-accrediting entity, is reviewable under Part 5-7.
S 225-7 inserted by No 72 of 2007, s 3 and Sch 1 item 31, effective 31 December 2007.
SECTION 225-10
225-10
Accrediting a course of study
(Repealed by No 74 of 2011)
History
S 225-10 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 225-10 formerly read:
SECTION 225-10 Accrediting a course of study
225-10
The Minister may accredit a particular *course of study, in relation to an external Territory, as a course of study leading to a *higher education award if:
(a)
the person applies, under section 225-1, for accreditation of that course in relation to that Territory; and
(b)
the Minister is satisfied, following an assessment made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, that the course, and the way of delivering it, are appropriate to the award.
(c)
(Repealed by No 72 of 2007)
S 225-10 amended by No 72 of 2007, s 3 and Sch 1 items 32 and 33, by substituting "award." for "award; and" in para (b) and repealing para (c), effective 31 December 2007. Para (c) formerly read:
(c)
the person's principal purpose is either or both of the following:
(i)
to provide education;
(ii)
to conduct research.
Note:
Refusal to accredit a course of study is reviewable under Part 5-7.
S 225-10 amended by No 121 of 2006, s 3 and Sch 8 item 4, by inserting "and any matters set out in the Higher Education in External Territories Guidelines" after "Protocols" in para (b), effective 4 November 2006.
SECTION 225-15
225-15
Duration of approval and accreditation
(Repealed by No 74 of 2011)
History
S 225-15 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 225-15 formerly read:
SECTION 225-15 Duration of approval and accreditation
225-15
An approval or accreditation under this Part:
(a)
remains in force for the period that the Minister determines; and
(b)
is subject to any conditions that the Minister imposes.
Note:
A decision determining a period during which an approval or accreditation remains in force, or imposing conditions on an approval or accreditation, is reviewable under Part 5-7.
S 225-15 substituted by No 72 of 2007, s 3 and Sch 1 item 34, effective 31 December 2007. S 225-15 formerly read:
SECTION 225-15 Duration of approval and accreditation
225-15(1)
An approval of a person as a self-accrediting entity by the Minister under section 225-5:
(a)
remains in force for the period that the Minister determines; and
(b)
is subject to any conditions that the Minister imposes.
225-15(2)
An accreditation of a particular *course of study by the Minister under section 225-10:
(a)
remains in force for the period that the Minister determines; and
(b)
is subject to any conditions that the Minister imposes.
SECTION 225-20
225-20
Amending or revoking an approval, authorisation or accreditation in relation to an external Territory
(Repealed by No 74 of 2011)
History
S 225-20 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 225-20 formerly read:
SECTION 225-20 Amending or revoking an approval, authorisation or accreditation in relation to an external Territory
Amending or revoking an approval to operate as a university
225-20(1)
The Minister may amend or revoke an approval of a person under section 225-3 to operate as a university in relation to an external Territory at any time if the Minister is satisfied that:
(a)
the person has breached a condition to which the person's approval is subject; or
(b)
following a reassessment of the person's approval made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, the person's circumstances have so changed that it is no longer appropriate that the person be approved to operate as a university in relation to that Territory; or
(c)
the person's circumstances have changed so that it no longer satisfies paragraph 225-3(1)(c).
Note:
Amendment or revocation of an approval is reviewable under Part 5-7.
Amending or revoking an approval to use a word or words
225-20(2)
The Minister may amend or revoke an approval for a person under section 225-3 to use a word or words in relation to an external Territory at any time if the Minister is satisfied that:
(a)
the person has breached a condition to which the person's approval was subject; or
(b)
following a reassessment of the person's approval made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, it is not appropriate for the person to use the word or words in relation to that Territory; or
(c)
the person's approval under section
225-3 to operate as a university in relation to that Territory has been amended or revoked.
Note:
Amendment or revocation of an approval is reviewable under Part 5-7.
Amending or revoking an approval to operate as a self-accrediting entity
225-20(3)
The Minister may amend or revoke an approval of a person under section
225-5 to operate as a self-accrediting entity in relation to an external Territory at any time if the Minister is satisfied that:
(a)
the person has breached a condition to which the person's approval is subject; or
(b)
following a reassessment of the person's approval made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, the person's circumstances have so changed that:
(i)
it is no longer appropriate that the person be authorised to accredit any courses of study in relation to that Territory; or
(ii)
it is no longer appropriate that the person be authorised to accredit one or more of the courses that it is currently authorised to accredit in relation to that Territory; or
(c)
the person's circumstances have changed so that it no longer satisfies paragraph 225-5(1)(c).
Note:
Amendment or revocation of an approval is reviewable under Part 5-7.
Amending or revoking an approval to operate as a non self-accrediting entity
225-20(4)
The Minister may amend or revoke an approval of a person under section
225-7 to operate as a non self-accrediting entity in relation to an external Territory at any time if the Minister is satisfied that:
(a)
the person has breached a condition to which the person's approval is subject; or
(b)
following a reassessment of the person's approval made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, the person's circumstances have so changed that it is no longer appropriate that the person be approved to operate as a non self-accrediting entity in relation to that Territory; or
(c)
the person's circumstances have changed so that it no longer satisfies paragraph
225-7(c).
Note:
Amendment or revocation of an approval is reviewable under Part 5-7.
Amending or revoking an accreditation of a course of study
225-20(5)
The Minister may amend or revoke an accreditation of a *course of study under section
225-5 or
225-10 in relation to an external Territory at any time if the Minister is satisfied that:
(a)
the person *offering the course has breached a condition to which the accreditation is subject; or
(b)
following a reassessment of the accreditation made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines, the content of, or manner of providing, the course has so changed that it is no longer appropriate to the award; or
(c)
the person's approval under section
225-5 or
225-7 has been amended or revoked.
Note:
Amendment or revocation of an accreditation is reviewable under Part 5-7.
Amending or revoking an approval or accreditation because false or misleading information provided in application
225-20(6)
The Minister may amend or revoke an approval or accreditation under this Part at any time if the Minister is satisfied that information given by a person in relation to an application under section
225-1 for that approval or accreditation was false or misleading.
Note:
Amendment or revocation of an accreditation is reviewable under Part 5-7.
S 225-20 substituted by No 72 of 2007, s 3 and Sch 1 item 35, effective 31 December 2007. S 225-20 formerly read:
SECTION 225-20 Amending or revoking an approval or accreditation
225-20(1)
The Minister may amend or revoke an approval of a person, under section 225-5, as a self-accrediting entity in relation to an external Territory at any time if the Minister is satisfied that:
(a)
the person has breached a condition to which the person's approval is subject; or
(b)
following a reassessment of the person's approval made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines - the person's circumstances have so changed that it is no longer appropriate that the person be empowered to issue its own qualifications; or
(c)
the person's circumstances have changed so that it no longer satisfies paragraph 225-5(c).
Note:
Amendment or revocation of an approval is reviewable under Part 5-7.
History
S 225-20(1) amended by No 121 of 2006, s 3 and Sch 8 item 4, by inserting "and any matters set out in the Higher Education in External Territories Guidelines" after "Protocols" in para (b), effective 4 November 2006.
225-20(2)
The Minister may amend or revoke an accreditation of a *course of study under section
225-10, in relation to an external Territory, as a course of study leading to a *higher education award at any time if the Minister is satisfied that:
(a)
the person *offering the course has breached a condition to which the course accreditation is subject; or
(b)
following a reassessment of the course accreditation made having regard to the *National Protocols and any matters set out in the Higher Education in External Territories Guidelines - the content of, or manner of providing, the course has so changed that it is no longer appropriate to the award; or
(c)
the person's circumstances have changed so that it no longer satisfies paragraph
225-10(c).
Note:
Amendment or revocation of an accreditation is reviewable under Part 5-7.
History
S 225-20(2) amended by No 121 of 2006, s 3 and Sch 8 item 4, by inserting "and any matters set out in the Higher Education in External Territories Guidelines" after "Protocols" in para (b), effective 4 November 2006.
SECTION 225-25
225-25
Fees
(Repealed by No 74 of 2011)
History
S 225-25 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 225-25 formerly read:
SECTION 225-25 Fees
225-25(1)
The Higher Education in External Territories Guidelines may:
(a)
set out fees to be paid in respect of applications made under section 225-1; and
(b)
for that purpose, take into account such costs as are directly or indirectly incurred by, or in assisting, the Minister to make a decision on such an application; and
(c)
set out the manner and times of payment of such fees.
History
S 225-25(1) amended by No 121 of 2006, s 3 and Sch 8 items 5 and 6, by substituting "The Higher Education in External Territories Guidelines" for "The regulations" and substituting "set out" for "prescribe" in para (a), effective 4 November 2006.
225-25(2)
A person making an application under section 225-1 must pay such fees as are provided for in the Higher Education in External Territories Guidelines at such times as the Guidelines provide.
History
S 225-25(2) amended by No 121 of 2006, s 3 and Sch 8 items 7 and 8, by substituting "in the Higher Education in External Territories Guidelines" for "in the regulations" and substituting "as the Guidelines" for "as the regulations", effective 4 November 2006.
Division 228 - Limitations upon operations of certain persons in the external Territories
History
Div 228 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012.
SECTION 228-1
228-1
Persons without approval not to operate as universities or other provider in external Territories
(Repealed by No 74 of 2011)
History
S 228-1 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 228-1 formerly read:
SECTION 228-1 Persons without approval not to operate as universities or other provider in external Territories
228-1(1)
A person commits an offence if:
(a)
the person *operates, or purports to operate:
(i)
as a university, or a part of a university, providing *courses of study leading to *higher education awards; or
(ii)
as another provider of courses of study leading to higher education awards; and
(b)
the operation or purported operation is in an external Territory; and
(c)
the person is not:
(i)
an *Australian university; or
(ii)
a *self-accrediting entity; or
(iii)
approved to operate in that Territory by the Minister under section 225-3 or 225-7.
(d)
(Repealed by No 72 of 2007)
History
S 228-1(1) amended by No 72 of 2007, s 3 and Sch 1 items 36 and 37, by substituting "university" for "*university" in para (a)(i) and substituting para (c) for paras (c) and (d), effective 31 December 2007. Paras (c) and (d) formerly read:
(c)
the person is not:
(i)
a *listed self-accrediting entity; or
(ii)
approved by the Minister under section 225-5 as a self-accrediting entity in relation to that Territory; and
(d)
any course *offered by the person is not accredited by the Minister under section 225-10 in relation to that Territory.
Penalty: 40 penalty units.
228-1(2)
A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of conviction for the offence or any later day) during which the contravention continues.
History
S 228(2) substituted by No 72 of 2007, s 3 and Sch 1 item 38, effective 31 December 2007. S 228(2) formerly read:
228(2)
For the purposes of an offence against subsection (1), strict liability applies:
(a)
to the circumstance in subparagraph (1)(c)(ii) that the power of approval is under section 225-5; and
(b)
to the circumstance in paragraph (1)(d) that the power of accreditation is under section 225-10.
SECTION 228-5
228-5
Persons without accreditation not to offer higher education awards or courses in external Territories
(Repealed by No 74 of 2011)
History
S 228-5 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 228-5 formerly read:
SECTION 228-5 Persons without accreditation not to offer higher education awards or courses in external Territories
228-5(1)
A person commits an offence if:
(a)
the person *offers, or purports to offer, the whole or a part of a *course of study leading to a *higher education award; and
(b)
the offer, or purported offer, is in an external Territory; and
(c)
the person is not an *Australian university or approved under section 225-3 to operate in relation to that Territory as a university; and
(d)
if the person is a *self-accrediting entity - the person is not authorised by a *government accreditation authority to accredit the course; andt
(e)
the course is not accredited by the Minister under section 225-5 or 225-10 in relation to that Territory.
History
S 228-5(1) amended by No 72 of 2007, s 3 and Sch 1 items 39 and 40, by inserting "the whole or a part of" after "offer," in para (a) and substituting paras (c), (d) and (e) for paras (c) and (d), effective 31 December 2007. Paras (c) and (d) formerly read:
(c)
the person is not:
(i)
a *listed self-accrediting entity; or
(ii)
approved by the Minister under section 225-5 as a self-accrediting entity in relation to that Territory; and
(d)
he course is not accredited by the Minister under section 225-10 in relation to that Territory.
Penalty: 40 penalty units.
228-5(2)
A person commits an offence if:
(a)
the person *offers, or purports to offer, a *higher education award; and
(b)
the offer, or purported offer, is in an external Territory; and
(c)
the person is not an *Australian university; and
(d)
the offer, or purported offer, of the award is not dependent on the successful completion of a *course of study leading to a higher education award.
History
S 228-5(2) amended by No 72 of 2007, s 3 and Sch 1 item 41, by substituting paras (c) and (d), effective 31 December 2007. Paras (c) and (d) formerly read:
(c)
the person is not:
(i)
a *listed self-accrediting entity; or
(ii)
approved by the Minister under section 225-5 as a self-accrediting entity in relation to that Territory; and
(d)
the offer, or purported offer, of the award is not dependent on the successful completion of a *course of study accredited by the Minister under section 225-10 in relation to that Territory as a course leading to that award.
Penalty: 40 penalty units.
228-5(3)
A person who contravenes subsection (1) or (2) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
History
S 228-5(3) substituted by No 72 of 2007, s 3 and Sch 1 item 42, effective 31 December 2007. S 228-5(3) formerly read:
228-5(3)
For the purposes of an offence against subsection (1) or (2), strict liability applies:
(a)
to the circumstance in subparagraph (1)(c)(ii) or (2)(c)(ii), as the case requires, that the power of approval is under section 225-5; and
(b)
to the circumstance in paragraph (1)(d) or (2)(d), as the case requires, that the power of accreditation is under section 225-10.
SECTION 228-10
228-10
Persons without accreditation not to describe themselves as universities in external Territories
(Repealed by No 74 of 2011)
History
S 228-10 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 228-10 formerly read:
SECTION 228-10 Persons without accreditation not to describe themselves as universities in external Territories
228-10(1)
A person commits an offence if:
(a)
the person uses the word "university", "university college" or any like words (whether or not in combination with other words):
(i)
to identify the person in the person's operation or purported operation in an external Territory; or
(ii)
to identify the person's operation or purported operation in an external Territory; and
(b)
the person, or the person's operation or purported operation, as so identified, is not an *Australian university; and
(c)
the Minister has not approved the use of that word or those words under subsection 225-3(2) or section 233-1 in relation to that Territory.
History
S 228-10(1) amended by No 72 of 2007, s 3 and Sch 1 item 43, by substituting paras (b) and (c), effective 31 December 2007. Paras (b) and (c) formerly read:
(b)
the person, or the person's operation or purported operation, as so identified, is not:
(i)
a *listed self-accrediting entity; or
(ii)
approved by the Minister under section 225-5 as a self-accrediting entity in relation to that Territory; and
(c)
he Minister has not approved the use of that word or those words:
(i)
to identify the person in the person's operation or purported operation in that external Territory; or
(ii)
to identify the person's operation or purported operation in that external Territory.
Penalty: 40 penalty units.
228-10(2)
A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
History
S 228-10(2) substituted by No 72 of 2007, s 3 and Sch 1 item 44, effective 31 December 2007. S 228-10(2) formerly read:
228-10(2)
For the purposes of an offence against subsection (1), strict liability applies to the circumstance in subparagraph (1)(b)(ii) that the power of approval is under section 225-5.
SECTION 228-15
228-15
Meanings of operating and offering
(Repealed by No 74 of 2011)
History
S 228-15 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 228-15 formerly read:
SECTION 228-15 Meanings of operating and offering
228-15(1A)
A reference to a person
operating
, or purporting to operate, in an external Territory:
(a)
as a university, or part of a university, providing *courses of study leading to *higher education awards; or
(b)
as another provider of courses of study leading to higher education awards;includes a reference to a person:
(c)
offering, providing, or conducting a business of offering or providing:
(i)
the whole or a part of such courses of study in relation to that Territory; or
(ii)
such awards in relation to that Territory; or
(d)
using premises for the purposes of operating as such a provider in relation to that Territory.
History
S 228-15(1A) inserted by No 72 of 2007, s 3 and Sch 1 item 46, effective 31 December 2007.
228-15(1)
A reference to a person operating, or purporting to operate, in an external Territory:
(a)
as a university, or part of a university, providing *courses of study leading to *higher education awards; or
(b)
as another provider of courses of study leading to higher education awards; includes a reference to a person operating, or purporting to operate, as such a university, part of a university or other provider in or from that Territory by any of the following means:
(c)
a computer adapted for communicating by way of the internet or another communications network;
(ca)
a postal or other like service;
(d)
a television receiver adapted to allow the viewer to transmit information by way of a cable television network or other communications network;
(e)
a telephone;
(f)
any other electronic device.
History
S 228-15(1) amended by No 8 of 2010, s 3 and Sch 5 item 137, by substituting "internet" for "Internet" (wherever occurring), effective 1 March 2010.
S 228-15(1) amended by No 72 of 2007, s 3 and Sch 1 items 45, 47 and 48, by substituting "university" for "*university" in para (a), substituting "by any of the following means" for "by means of any of the following telecommunications devices" in para (b) and inserting para (ca), effective 31 December 2007
228-15(2)
A reference to a person offering, or purporting to offer, in an external Territory, *courses of study leading to *higher education awards, includes a reference to such a person offering, or purporting to offer, such courses in or from that Territory by any of the means referred to in subsection (1).
History
S 228-15(2) amended by No 72 of 2007, s 3 and Sch 1 item 49, by substituting "by any of the means" for "by means of any of the telecommunication devices", effective 31 December 2007.
PART 6-2 - USE OF COMPANY NAMES AND BUSINESS NAMES
History
Pt 6-2 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012.
Division 233 - Use of company names and business names
History
Div 233 repealed by No 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012.
SECTION 233-1
233-1
Law in force in external Territory not to allow company or business names using the word "university" etc.
(Repealed by No 74 of 2011)
History
S 233-1 repealed byNo 74 of 2011, s 3 and Sch 2 item 21, effective 29 January 2012. S 233-1 formerly read:
SECTION 233-1 Law in force in external Territory not to allow company or business names using the word "university" etc.
233-1
Despite any provision of a law in force in an external Territory that regulates the use of company names or business names in that Territory:
(a)
registration, or purported registration of; or
(b)
authorisation, or purported authorisation of;
any company name or business name that uses the word "university", "university college" or any like words is of no effect unless the Minister has given written approval for the use of that name.
Chapter 7 - Miscellaneous
SECTION 238-1A
Giving false or misleading information
238-1A(1)
A person contravenes this subsection if:
(a)
a person gives information or a document under, or for the purposes of, this Act; and
(b)
the information or document:
(i)
is false or misleading; or
(ii)
omits any matter or thing without which the information or document is misleading.
Civil penalty: 60 penalty units.
238-1A(2)
Subsection (1) does not apply if the information or document is not false or misleading in a material particular.
History
S 238-1A inserted by No 83 of 2017, s 3 and Sch 3 item 38, effective 17 August 2017.
SECTION 238-1
Delegations by Secretary
238-1(1)
The *Secretary may, in writing, delegate to an APS employee all or any of the powers of the Secretary under this Act, the regulations or any Guidelines made under section 238-10.
History
S 238-1(1) amended by No 160 of 2012, s 3 and Sch 4 item 2, by omitting "in the Department" after "APS employee", effective 1 January 2013.
238-1(2)
The *Secretary may, in writing, delegate to a *review officer of a higher education provider the Secretary's powers under Division 209 to reconsider *reviewable decisions made by the provider:
(a)
under subsection 36-12(2) or 36-20(1); or
(b)
relating to Chapter 3.
History
S 238-1(2) amended by No 89 of 2023, s 3 and Sch 1 item 16, by substituting "or" for ", paragraph 36-13(2)(b) or subsection" in para (a), effective 1 January 2024.
S 238-1(2) amended by No 93 of 2020, s 3 and Sch 4 item 40C, by substituting para (a), effective 1 January 2022. Para (a) formerly read:
(a)
under subsection 36-12(2) or 36-20(1); or
S 238-1(2) amended by No 93 of 2020, s 3 and Sch 4 item 36, by substituting para (a), effective 1 January 2021. Para (a) formerly read:
(a)
under section 36-20; or
S 238-1(2) amended by No 104 of 2011, s 3 and Sch 2 item 24, by substituting "36-20" for "36-22" in para (a), 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.
238-1(2A)
The *Secretary may, in writing, delegate to a *review officer of *Open Universities Australia the Secretary's powers under Division 209 to reconsider *reviewable decisions made by Open Universities Australia relating to Chapter 3.
238-1(2B)
A review officer of *Open Universities Australia is a person, or a person included in a class of persons, whom:
(a)
the chief executive officer of Open Universities Australia; or
(b)
a delegate of the chief executive officer of Open Universities Australia;
has appointed to be a review officer of Open Universities Australia for the purposes of reviewing decisions made by it relating to assistance under Chapter 3.
238-1(3)
In exercising powers under the delegation, the delegate must comply with any directions of the *Secretary.
SECTION 238-5
Delegations by Minister
238-5(1)
The Minister may, by writing, delegate to:
(a)
the *Secretary; or
(aa)
the *Higher Education Tuition Protection Director; or
(b)
an APS employee in the Department;
all or any of the Minister's powers under this Act (other than under section 38-45, 41-45 or 46-40).
History
S 238-5(1) amended by No 101 of 2020, s 3 and Sch 2 item 64, by substituting "*Higher Education Tuition Protection Director" for "*HELP Tuition Protection Director" in para (aa), effective 1 January 2021.
S 238-5(1) amended by No 111 of 2019, s 3 and Sch 2 item 26, by inserting para (aa), effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
S 238-5(1) amended by No 74 of 2016, s 3 and Sch 1 item 11, by substituting "38-45, 41-45 or" for "41-45 or section", effective 1 January 2017.
S 238-5(1) amended by No 160 of 2012, s 3 and Sch 4 item 3, by omitting "in the Department" after "an APS employee" in para (b), effective 1 January 2013.
S 238-5(1) amended by No 156 of 2012, s 3 and Sch 1 item 8, by inserting "(other than under section 41-45 or section 46-40)", effective 18 November 2012.
238-5(2)
In exercising powers under the delegation, the delegate must comply with any directions of the Minister.
SECTION 238-6
Delegations by Higher Education Tuition Protection Director
238-6(1)
The *Higher Education Tuition Protection Director may, in writing, delegate all or any of the Director's functions or powers under this Act (other than paragraphs 167-20(1)(e) and (ea) and Part 5-8) or the *TEQSA Act (other than Division 5 of Part 7 of that Act) to an APS employee who holds or performs the duties of an APS Level 6 position, or an equivalent or higher position, in the Department.
Note 1:
Paragraphs 167-20(1)(e) and (ea) give the Higher Education Tuition Protection Director the functions of making a legislative instrument under section 13 of the Higher Education Support (HELP Tuition Protection Levy) Act 2020 and section 13 of the Higher Education (Up-front Payments Tuition Protection Levy) Act 2020.
Note 2:
Paragraph 167-20(1)(g) of this Act gives the Higher Education Tuition Protection Director certain functions in relation to tuition protection under the TEQSA Act.
238-6(2)
Before delegating a function or power under subsection (1), the Higher Education Tuition Protection Director must have regard to:
(a)
if the function or power is delegated to an APS employee holding, occupying, or performing the duties of, a specified office or position - whether the office or position is sufficiently senior for the employee to perform the function or exercise the power; or
(b)
otherwise - whether the employee has appropriate qualifications or expertise to perform the function or duty or exercise the power.
238-6(3)
In performing functions or exercising powers under the delegation, the delegate must comply with any directions of the *Higher Education Tuition Protection Director.
History
S 238-6 substituted by No 101 of 2020, s 3 and Sch 2 item 65, effective 1 January 2021. For saving provision, see note under s 215-40(1A). S 238-6 formerly read:
SECTION 238-6 Delegations by HELP Tuition Protection Director
238-6(1)
The *HELP Tuition Protection Director may, in writing, delegate all or any of the Director's functions or powers under this Act (other than paragraph 167-20(1)(e)) to an APS employee who holds or performs the duties of an APS Level 6 position, or an equivalent or higher position, in the Department.
Note:
Paragraph 167-20(1)(e) gives the HELP Tuition Protection Director the function of making a legislative instrument under section 12 of the Higher Education Support (HELP Tuition Protection Levy) Act 2019.
238-6(2)
In exercising powers or performing functions under the delegation, the delegate must comply with any directions of the *HELP Tuition Protection Director.
S 238-6 inserted by No 111 of 2019, s 3 and Sch 2 item 27, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
SECTION 238-7
Review of operation of tuition protection
238-7(1)
Before 1 July 2021, the Minister must commence a review of the operation of Parts 5-1A (about tuition protection) and 5-1B (about the *Higher Education Tuition Protection Fund and related matters).
Note:
The review must be conducted at the same time as a review of the operation of Parts 5 and 5A of the Education Services for Overseas Students Act 2000 and of Parts 5A and 5B of the VET Student Loans Act 2016 (see section 113A of the latter Act).
History
S 238-7(1) amended by No 101 of 2020, s 3 and Sch 2 item 66, by substituting "*Higher Education Tuition Protection Fund" for "*HELP Tuition Protection Fund", effective 1 January 2021. No 101 of 2020, s 3 and Sch 2 item 69 contains the following transitional provision:
69 Transitional provision
69
A review under section 238-7 of the Higher Education Support Act 2003 that has commenced but has not been completed before the commencement of this item is taken to be a review that commenced under that section as amended by this Act.
238-7(2)
The Minister must cause to be prepared a report of a review under subsection (1).
238-7(3)
The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the report.
History
S 238-7 substituted by No 111 of 2019, s 3 and Sch 2 item 28, effective 1 January 2020. For application and transitional provisions, see note under s 16-25. S 238-7 formerly read:
SECTION 238-7 Review of impact of Act
238-7
Before 31 December 2006, the Minister must cause a review to be commenced of the impact on the higher education sector of the higher education reforms enacted through this Act.
SECTION 238-8
238-1
Extent of Commissioner's general administration of this Act
The *Commissioner has the general administration of this Act to the following extent:
(a)
Chapter 4, except section 154-30;
(b)
section 179-25;
(c)
section 179-30, so far as it relates to the Commissioner;
(d)
Part 5-5;
(e)
Divisions 206 and 209, so far as they relate to *reviewable decisions for which the Commissioner is the *decision maker;
(f)
clause 76 of Schedule 1A;
(g)
clause 77 of Schedule 1A, so far as that clause relates to the Commissioner;
(h)
Division 15 of Schedule 1A.
Note:
One effect of this is that this Act is to that extent a taxation law for the purposes of the Taxation Administration Act 1953.
History
S 238-8 inserted by No 6 of 2012, s 3 and Sch 2 item 1, effective 7 March 2012.
SECTION 238-10
Guidelines
238-10(1)
The Minister may, by legislative instrument, make Guidelines, specified in the second column of the table, providing for matters:
(a)
required or permitted by the corresponding provision (or a term defined in the Dictionary in Schedule 1 that is required for the purposes of the provision) specified in the third column of the table to be provided; or
(b)
necessary or convenient to be provided in order to carry out or give effect to that provision.
Guidelines
|
Item
|
Guidelines
|
Provision
|
1 |
Administration Guidelines |
section 19-37; section 33-30; section 36-21; Chapter 5 |
2 |
Commonwealth Grant Scheme Guidelines |
Part 2-2 |
3 |
Commonwealth Scholarships Guidelines |
Part 2-4 |
4 |
FEE-HELP Guidelines |
Part 3-3; section 128-20 |
4A |
(Repealed by No 55 of 2016) |
|
5 |
HECS-HELP Guidelines |
Part 3-2 |
6 |
Higher Education Provider Guidelines |
Part 2-1; Division 36; Subdivision 104-A; section 110-5; Parts 5-1A and 5-1B; section 169-17; section 169-18 |
6A |
Indigenous Student Assistance Grants Guidelines |
Part 2-2A |
7 |
OS-HELP Guidelines |
Part 3-4 |
7A |
STARTUP-HELP Guidelines |
Part 3-7 |
8 |
Other Grants Guidelines |
Part 2-3 |
8AA |
HELP Debtor Guidelines (Teachers) |
Part 4-1 |
8AB |
HELP Debtor Guidelines (Health Practitioners) |
Part 4-1 |
8A |
Overseas Debtors Repayment Guidelines |
Part 4-2 |
9 |
(Repealed by No 93 of 2020) |
|
10 |
Student Learning Entitlement Guidelines |
Part 3-1 |
10A |
Student Services, Amenities, Representation and Advocacy Guidelines |
section 19-67 |
11 |
(Repealed by No 93 of 2020) |
|
Note:
The HELP Debtor Guidelines (Teachers) were previously known as the Very Remote HELP Debtor Guidelines.
History
S 238-10(1) amended by No 89 of 2023, s 3 and Sch 1 item 17, by omitting "section 36-13;" after "section 33-30;" from table item 1, effective 1 January 2024.
S 238-10(1) amended by No 36 of 2023, s 3 and Sch 1 items 64 and 65, by substituting "section 169-17; section 169-18" for "section 169-17" in table item 6, column headed "Provision" and inserting table item 7A, effective 29 June 2023.
S 238-10(1) amended by No 3 of 2023, s 3 and Sch 2 items 33-35, by substituting "HELP Debtor Guidelines (Teachers)" for "Very Remote HELP Debtor Guidelines" in cell at table item 8AA, column headed "Guidelines" and inserting table item 8AB and the note, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
S 238-10(1) amended by No 93 of 2020, s 3 and Sch 4B item 11, by inserting table item 10, effective 1 January 2022.
S 238-10(1) amended by No 93 of 2020, s 3 and Sch 4 item 40D, by inserting "section 36-13;" before "section 36-21;" in table item 1, effective 1 January 2022.
S 238-10(1) amended by No 55 of 2021, s 3 and Sch 1 item 11, by omitting "section 96-5;" after "Division 36;" from table item 6, effective 25 June 2021. For application provisions, see note under s 36-24BB.
S 238-10(1) amended by No 93 of 2020, s 3 and Sch 4 item 37, by substituting "Division 36; section 96-5; Subdivision 104-A; section 110-5;" for "section 104-1;" in table item 6, effective 1 January 2021.
S 238-10(1) amended by No 93 of 2020, s 3 and Sch 5 item 10, by repealing table items 9 and 11, effective 28 October 2020. Table items 9 and 11 formerly read:
9 |
Reduction and Repayment Guidelines |
Part 2-5 |
11 |
Tuition Fee Guidelines |
Part 2-2 |
S 238-10(1) amended by No 93 of 2020, s 3 and Sch 2 item 7, by omitting "; section 93-10" after "Part 2-2" in table item 2, effective 28 October 2020.
S 238-10(1) amended by No 93 of 2020, s 3 and Sch 1 items 27-30, by substituting "provision (or a term defined in the Dictionary in Schedule 1 that is required for the purposes of the provision)" for "Chapter, Part or section" in para (a), "provision" for "Chapter, Part or section" in para (b), "
Provision
" in table, heading to column headed "Chapter/Part/section" and inserting "section 33-30;" in table item 1, effective 28 October 2020. For application provisions, see note under s 30-12.
S 238-10(1) amended by No 111 of 2019, s 3 and Sch 2 item 29, by inserting "Parts 5-1A and 5-1B;" in table item 6, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
S 238-10(1) amended by No 103 of 2019, s 3 and Sch 2 item 13, by inserting table item 8AA, effective 1 January 2020.
S 238-10(1) amended by No 103 of 2019, s 3 and Sch 1 item 2, by inserting "; section 128-20" in table item 4, column headed "Chapter/Part/section", effective 1 January 2020.
S 238-10(1) amended by No 83 of 2017, s 3 and Sch 3 item 39, by inserting "; section 104-1; section 169-17" in table item 6, effective 17 August 2017.
S 238-10(1) amended by No 55 of 2016, s 3 and Sch 3 item 14, by repealing table item 4A, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. Table item 4A formerly read:
4A |
HECS-HELP Benefit Guidelines |
Part 4-2 |
S 238-10(1) amended by No 74 of 2016, s 3 and Sch 1 item 12, by inserting table item 6A, effective 1 January 2017.
S 238-10(1) amended by No 154 of 2015, s 3 and Sch 1 item 6, by inserting table item 8A, applicable in relation to the 2016-17 income year and later income years.
S 238-10(1) amended by No 136 of 2012, s 3 and Sch 1 item 64, by substituting "section" for "Section" (wherever occurring) in table item 1, effective 22 September 2012.
S 238-10(1) amended by No 74 of 2011, s 3 and Sch 2 item 22, by repealing table item 6A, effective 29 January 2012. Table item 6A formerly read:
6A |
Higher Education in External Territories Guidelines |
Chapter 6 |
S 238-10(1) amended by No 130 of 2011, s 3 and Sch 1 items 38 and 39, by inserting "Section 19-37" in table item 1, and inserting table item 10A, effective 1 January 2012.
S 238-10(1) amended by No 104 of 2011, s 3 and Sch 2 items 25 and 26, by substituting "Section 36-21; Chapter 5" for "Chapter 5" in table item 1 and repealing table item 10, 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. Table item 10 formerly read:
10 |
Student Learning Entitlement Guidelines |
Part 3-1 |
S 238-10(1) amended by No 43 of 2008, s 3 and Sch 1 item 15, by inserting table item 4A, applicable in respect of the 2008-2009 and later income years.
S 238-10(1) (table) amended by No 121 of 2006, s 3 and Sch 8 item 9, by inserting table item 6A, effective 4 November 2006.
238-10(1A)
The Minister may, by legislative instrument, make Guidelines, called Guidelines for Overseas Higher Education Providers, specifying additional requirements or conditions applicable to *Table C providers.
238-10(2)
The Minister may, by legislative instrument, make Higher Education Provider Guidelines providing for matters required or permitted by the Higher Education Support (HELP Tuition Protection Levy) Act 2019 to be provided by the Higher Education Provider Guidelines.
History
S 238-10(2) inserted by No 111 of 2019, s 3 and Sch 2 item 30, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
Indexation
238-10(3)
Guidelines may provide for the indexation of any or all amounts in the Guidelines, using the method of indexation set out in Part 5-6.
HELP Debtor Guidelines (Health Practitioners)
238-10(4)
The Minister must consult the Treasurer before specifying a kind of health practitioner in the HELP Debtor Guidelines (Health Practitioners) for the purposes of paragraph 144-1(1)(d).
History
S 238-10(4) inserted by No 3 of 2023, s 3 and Sch 2 item 36, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
238-10(5)
Despite subsection 14(2) of the Legislation Act 2003, the HELP Debtor Guidelines (Health Practitioners) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time.
History
S 238-10(5) inserted by No 3 of 2023, s 3 and Sch 2 item 36, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
SECTION 238-12
Appropriation
238-12(1)
Amounts payable by the Commonwealth under this Act are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.
History
S 238-12 amended by No 5 of 2023, s 3 and Sch 1 item 9, by inserting "(1)" before "Amounts", effective 15 March 2023.
238-12(2)
Subsection (1) does not apply in relation to amounts payable in respect of members of the *AEA Advisory Board (see Subdivision 42-B) or priority managers engaged under section 42-75.
History
S 238-12(2) inserted by No 5 of 2023, s 3 and Sch 1 item 10, effective 15 March 2023.
History
S 238-12 inserted by No 170 of 2007, s 3 and Sch 1 item 16, effective 1 January 2008.
SECTION 238-15
238-15
Regulations
The Governor-General may make regulations
prescribing matters:
(a)
required or permitted
by this Act to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Schedule 1A - VET FEE-HELP Assistance Scheme
Note:
See section 6-1.
History
Sch 1A inserted by No 170 of 2007, s 3 and Sch 1 item 17, effective 1 January 2008.
SECTION 1
1
What this Schedule is about
This Schedule provides for loans, called VET FEE-HELP assistance, to be made available to students enrolled in certain vocational education and training (VET) courses.
Note:
VET FEE-HELP assistance will be phased out during 2017 and 2018: see subclauses 6(5) and 43(3) to (7).
History
Cl 1 amended by No 93 of 2017, s 3 and Sch 1 item 12, by substituting "43(3) to (7)" for "43(3) to (5)" in the note, effective 20 September 2017.
Cl 1 amended by No 100 of 2016, s 3 and Sch 1 item 14, by inserting the note, effective 1 January 2017. For transitional provision, see note under s 137-19.
Cl 1 amended by No 14 of 2011, s 3 and Sch 1 item 33, by omitting "accredited" before "vocational education", effective 1 July 2011.
PART 1 - VET providers
Division 1 - Introduction
SECTION 2
2
What this Part is about
A body has to be approved as a VET provider before its students can receive VET FEE-HELP. This Part sets out VET provider application and approval processes.
VET providers are subject to the VET quality and accountability requirements.
As part of the phasing out of VET FEE-HELP assistance, VET provider approvals in force immediately before 1 July 2021 are revoked by clause 29 of this Schedule. However, under that clause, provisions of this Act, the VET Guidelines and conditions on the approvals may continue to apply to a body that had been approved as a VET provider.
Note:
The Minister must not approve a body as a VET provider after 4 October 2016: see subclause 6(5).
History
Pt 1 cl 2 amended by No 17 of 2021, s 3 and Sch 1 item 9, by substituting "As part of the phasing out of VET FEE-HELP assistance, VET provider approvals in force immediately before 1 July 2021 are revoked by clause 29 of this Schedule. However, under that clause, provisions of this Act, the VET Guidelines and conditions on the approvals may continue to apply to a body that had been approved as a VET provider." for "A body's approval as a VET provider may be revoked in circumstances such as breach of a VET quality and accountability requirement.", effective 1 July 2021. For saving provision, see note under Div 5 heading.
Pt 1 cl 2 amended by No 100 of 2016, s 3 and Sch 1 item 15, by inserting the note, effective 1 January 2017. For transitional provision, see note under s 137-19.
SECTION 3
3
The VET Guidelines
*VET providers and the *VET quality and accountability requirements are also dealt with in the *VET Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The VET Guidelines are made by the Minister under clause 99.
History
Pt 1 cl 3 amended by No 160 of 2012, s 3 and Sch 3 items 3 and 4, by omitting "Provider" before "Guidelines" from the section and the note, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Division 3 - What is a VET provider?
Subdivision 3-A - General
SECTION 4
4
Meaning of
VET provider
A
VET provider
is a body that is approved under this Division.
History
Pt 1 cl 4 amended by No 160 of 2012, s 3 and Sch 1 item 1, by omitting "corporate" after "body", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
SECTION 5
When a body becomes or ceases to be a VET provider
5(1)
A body becomes a *VET provider if approved by the Minister under clause 6.
History
Pt 1 cl 5(1) amended by No 160 of 2012, s 3 and Sch 1 item 2, by omitting "corporate" after "body", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
5(2)
A *VET provider ceases to be a provider if the provider's approval is revoked or suspended under Division 5 or the notice of the provider's approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.
History
Pt 1 cl 5(2) amended by No 126 of 2015, s 3 and Sch 1 item 278, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003", effective 5 March 2016.
Pt 1 cl 5(2) amended by No 39 of 2009, s 3 and Sch 2 item 5, by inserting "or the notice of the provider's approval ceases to have effect under Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003" at the end, effective 24 June 2009. For application and transitional provisions, see note under s 16-5(3).
Note:
As part of the phasing out of VET FEE-HELP assistance, VET provider approvals are revoked by clause 29 of this Schedule. However, provisions of this Act, the VET Guidelines and conditions on the approvals, may continue to apply to a body that had been approved as a VET provider: see subclauses 29(2) to (4).
History
Pt 1 cl 5 amended by No 17 of 2021, s 3 and Sch 1 item 10, by inserting the note, effective 1 July 2021. For saving provision, see note under Div 5 heading.
Subdivision 3-B - How are bodies approved as VET providers?
SECTION 6
Approval by the Minister
6(1)
The Minister, in writing, may approve a body as a *VET provider if:
(aa)
the body is a body corporate that is not the trustee of a trust; and
(a)
the body:
(i)
is established under the law of the Commonwealth, a State or a Territory; and
(ii)
carries on business in Australia; and
(iii)
has its central management and control in Australia; and
(b)
subject to subclause (2), providing education is, or is taken to be, the body's principal purpose; and
(c)
the body is a *registered training organisation, as listed on the *National Register, that has been a registered training organisation since at least 1 January 2011; and
(ca)
the body has been offering:
(i)
at least one *qualifying VET course continuously since at least 1 January 2011; or
(ii)
one or more series of qualifying VET courses since at least 1 January 2011, with each course in a series superseding the other without interruption; and
(d)
the body either fulfils the *VET tuition assurance requirements or is exempted from those requirements under clause 8; and
(da)
the body offers at least one *VET course of study; and
(e)
the body applies for approval as provided for in clause 9; and
(f)
the Minister is satisfied that the body is willing and able to meet the *VET quality and accountability requirements; and
(g)
the body complies with any requirements set out in the VET Guidelines; and
(h)
the Minister is satisfied that:
(i)
the body; and
(ii)
each person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body's affairs;
is a fit and proper person.
History
Pt 1 cl 6(1) amended by No 168 of 2015, s 3 and Sch 1 items 2-4, by inserting "that is not the trustee of a trust" in para (aa), substituting para (c) and (ca) for para (c), and "VET Guidelines" for "*VET Guidelines" in para (g), applicable in relation to decisions whether to approve bodies as VET providers made on or after 1 January 2016. Para (c) formerly read:
(c)
the body is a *registered training organisation as listed on the *National Register; and
Pt 1 cl 6(1) amended by No 160 of 2012, s 3 and Sch 3 item 5, by omitting "Provider" after "*VET" in para (g), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 6(1) amended by No 160 of 2012, s 3 and Sch 1 items 2 and 3, by omitting "corporate" after "body" and inserting para (aa), applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
Pt cl 6(1) amended by No 136 of 2012, s 3 and Sch 1 item 65, by substituting "subclause (2)" for "subsection (2)" in para (b), effective 22 September 2012.
Pt 1 cl 6(1) amended by No 72 of 2011, s 3 and Sch 1 item 21, by inserting para (h), applicable in relation to an application for approval made on or after 30 June 2011.
Pt 1 cl 6(1) amended by No 72 of 2011, s 3 and Sch 1 items 19 and 20, by inserting "(1)" before "The Minister" and substituting para (b), applicable in relation to an application for approval made before, on or after 30 June 2011. Para (b) formerly read:
(b)
the body's principal purpose is to provide education; and
Pt 1 cl 6 amended by No 14 of 2011, s 3 and Sch 1 item 34, by substituting para (c), effective 1 July 2011. Para (c) formerly read:
(c)
the body is a registered training organisation as listed on *NTIS; and
Pt 1 cl 6 amended by No 6 of 2010, s 3 and Sch 1 item 2, by substituting "fulfils the *VET tuition assurance requirements" for "fulfilled the *VET tuition assurance requirements on the date of making an application under clause 9", effective 19 February 2010.
Pt 1 cl 6 amended by No 121 of 2009, s 3 and Sch 1 item 3, by omitting "relating to *VET credit transfer arrangements" after "*VET Provider Guidelines" in para (g), applicable in relation to decisions made on or after 7 December 2009 on applications for approval as a VET provider, whether the applications were made before, on or after that commencement.
Pt 1 cl 6 amended by No 39 of 2009, s 3 and Sch 1 item 1, by inserting para (da), applicable to decisions about approvals relating to applications made after 24 June 2009.
Pt 1 cl 6 amended by No 11 of 2008, s 3 and Sch 1 item 1, by inserting para (g) at the end, effective 20 March 2008.
6(1A)
The Minister, in writing, may also approve a body as a *VET provider if:
(a)
the body is of a kind specified in the *VET Guidelines; and
(b)
the body:
(i)
is established under the law of the Commonwealth, a State or a Territory; and
(ii)
carries on business in Australia; and
(iii)
has its central management and control in Australia; and
(c)
subject to subclause (2), providing education is, or is taken to be, the body's principal purpose; and
(d)
the body is a *registered training organisation as listed on the *National Register; and
(da)
the body has been offering:
(i)
at least one *qualifying VET course continuously since at least 1 January 2011; or
(ii)
one or more series of qualifying VET courses since at least 1 January 2011, with each course in a series superseding the other without interruption; and
(e)
the body either fulfils the *VET tuition assurance requirements or is exempted from those requirements under clause 8; and
(f)
the body offers at least one *VET course of study; and
(g)
the body applies for approval as provided for in clause 9; and
(h)
the Minister is satisfied that the body is willing and able to meet the *VET quality and accountability requirements; and
(i)
the body complies with any requirements set out in the VET Guidelines.
History
Pt 1 cl 6(1A) amended by No 168 of 2015, s 3 and Sch 1 item 4A, by inserting para (da), applicable in relation to decisions whether to approve bodies as VET providers made on or after 1 January 2016.
Pt 1 cl 6(1A) inserted by No 160 of 2012, s 3 and Sch 1 item 4, applicable in relation to applications for approval as a VET provider made on or after 1 January 2013. No 160 of 2012, s 3 and Sch 1 items 23 and 24 contain the following application provisions:
23 Specified kind of provider must be approved under subclause 6(1A) of Schedule 1A
23
If a body corporate:
(a)
applied for approval as a VET provider before the commencement of this item; and
(b)
at the time of making the decision on the application, is of a kind specified in the VET Guidelines for the purposes of paragraph 6(1A)(a) of Schedule 1A to the Higher Education Support Act 2003 (as inserted);
then the Minister may approve the body under subclause 6(1A) of Schedule 1A to that Act and must not approve the body under subclause 6(1) of Schedule 1A to that Act.
24 Specified kind of provider taken to be approved under subclause 6(1A) of Schedule 1A
24
If a body corporate was:
(a)
immediately before the commencement of this item, a VET provider; and
(b)
immediately after the commencement of this item, a body of a kind specified in the VET Guidelines for the purposes of paragraph 6(1A)(a) of Schedule 1A to the Higher Education Support Act 2003 (as inserted);
then the body is to be treated (and may be dealt with) as if it had been approved under subclause 6(1A) of Schedule 1A to that Act.
6(2)
For the purpose of paragraph (1)(b) or (1A)(c), the Minister may determine that providing education is taken to be a body's principal purpose if the Minister is satisfied that any of the body's purposes do not conflict with the body's purpose of providing education.
History
Pt 1 cl 6(2) amended by No 160 of 2012, s 3 and Sch 1 item 5, by substituting "paragraph (1)(b) or (1A)(c)" for "paragraph (1)(b)", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
Pt 1 cl 6(2) inserted by No 72 of 2011, s 3 and Sch 1 item 21, applicable in relation to an application for approval made before, on or after 30 June 2011.
6(2A)
For the purposes of (but without limiting) paragraph (1)(g) or (1A)(i), the requirements set out in the *VET Guidelines can include requirements relating to a body's capacity to satisfactorily and sustainably provide *VET courses of study.
Note:
These requirements could, for example, relate to the stability of the body's ownership and management, its experience, its business relationships with particular kinds of educational institutions and its record in providing quality student outcomes.
History
Pt 1 cl 6(2A) inserted by No 168 of 2015, s 3and Sch 1 item 4B, applicable in relation to decisions whether to approve bodies as VET providers made on or after 1 January 2016.
6(3)
The Minister must, in deciding whether he or she is satisfied that a person is a fit and proper person, take into account the matters specified in an instrument under subclause (4). The Minister may take into account any other matters he or she considers relevant.
History
Pt 1 cl 6(3) inserted by No 72 of 2011, s 3 and Sch 1 item 21, applicable in relation to an application for approval made on or after 30 June 2011.
6(4)
The Minister must, by legislative instrument, specify matters for the purposes of subclause (3).
History
Pt 1 cl 6(4) inserted by No 72 of 2011, s 3 and Sch 1 item 21, applicable in relation to an application for approval made on or after 30 June 2011.
6(5)
The Minister must not approve a body as a *VET provider after 4 October 2016.
History
Pt 1 cl 6(5) inserted by No 100 of 2016, s 3 and Sch 1 item 16, effective 1 January 2017. For transitional provision, see note under s 137-19.
SECTION 7
7
The VET tuition assurance requirements
The
VET tuition assurance requirements
are that the body complies with the requirements for VET tuition assurance set out in the *VET Guidelines.
History
Pt 1 cl 7 amended by No 160 of 2012, s 3 and Sch 3 item 6, by omitting "Provider" after "*VET", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 7 amended by No 160 of 2012, s 3 and Sch 1 item 6, by omitting "corporate" after "body", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
SECTION 8
VET tuition assurance requirements exemption for approvals
8(1)
The Minister may, in writing, exempt a body from the *VET tuition assurance requirements for the purposes of approving the body under clause 6.
Note:
This clause only deals with exemptions from the VET tuition assurance requirements when approving bodies as VET providers. The VET Guidelines will deal with exemptions from the VET tuition assurance requirements after approval has happened.
History
Pt 1 cl 8 amended by No 160 of 2012, s 3 and Sch 3 item 7, by omitting "Provider" before "Guidelines" in the note, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 8(1) amended by No 160 of 2012, s 3 and Sch 1 item 7, by omitting "corporate" after "body", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
8(2)
An exemption is subject to such conditions as are specified in the exemption.
Note:
A body will not be exempt if a condition of the exemption is not complied with.
8(3)
An exemption given under this clause is not a legislative instrument.
SECTION 9
Application
9(1)
A body that is a *registered training organisation may apply, in writing, to the Minister for approval as a *VET provider.
History
Pt 1 cl 9(1) amended by No 160 of 2012, s 3 and Sch 1 item 7, by omitting "corporate" after "body", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
Pt 1 cl 9(1) substituted by No 14 of 2011, s 3 and Sch 1 item 36, effective 1 July 2011. Cl 9(1) formerly read:
9(1)
A body corporate may apply in writing to the Minister for approval as a *VET provider.
9(2)
The application:
(a)
must be in the form approved by the Minister; and
(b)
must be accompanied by such information as the Minister requests.
9(3)
If:
(a)
a body applies to the Minister for approval as a *VET provider; and
(b)
the Minister decides, under clause 6, not to approve the body as a VET provider;
the body cannot make a subsequent application for approval as a VET provider during the 6-month period starting on the date of the notice given to the applicant under paragraph 11(1)(b) about the decision.
History
Pt 1 cl 9(3) inserted by No 168 of 2015, s 3 and Sch 1 item 5, applicable in relation to decisions not to approve bodies as VET providers made on or after 1 January 2016.
SECTION 9A
9A
Minister may seek information from relevant VET Regulator
(Repealed by No 23 of 2013)
History
Pt 1 cl 9A repealed by No 23 of 2013, s 3 and Sch 5 item 4, effective 29 March 2013. Cl 9A formerly read:
SECTION 9A Minister may seek information from relevant VET Regulator
9A
For the purposes of approving a body as a *VET provider, the Minister may seek information from the relevant *VET Regulator.
Pt 1 cl 9A amended by No 160 of 2012, s 3 and Sch 1 item 8, by omitting "corporate" after "body", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
Pt 1 cl 9A amended by No 160 of 2012, s 3 and Sch 2 item 23, by omitting all the words after "*VET Regulator", applicable in relation to applications for approval as a VET provider made before, on or after 29 November 2012. The words formerly read:
that:
(a)
relates to the body corporate's application for approval as a VET provider; or
(b)
relates to the body corporate's compliance, or ability to comply, with the *VET quality and accountability requirements.
Pt 1 cl 9A inserted by No 14 of 2011, s 3 and Sch 1 item 37, applicable in relation to an application for approval made before, on or after 1 July 2011.
SECTION 9B
9B
Minister may seek information from TEQSA
(Repealed by No 23 of 2013)
History
Pt 1 cl 9B repealed by No 23 of 2013, s 3 and Sch 5 item 4, effective 29 March 2013. Cl 9B formerly read:
SECTION 9B Minister may seek information from TEQSA
9B
For the purposes of approving a body as a *VET provider, the Minister may seek information from *TEQSA.
Pt 1 cl 9B inserted by No 160 of 2012, s 3 and Sch 2 item 24, applicable in relation to applications for approval as a VET provider made before, on or after 29 November 2012.
SECTION 10
Minister may seek further information
10(1)
For the purposes of determining an application, the Minister may, by notice in writing, require an applicant to provide such further information as the Minister directs within the period specified in the notice.
10(2)
If an applicant does not comply with a requirement under subclause (1), the application is taken to have been withdrawn.
10(3)
A notice under this clause must include a statement about the effect of subclause (2).
SECTION 11
Minister to decide application
11(1)
The Minister must:
(a)
decide an application for approval as a *VET provider; and
(b)
cause the applicant to be notified in writing whether or not the applicant is approved as a VET provider.
11(1A)
The Minister is not required to comply with this clause after 4 October 2016.
Note:
The Minister must not approve a body as a VET provider after 4 October 2016: see subclause 6(5).
History
Pt 1 cl 11(1A) inserted by No 100 of 2016, s 3 and Sch 1 item 17, effective 1 January 2017. For transitional provision, see note under s 137-19.
11(2)
For the purposes of paragraph 6(1)(f) or 6(1A)(h):
(a)
the Minister may be satisfied that a body is willing and able to meet the *VET quality and accountability requirements if the body gives the Minister such written undertakings as the Minister requires; and
(b)
the Minister may be satisfied that a body is willing and able to meet:
(i)
the *VET quality and accountability requirements; or
(ii)
one or more of the requirements referred to in paragraphs 13(a) to (f);
if a body approved under the *VET Guidelines so recommends in accordance with those guidelines.
History
Pt 1 cl 11(2) amended by No 23 of 2013, s 3 and Sch 3 item 5, by substituting "13(a)" for "13(1)(a)" in para (b)(ii), applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider.
Pt 1 cl 11(2) amended by No 160 of 2012, s 3 and Sch 3 item 8, by omitting "Provider" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 11(2) amended by No 160 of 2012, s 3 and Sch 1 items 9 and 10, by substituting "paragraph 6(1)(f) or 6(1A)(h)" for "paragraph 6(1)(f)" and omitting "corporate" after "body" in para (a) and (b), applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
Pt 1 cl 11(2) amended by No 72 of 2011, s 3 and Sch 1 item 22, by substituting "paragraph 6(1)(f)" for "paragraph 6(f)", effective 30 June 2011.
Pt 1 cl 11(2) and (2A) substituted for cl 11(2) by No 6 of 2010, s 3 and Sch 1 item 3, effective 19 February 2010. Cl 11(2) formerly read:
11(2)
For the purposes of paragraph 6(f), the Minister may be satisfied that a body corporate is willing and able to meet the *VET quality and accountability requirements if the body gives the Minister such written undertakings as the Minister requires.
11(2A)
Subclause (2) does not limit the circumstances in which the Minister may be satisfied, for the purposes of paragraph 6(1)(f) or 6(1A)(h), that a body is willing and able to meet the *VET quality and accountability requirements.
History
Pt 1 cl 11(2A) amended by No 160 of 2012, s 3 and Sch 1 items 11 and 12, by substituting "paragraph 6(1)(f) or 6(1A)(h)" for "paragraph 6(1)(f)" and omitting "corporate" after "body", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
Pt 1 cl 11(2A) amended by No 72 of 2011, s 3 and Sch 1 item 22, by substituting "paragraph 6(1)(f)" for "paragraph 6(f)", effective 30 June 2011.
Pt 1 cl 11(2) and (2A) substituted for cl 11(2) by No 6 of 2010, s 3 and Sch 1 item 3, effective 19 February 2010.
11(3)
The Minister's decision must be made:
(a)
within 90 days after receiving the application; or
(b)
if further information is requested under clause 10 - within 60 days after the end of the period within which the information was required to be provided under that clause;whichever is the later.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 24A provides the following transitional provision:
24A Transitional - pending applications
For the purposes of subclause 11(3) of Schedule 1A to the Higher Education Support Act 2003, any period referred to in that subclause that was underway on 2 December 2015 is taken to have paused at the end of that day until the end of 21 January 2016.
]
11(3A)
However, contravention of subclause (3) does not affect the Minister's power to decide the application or the Minister's obligation to comply with subclause (1).
History
Pt 1 cl 11(3A) inserted by No 6 of 2012, s 3 and Sch 1 item 2, applicable to decisions on applications made on or after 7 March 2012.
11(4)
If the Minister decides that an applicant is approved as a *VET provider, the notice must also contain such information as is specified in the *VET Guidelines as information that must be provided to an applicant upon approval as a VET provider.
History
Pt 1 cl 11(4) amended by No 160 of 2012, s 3 and Sch 3 item 9, by substituting "*VET" for "VET Provider", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
SECTION 12
Approvals are legislative instruments
12(1)
A notice of approval under paragraph 11(1)(b) is a legislative instrument.
12(2)
A decision of the Minister to approve a body as a *VET provider takes effect when the notice of approval commences under the Legislation Act 2003.
Note:
Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.
History
Pt 1 cl 12(2) substituted by No 126 of 2015, s 3 and Sch 1 item 279, effective 5 March 2016. Pt 1 cl 12(2) formerly read:
12(2)
A decision of the Minister to approve a body as a *VET provider takes effect when the notice of approval takes effect under the Legislative Instruments Act 2003.
Note:
Section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.
Pt 1 cl 12(2) amended by No 160 of 2012, s 3 and Sch 1 item 12, by omitting "corporate" after "body", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
Pt 1 cl 12(2) substituted by No 39 of 2009, s 3 and Sch 2 item 6, effective 24 June 2009. For application and transitional provisions, see note under s 16-5(3). Cl 12(2) formerly read:
12(2)
A decision of the Minister to approve a body corporate as a *VET provider takes effect at the later of the following times:
(a)
on the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the notice could be passed;
(b)the day (if any) specified in the notice under paragraph 11(1)(b) as the day on which the approval takes effect.
SECTION 12A
Conditions of approval
12A(1)
The Minister may impose conditions on a body's approval as a *VET provider. Such conditions need not be imposed at the time notice of approval is given to the provider.
History
Pt 1 cl 12A(1) amended by No 160 of 2012, s 3 and Sch 1 item 13, by substituting "body's" for "body corporate's", applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
12A(2)
The Minister may vary a condition imposed under subclause (1).
History
Pt 1 cl 12A(2) amended by No 136 of 2012, s 3 and Sch 1 item 66, by substituting "subclause (1)" for "subsection (1)", effective 22 September 2012.
History
Pt 1 cl 12A inserted by No 72 of 2011, s 3 and Sch 1 item 23, applicable in relation to a body approved as a VET provider before, on or after 30 June 2011.
SECTION 12B
12B
Minister to cause VET provider to be notified of change in condition of approval
The Minister must, within 30 days of his or her decision to impose or vary a condition on a *VET provider, cause the provider to be notified, in writing, of:
(a)
the decision; and
(b)
the reasons for the decision; and
(c)
the period for which the condition is imposed.
History
Pt 1 cl 12B inserted by No 72 of 2011, s 3 and Sch 1 item 23, applicable in relation to a body approved as a VET provider before, on or after 30 June 2011.
SECTION 12C
Variation of approval if body's name changes
12C(1)
If a body is approved as a *VET provider under clause 6 and the body's name changes, the Minister mayvarythe approval to include the new name.
12C(2)
The Minister must notify the body in writing of the variation.
12C(3)
A notice of variation under subclause (2) is a legislative instrument.
12C(4)
The variation takes effect when the notice of variation commences under the Legislation Act 2003.
Note:
Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.
History
Pt 1 cl 12C(4) substituted by No 126 of 2015, s 3 and Sch 1 item 280, effective 5 March 2016. Pt 1 cl 12C(4) substituted formerly read:
12C(4)
The variation takes effect when the notice of variation takes effect under the Legislative Instruments Act 2003.
Note:
Section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.
History
Pt 1 cl 12C inserted by No 23 of 2013, s 3 and Sch 2 item 2, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013.
Division 4 - What are the VET quality and accountability requirements?
Subdivision 4-A - General
SECTION 13
13
The VET quality and accountability requirements
The
VET quality and accountability requirements
are:
(a)
the *VET financial liability requirements (see Subdivision 4-B); and
(b)
the *VET quality requirements (see Subdivision 4-C); and
(c)
the *VET fairness requirements (see Subdivision 4-D); and
(d)
the *VET compliance requirements (see Subdivision 4-E); and
(e)
the *VET fee requirements (see Subdivision 4-F); and
(f)
any other requirements for VET quality and accountability set out in the *VET Guidelines.
History
Pt 1 cl 13 renumbered from cl 13(1) by No 23 of 2013, s 3 and Sch 3 item 6, by omitting "(1)" before "The", applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider.
Pt 1 cl 13(1) amended by No 160 of 2012, s 3 and Sch 3 item 10, by omitting "Provider" after "*VET" in para (f), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
13(2)
(Repealed by No 23 of 2013)
History
Pt 1 cl 13(2) repealed by No 23 of 2013, s 3 and Sch 3 item 7, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider. Cl 13(2) formerly read:
13(2)
This Division does not of its own force require a *VET provider to do any act or thing.
Subdivision 4-B - the VET financial viability requirements
SECTION 14
14
Basic requirement
A *VET provider:
(a)
must be financially viable; and
(b)
must be likely to remain financially viable.
SECTION 15
Financial information must be provided
15(1)
A *VET provider must give to the Minister a financial statement for each *annual financial reporting period for the provider in which a student of the provider receives assistance under this Schedule.
15(2)
The statement:
(a)
must be in the form approved by the Minister; and
(b)must be provided with a report, on the statement, by:
(i)
the Auditor-General of a State, of the Australian Capital Territory or of the Northern Territory; or
(ii)
a registered company auditor (within the meaning of section 9 of the Corporations Act 2001), who is independent of the *VET provider; or
(iii)
a person approved by the Minister under paragraph (d) of the definition of
qualified auditor
in subclause 1(1) of Schedule 1, who is independent of the VET provider; and
(c)
must be provided within 6 months after the end of the *annual financial reporting period for which the statement was given.
History
Pt 1 cl 15(2) amended by No 168 of 2015, s 3 and Sch 1 item 6, by substituting para (b), applicable in relation to annual financial reporting periods ending on or after 1 January 2016. Para (b) formerly read:
(b)
must be provided together with a report on the statement by an independent *qualified auditor; and
15(3)
An
annual financial reporting period
, for a *VET provider, is the period of 12 months:
(a)
to which the provider's accounts relate; and
(b)
that is notified in writing to the Minister as the provider's annual financial reporting period.
SECTION 16
16
Minister to have regard to financial information
In determining whether a *VET provider is financially viable, and likely to remain so, the Minister must have regard to:
(a)
any financial statement provided by the provider under clause 15; and
(b)
any financial information provided by the provider in response to a notice given to the provider under clause 24.
History
Pt 1 cl 16 amended by No 160 of 2012, s 3 and Sch 1 item 14, by substituting "to: (a) any financial statement provided by the provider under clause 15; and (b) any financial information provided by the provider in response to a notice given to the provider under clause 24." for "to any financial statement provided by the provider under clause 15.", applicable in relation to financial statements or financial information provided before, on or after 1 January 2013.
Subdivision 4-C - The VET quality requirements
SECTION 17
Provider must maintain quality
17(1)
A *VET provider must operate, and continue to operate, at an appropriate level of quality for a VET provider.
17(1A)
To avoid doubt, subclause (1) covers the quality of all of a *VET provider's operations.
History
Pt 1 cl 17(1A) inserted by No 23 of 2013, s 3 and Sch 3 item 8, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider.
17(2)
The Minister must not determine that a *VET provider meets an appropriate level of quality for a VET provider unless the Minister is satisfied that the provider meets the requirements relating to quality set out, or referred to, in the *VET Guidelines.
History
Pt 1 cl 17(2) amended by No 160 of 2012, s 3 and Sch 3 items 11 and 12, by inserting "relating to quality" and omitting "Provider" after "*VET", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 17(2) amended by No 14 of 2011, s 3 and Sch 1 item 38, by substituting ", or referred to, in the *VET Provider Guidelines" for "in the *Australian Quality Training Framework", applicable in relation to an application for approval made before, on or after 1 July 2011.
17(3)
(Repealed by No 160 of 2012)
History
Pt 1 cl 17(3) repealed by No 160 of 2012, s 3 and Sch 1 item 15, applicable in relation to applications for approval as a VET provider made on or after 1 January 2013. Cl 17(3) formerly read:
17(3)
For the purpose of subclause (2), the *VET Provider Guidelines may provide for different requirements for different classes of *VET providers.
Pt 1 cl 17(3) inserted by No 14 of 2011, s 3 and Sch 1 item 39, effective 1 July 2011.
17(4)
Despite subsection 14(2) of the Legislation Act 2003, the *VET Provider Guidelines may refer to a requirement by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
[
CCH Note:
Pt 1 cl 17(4) will be amended by No 160 of 2012, s 3 and Sch 3 item 12, by omitting "Provider", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after a single day to be fixed by Proclamation or 28 May 2013 (whichever is earlier); and (b) in any other case - in relation to a VET provider approved before, on or after a single day to be fixed by Proclamation or 28 May 2013 (whichever is earlier).]
History
Pt 1 cl 17(4) amended by No 126 of 2015, s 3 and Sch 1 item 281, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003", effective 5 March 2016.
Pt 1 cl 17(4) inserted by No 14 of 2011, s 3 and Sch 1 item 39, effective 1 July 2011.
Subdivision 4-D - The VET fairness requirements
SECTION 18
18
Equal benefits and opportunity requirements
A *VET provider must comply with the requirements relating to equal benefits and opportunity for students that are set out in the *VET Guidelines.
History
Pt 1 cl 18 amended by No 160 of 2012, s 3 and Sch 3 item 13, by omitting "Provider" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
SECTION 19
19
Student grievance and review requirements
A *VET provider must comply with the requirements relating to student grievance and review procedures that are set out in the *VET Guidelines.
History
Pt 1 cl 19 amended by No 160 of 2012, s 3 and Sch 3 item 13, by omitting "Provider" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
SECTION 20
Tuition assurance requirements
20(1)
A *VET provider must comply with the *VET tuition assurance requirements.
20(2)
The Minister may, by declaration in writing, exempt a specified *VET provider from the requirement in subclause (1).
20(3)
An exemption:
(a)
is subject to such conditions as are specified in the exemption; and
(b)
may be expressed to be in force for a period specified in the exemption.
Note:
A body will not be exempt if a condition of the exemption is not complied with.
20(4)
An exemption given under this clause is not a legislative instrument.
SECTION 21
VET providers to appoint review officers
21(1)
A *VET provider must appoint a *review officer to undertake reviews of decisions made by the provider relating to assistance under Part 2.
Note:
The Secretary may delegate to a review officer of a VET provider the power to reconsider decisions of the provider under Subdivision 16-C: see subclause 98(2).
21(2)
A
review officer
of a *VET provider is a person, or a person included in a class of persons, whom:
(a)
the chief executive officer of the provider; or
(b)
a delegate of the chief executive officer of the provider;has appointed to be a review officer of the provider for the purposes of reviewing decisions made by the provider relating to assistance under Part 2.
SECTION 22
22
Review officers not to review own decisions
A *VET provider must ensure that a *review officer of the provider:
(a)
does not review a decision that the review officer was involved in making; and
(b)
in reviewing a decision of the provider, occupies a position that is senior to that occupied by any person involved in making the original decision.
SECTION 23
Procedures relating to personal information
23(1)
A *VET provider must comply with the Australian Privacy Principles in respect of *VET personal information obtained for the purposes of Part 2 of this Schedule or Chapter 4.
History
Pt 1 cl 23(1) amended by No 197 of 2012, s 3 and Sch 5 item 44, by substituting "Australian Privacy Principles" for "information privacy principles set out in section 14 of the Privacy Act 1988", effective 12 March 2014.
23(2)
A *VET provider must have a procedure under which a student enrolled with the provider may apply to the provider for, and receive, a copy of *VET personal information that the provider holds in relation to that student.
23(3)
The provider must comply with:
(a)
the requirements of the *VET Guidelines relating to *personal information in relation to students; and
(b)
the procedure referred to in subclause (2).
History
Pt 1 cl 23(3) amended by No 160 of 2012, s 3 and Sch 3 item 14, by omitting "Provider" before "Guidelines in para (a), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Subdivision 4-E - The VET compliance requirements
SECTION 23A
23A
Basic requirement
A *VET provider must comply with:
(a)
this Act and the regulations; and
(b)
*VET Guidelines that apply to the provider; and
(c)
a condition imposed on the provider's approval as a VET provider.
History
Pt 1 cl 23A inserted by No 23 of 2013, s 3 and Sch 3 item 9, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider.
SECTION 23B
Entry procedure for students
23B(1)
A *VET provider must make and publish a *student entry procedure in accordance with the *VET Guidelines.
23B(2)
A *VET provider must comply with its *student entry procedure.
23B(3)
A
student entry procedure
is a written procedure that specifies, in accordance with the *VET Guidelines:
(a)
when a student is academically suited to undertake a *VET course of study; and
(b)
how to assess whether a student is so suited; and
(c)
how to report to the *Secretary about the results of such assessments; and
(d)
how long the *VET provider must retain those results.
Note:
The VET Guidelines could, for example, require a student entry procedure to:
(a) set out the literacy, numeracy and general academic skills needed by a student to undertake a VET course of study; and
(b) provide for assessments of those skills to be conducted online.
23B(4)
For the purposes of subclause (3), the *VET Guidelines may empower:
(a)
a person or body:
(i)
to decide whether to approve a particular tool for use when assessing whether a student is academically suited to undertake a *VET course of study; and
(ii)
to charge a fee for making such a decision; and
(b)
a person or body to charge a fee for the use of a tool for such an assessment.
A fee so charged must not be such as to amount to taxation.
History
Pt 1 cl 23B inserted by No 168 of 2015, s 3 and Sch 1 item 7, effective 31 December 2015.
SECTION 23C
Receiving requests for Commonwealth assistance
23C(1)
A *VET provider must not treat a student as being entitled to *VET FEE-HELP assistance for a *VET unit of study if:
(a)
the student gives an *appropriate officer of the VET provider:
(i)
a *request for Commonwealth assistance relating to the unit or a *VET course of study of which the unit forms a part; or
(ii)
a form that would be such a request if it were signed by a *responsible parent of the student; and
(b)
the student is not entitled to that assistance for that unit or course.
Note:
To be a request for Commonwealth assistance, a responsible parent must sign the form if the student is under 18 years old and subclause 88(3A) applies (see paragraph 88(3)(aa)).
23C(2)
Before a *VET provider enrols a student in a *VET unit of study less than 2 business days before the *census date for the unit, the VET provider must advise the student that the student will not be able to receive *VET FEE-HELP assistance for the unit.
23C(3)
Before a *VET provider enrols a student in a *VET unit of study, the VET provider must advise the student that any *request for Commonwealth assistance by the student in relation to the unit must be given:
(a)
at least 2 business days after the student enrols in:
(i)
if the *VET course of study of which the unit forms a part is undertaken with the provider - the course; or
(ii)
otherwise - the unit; and
(b)
on or before the *census date for the unit;
if the student has not already given an *appropriate officer of the VET provider such a request relating to the course.
23C(4)
A *VET provider must not encourage a student to give a *request for Commonwealth assistance relating to a *VET unit of study so that the request is given less than 2 business days after the student enrols in the unit.
History
Pt 1 cl 23C inserted by No 168 of 2015, s 3 and Sch 1 item 7, effective 31 December 2015.
SECTION 24
VET provider to provide statement of general information
24(1)
A *VET provider must give to the Minister such statistical and other information that the Minister by notice in writing requires from the provider in respect of:
(a)
the provision of vocational education and training by the provider; and
(b)
compliance by the provider with the requirements of this Schedule.
24(2)
The information must be provided:
(a)
in a form (if any) approved by the Minister for the information; and
(b)
in accordance with such other requirements as the Minister makes.
History
Pt 1 cl 24(2) amended by No 6 of 2012, s 3 and Sch 1 item 22, by substituting "(if any) approved by the Minister for the information" for "approved by the Minister", applicable in relation to information required after 7 March 2012.
24(3)
A notice under this section must not require the giving of information that a *VET provider is required to give to the Minister under clause 28.
SECTION 25
Notice of events that affect provider's ability to comply with VET quality and accountability requirements
25(1)
A *VET provider must, by writing, inform the Minister of any event affecting:
(a)
the provider; or
(b)
a *related body corporate of the provider;
that may significantly affect the provider's capacity to meet the *VET quality and accountability requirements.
History
Pt 1 cl 25(1) renumbered from cl 25 by No 14 of 2011, s 3 and Sch 1 item 40, by inserting "(1)" before "A", effective 1 July 2011.
25(2)
A *VET provider must, by writing, inform the Minister of any event that may significantly affect whether:
(a)
if the VET provider was approved under subclause 6(1) - any of the conditions in subclause 6(1) are or could be met in relation to the provider after the event; or
(aa)
if the VET provider was approved under subclause 6(1A) - any of the conditions in subclause 6(1A) are or could be met in relation to the provider after the event.
(b)
(Repealed by No 17 of 2021)
History
Pt 1 cl 25(2) amended by No 17 of 2021, s 3 and Sch 1 items 11 and 12, by substituting "event" for "event; or" in para (aa) and repealing para (b), effective 1 July 2021. For saving provision, see note under Div 5 heading. Para (b) formerly read:
(b)
there is or may be a ground for revoking under Subdivision 5-B the approval of the VET provider.
Pt 1 cl 25(2) amended by No 160 of 2012, s 3 and Sch 1 items 16 and 17, by inserting "if the VET provider was approved under subclause 6(1) -" in para (a) and inserting para (aa), applicable in relation to applications for approval as a VET provider made on or after 1 January 2013.
Pt 1 cl 25(2) substituted by No 6 of 2012, s 3 and Sch 1 item 4, applicable to VET providers approved before, on or after 6 September 2012. Cl 25(2) formerly read:
25(2)
The notice must be given to the Minister as soon as practicable after the *VET provider becomes aware of an event mentioned in subclause (1).
Pt 1 cl 25(2) inserted by No 14 of 2011, s 3 and Sch 1 item 41, effective 1 July 2011.
25(3)
A notice under subclause (1) or (2) must be given to the Minister as soon as practicable after the *VET provider becomes aware of the event mentioned in the subclause.
History
Pt 1 cl 25(3) inserted by No 6 of 2012, s 3 and Sch 1 item 4, applicable to VET providers approved before, on or after 6 September 2012.
SECTION 25A
Copy of notice given to National VET Regulator about material changes
25A(1)
If a *VET provider gives the *National VET Regulator a notice under section 25 of the National Vocational Education and Training Regulator Act 2011, the provider must give a copy of the notice to the Minister.
25A(2)
A copy of the notice must be given to the Minister at the same time it must be given to the *National VET Regulator.
History
Pt 1 cl 25A inserted by No 14 of 2011, s 3 and Sch 1 item 42, effective 1 July 2011.
SECTION 26
Compliance assurance - provider
26(1)
The Minister may require a *VET provider to be audited:
(a)
about compliance with any or all of the following requirements:
(i)
the *VET financial viability requirements;
(ii)
the *VET fairness requirements;
(iii)
the *VET compliance requirements;
(iv)
the *VET fee requirements;
(v)
other requirements for VET quality and accountability set out in the *VET Guidelines; or
(b)
about any or all of the following matters relating to *VET courses of study provided by the VET provider:
(i)
the approaches used to recruit or enrol students (or potential students) of those courses who receive (or who could receive) *VET FEE-HELP assistance for *VET units of study forming part of those courses;
(ii)
the veracity of enrolments in those courses of students who receive VET FEE-HELP assistance for VET units of study forming part of those courses;
(iii)
the level of teaching resources, or the quality of those resources, for any of those courses;
(iv)
the level of engagement in any of those courses of students who receive VET FEE-HELP assistance for VET units of study forming part of those courses;
(v)
the completion rates for any of those courses of students who receive VET FEE-HELP assistance for VET units of study forming part of those courses.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 24(3A) provides that para (b) is applicable to matters happening before, on or after 1 January 2016, to the extent that those matters are relevant to VET courses of study provided wholly or partly on or after 1 January 2016.
Example:
When auditing a VET provider about a 2016 VET course of study, the audit could look at:
(a) any approaches used in 2015 for recruiting students to the 2016 course; or
(b) teaching resources, student engagement or completion rates for the corresponding course provided in 2015.]
History
Pt 1 cl 26(1) substituted by No 168 of 2015, s 3 and Sch 1 item 7A, effective 31 December 2015. Cl 26(1) formerly read:
26(1)
The Minister may require a *VET provider to be audited as to compliance with any one or more of the following requirements:
(a)
the *VET financial viability requirements;
(b)
the *VET fairness requirements;
(c)
the *VET compliance requirements
(d)
the *VET fee requirements;
(e)
other requirements for VET quality and accountability set out in the *VET Guidelines.
Pt 1 cl 26(1) amended by No 160 of 2012, s 3 and Sch 3 item 15, by omitting "Provider" before "Guidelines" in para (e), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
26(2)
The audit must be conducted:
(a)
by a body determined in writing by the Minister; and
(b)
at such time or times, and in such manner, as the Minister requires.
26(2A)
To avoid doubt, if the Minister makes a determination under subclause (2) in relation to the *National VET Regulator, the determination is not a direction for the purpose of subsection 160(2) of the National Vocational Education and Training Regulator Act 2011.
History
Pt 1 cl 26(2A) inserted by No 14 of 2011, s 3 and Sch 1 item 43, effective 1 July 2011.
26(3)
The provider must:
(a)
fully co-operate with the auditing body in the course of its audit; and
(b)
pay to the auditing body and charges payable for such an audit.
26(4)
A determination made under paragraph (2)(a) is not a legislative instrument.
SECTION 26A
Compliance notices
Grounds for giving a compliance notice
26A(1)
The Minister may give a *VET provider a written notice (a
compliance notice
) in accordance with this clause if the Minister is satisfied that the provider has not complied with, or is aware of information that suggests that the provider may not comply with, one or more of the following:
(a)
this Act or the regulations;
(b)
*VET Guidelines that apply to the provider;
(c)
a condition imposed on the provider's approval as a VET provider.
Content of compliance notice
26A(2)
The compliance notice must:
(a)
set out the name of the provider to which the notice is given; and
(b)
set out brief details of the non-compliance or possible non-compliance; and
(c)
specify action that the provider must take, or refrain from taking, in order to address the non-compliance or possible non-compliance; and
(d)
specify a reasonable period within which the provider must take, or refrain from taking, the specified action; and
(e)
if the Minister considers it appropriate - specify a reasonable period within which the provider must provide the Minister with evidence that the provider has taken, or refrained from taking, the specified action; and
(f)
in any case - state that a failure to comply with the notice is a breach of a *VET quality and accountability requirement which may lead to the provider's approval as a *VET provider being suspended or revoked; and
(g)
in any case - set out any other matters specified in the *VET Guidelines for the purposes of this paragraph.
Matters that Minister must consider in giving compliance notice
26A(3)
In deciding whether to give the compliance notice, the Minister must consider all of the following matters:
(a)
whether the non-compliance or possible non-compliance is of a minor or major nature;
(b)
the period for which the provider has been approved as a *VET provider;
(c)
the provider's history of compliance with:
(i)
this Act and the regulations; and
(ii)
the*VET Guidelines that apply to the provider; and
(iii)
any conditions imposed on the provider's approval as a VET provider;
(d)
the impact of the VET provider's non-compliance or possible non-compliance, and of the proposed compliance notice, on:
(i)
the VET provider's students; and
(ii)
the provision of vocational education and training generally;
(e)
the public interest;
(f)
any other matter specified in the VET Guidelines for the purposes of this paragraph.
VET provider to comply with compliance notice
26A(4)
A *VET provider must comply with a compliance notice given to the provider under this clause.
Note:
A failure to comply with a compliance notice is a breach of a VET quality and accountability requirement which may lead to the provider's approval as a VET provider being suspended or revoked (see clauses 33 and 36).
Variation and revocation of compliance notice
26A(5)
The Minister may, by written notice given to the *VET provider, vary or revoke a compliance notice if, at the time of the variation or revocation, the Minister considers that taking such action is in the public interest.
Note:
A variation could, for example, specify different action to be taken by the provider or a different period for complying with the notice.
26A(6)
In deciding whether to vary or revoke the compliance notice, the Minister must consider any submissions that are received from the *VET provider before the end of the period mentioned in paragraph (2)(d).
26A(7)
(Repealed by No 17 of 2021)
History
S 26A(7) repealed by No 17 of 2021, s 3 and Sch 1 item 13, effective 1 July 2021. For saving provision, see note under Div 5 heading. S 26A(7) formerly read:
Compliance notice not required before suspending or revoking approval
26A(7)
To avoid doubt, the Minister need not give a compliance notice under this clause before suspending or revoking the *VET provider's approval as a VET provider in accordance with Division 5 of this Schedule.
History
Pt 1 cl 26A inserted by No 23 of 2013, s 3 and Sch 3 item 10, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider.
Subdivision 4-F - The VET fee requirements
SECTION 27
Determining tuition fees for all students
27(1)
This section applies to a *VET unit of study that a *VET provider provides or proposes to provide during a period ascertained in accordance with the *VET Guidelines.
History
Pt 1 cl 27(1) amended by No 160 of 2012, s 3 and Sch 3 item 16, by omitting "Provider" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
27(2)
The provider must determine, for the unit, the
VET tuition fees
that are to apply to students who may enrol in the unit during the period.
History
Pt 1 cl 27(2) amended by No 168 of 2015, s 3 and Sch 1 item 8, by substituting "
VET tuition fees
" for "*VET tuition fees", effective 31 December 2015.
27(3)
In determining *VET tuition fees under subclause (2), the provider may have regard to any matters the provider considers appropriate, other than matters specified in the *VET Guidelines as matters to which a provider must not have regard.
History
Pt 1 cl 27(3) amended by No 160 of 2012, s 3 and Sch 3 item 16, by omitting "Provider" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
27(4)
The provider must not vary a *VET tuition fee unless the provider:
(a)
does so:
(i)
before the date ascertained in accordance with the *VET Guidelines; and
(ii)
in circumstances specified in the VET Guidelines; or
(b)
does so with the written approval of the Minister.
History
Pt 1 cl 27(4) amended by No 160 of 2012, s 3 and Sch 3 item 17, by omitting "Provider" before "Guidelines" in para (a)(i) and (ii), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
SECTION 27A
27A
Requirements in the VET Guidelines
A *VET provider must comply with any requirements set out in the *VET Guidelines relating to:
(a)
fees for *VET units of study; or
(b)
fees for *VET courses of study; or
(c)
matters or things for which fees may be charged.
History
Pt 1 cl 27A amended by No 160 of 2012, s 3 and Sch 3 item 19, by omitting "Provider" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 27A inserted by No 11 of 2008, s 3 and Sch 1 item 2, effective 20 March 2008.
SECTION 28
Schedules of VET tuition fees
General rule
28(1)
A *VET provider must give the Minister a schedule of the *VET tuition fees determined under clause 27 for all the VET units of study it provides or proposes to provide, otherthan under *VET restricted access arrangements, during a period ascertained in accordance with the *VET Guidelines. It must give the schedule:
(a)
in a form approved by the Minister; and
(b)
in accordance with the requirements that the Minister determines in writing.
History
Pt 1 cl 28(1) amended by No 160 of 2012, s 3 and Sch 3 item 20, by omitting "Provider" before "Guidelines.", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 28(1) amended by No 11 of 2008, s 3 and Sch 1 item 3, by inserting ", other than under *VET restricted access arrangements," after "provide", effective 20 March 2008.
28(2)
The provider must:
(a)
ensure that the schedule provides sufficient information to enable a person to work out the person's *VET tuition fee for each *VET unit of study the provider provides or is to provide; and
(b)
publish the schedule for a particular period by the date ascertained in accordance with the *VET Guidelines; and
(c)
ensure that the schedule is available to all students enrolled, and persons seeking to enrol, with the provider on request and without charge.
History
Pt 1 cl 28(2) amended by No 160 of 2012, s 3 and Sch 3 item 21, by omitting "Provider" before "Guidelines;" in para (b), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Restricted access arrangements
28(2A)
A *VET provider must give the Minister a schedule of the *VET tuition fees determined under clause 27 for each *VET unit of study it provides or proposes to provide under a *VET restricted access arrangement during a period ascertained in accordance with the *VET Guidelines. It must give the schedule:
(a)
in a form approved by the Minister; and
(b)
in accordance with the requirements that the Minister determines in writing.
History
Pt 1 cl 28(2A) amended by No 160 of 2012, s 3 and Sch 3 item 22, by omitting "Provider" before "Guidelines.", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 28(2A) inserted by No 11 of 2008, s 3 and Sch 1 item 4, effective 20 March 2008.
28(2B)
The provider must:
(a)
ensure that the schedule provides sufficient information to enable a person to work out the person's *VET tuition fee for the *VET unit of study the provider provides or is to provide under the *VET restricted access arrangement; and
(b)
ensure that the schedule is available, on request and without charge, to all students enrolled, or eligible to be enrolled, under the VET restricted access arrangement.
History
Pt 1 cl 28(2B) inserted by No 11 of 2008, s 3 and Sch 1 item 4, effective 20 March 2008.
Replacement schedules
28(3)
If:
(a)
the provider has given the Minister a schedule (the
previous schedule
) under:
(i)
subclause (1) or (2A); or
(ii)
this subclause; and
(b)
the provider varies a *VET tuition fee in the previous schedule;the provider must:
(c)
by written notice given to the Minister:
(i)
withdraw the previous schedule; and
(ii)
inform the Minister of the variation; and
(d)
give the Minister a replacement schedule incorporating the variation.
Note:
The provider must comply with subclause 27(4) when varying a tuition fee.
History
Pt 1 cl 28(3) amended by No 11 of 2008, s 3 and Sch 1 item 5, by inserting "or (2A)" after "(1)" in para (a)(i), effective 20 March 2008.
28(4)
Subclauses (1) to (2B) apply to the replacement schedule in a corresponding way to the way in which they apply to the previous schedule.
History
Pt 1 cl 28(4) amended by No 11 of 2008, s 3 and Sch 1 item 6, by substituting "to (2B)" for "and (2)", effective 20 March 2008.
Division 5 - Revocation of VET provider approvals
History
Pt 1 Div 5 substituted by No 17 of 2021, s 3 and Sch 1 item 14, effective 1 July 2021. No 17 of 2021, s 3 and Sch 1 item 17 contains the following saving provision:
17 Saving of requirements on earlier revocations
(1)
This item applies if:
(a)
before the commencement of this item, a body had its approval as a *VET provider revoked; and
(b)
immediately before that commencement, the revocation was subject to conditions under clause 39 of Schedule 1A to the Higher Education Support Act 2003.
(2)
Despite the repeal of clause 39 of Schedule 1A to the Higher Education Support Act 2003 by this Part, that clause continues to apply in relation to the body as if the repeal had not happened.
Pt 1 Div 5 formerly read:
Divison 5 - When does a body cease to be a VET provider?
Subdivision 5-A - General
SECTION 29
SECTION 29 Cessation of approval as a provider
29
A body ceases to be approved as a *VET provider:
(a)
if a decision to revoke the approval is in effect under Subdivision 5-AA, 5-B or 5-D; or
(b)
while the approval is suspended under clause 36; or
(c)
if the notice of the provider's approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.
History
Pt 1 cl 29 amended by No 126 of 2015, s 3 and Sch 1 item 282, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003" in para (c), effective 5 March 2016.
Pt 1 cl 29 amended by No 23 of 2013, s 3 and Sch 1 item 4, by inserting "5-AA," in para (a), applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013.
Pt 1 cl 29 amended by No 160 of 2012, s 3 and Sch 2 item 9, by substituting para (a), applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012. Para (a) formerly read:
(a)
if the approval is revoked under Subdivision 5-B or 5-D; or
Pt 1 cl 29 amended by No 39 of 2009, s 3 and Sch 2 item 7, by inserting para (c) at the end, effective24 June 2009. For application and transitional provisions, see note under s 16-5(3).
SECTION 29A
SECTION 29A Minister to notify relevant VET Regulator of cessation of approval
29A
If a body ceases to be approved as a *VET provider, the Minister must ensure that the relevant *VET Regulator is notified, in writing, of the cessation.
History
Pt 1 cl 29A inserted by No 14 of 2011, s 3 and Sch 1 item 44, effective 1 July 2011.
Subdivision 5-AA - Revocation of approval if registration ceases or winding up order made
History
Pt 1 subdiv 5-AA inserted by No 23 of 2013, s 3 and Sch 1 item 5, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013.
SECTION 29B Automatic revocation of approval if registration ceases
29B(1)
The Minister must revoke a body's approval as a *VET provider if:
(a)
the body ceases to be listed as a *registered training organisation on the *National Register; and
(b)
in a case where the relevant *VET Regulator has made any of the following decisions, the decision has not been set aside or quashed, and is no longer *subject to review:
(i)
a decision under section 31 of the National Vocational Education and Training Regulator Act 2011 to refuse an application to renew the body's registration as an NVR registered training organisation;
(ii)
a decision under section 39 of that Act to cancel the body's registration as an NVR registered training organisation;
(iii)
a decision under a law of a State that has a similar effect to a decision referred to in subparagraph (i) or (ii).
29B(2)
The Minister must notify the body in writing of the revocation. The notice must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.
History
Pt 1 cl 29B(2) amended by No 126 of 2015, s 3 and Sch 1 item 283, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
29B(3)
A notice of revocation under subclause (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the notice.
History
Pt 1 cl 29B(3) amended by No 126 of 2015, s 3 and Sch 1 item 284, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003", effective 5 March 2016.
29B(4)
A decision of the Minister to revoke a body's approval as a *VET provider takes effect on the day that the notice of revocation under subclause (2) is registered in the *Federal Register of Legislation.
History
Pt 1 cl 29B(4) amended by No 126 of 2015, s 3 and Sch 1 item 285, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
History
Pt 1 cl 29B inserted by No 23 of 2013, s 3 and Sch 1 item 5, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a VET provider that ceases to be listed as a registered training organisation on the National Register on or after 29 March 2013.
SECTION 29C Automatic revocation of approval if winding up order made
29C(1)
The Minister must revoke a body's approval as a *VET provider if:
(a)
an order is made by a court, or by the Australian Securities and Investments Commission under Part 5.4C of the Corporations Act 2001, for the winding up of the body; and
(b)
the order has not been set aside or quashed, and is no longer *subject to review.
29C(2)
The Minister must notify the body in writing of the revocation. The notice must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.
History
Pt 1 cl 29C(2) amended by No 126 of 2015, s 3 and Sch 1 item 285, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
29C(3)
A notice of revocation under subclause (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the notice.
History
Pt 1 cl 29C(3) amended by No 126 of 2015, s 3 and Sch 1 item 286, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003", effective 5 March 2016.
29C(4)
A decision of the Minister to revoke a body's approval as a *VET provider takes effect on the day that the notice of revocation under subclause (2) is registered in the *Federal Register of Legislation.
History
Pt 1 cl 29C(4) amended by No 126 of 2015, s 3 and Sch 1 item 287, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
History
Pt 1 cl 29C inserted by No 23 of 2013, s 3 and Sch 1 item 5, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a VET provider if an order is made, on or after 29 March 2013, for the winding up of the provider.
Subdivision 5-B - Revocation for cause
SECTION 30
SECTION 30 Revocation of approval if application for approval as a provider is false or misleading
30
The Minister may revoke a body's approval as a *VET provider if the Minister:
(a)
is satisfied that the body's application under clause 9 for approval as a VET provider contained material that was false or misleading; and
(b)
complies with the requirements of clause 34.
SECTION 30A
SECTION 30A Revocation of approval if body's links to Australia are broken
30A
The Minister may revoke a body's approval as a *VET provider if:
(a)
the body ceases to be one described in paragraph 6(1)(a) or 6(1A)(b); and
(b)
the Minister complies with the requirements of clause 34.
History
Pt 1 cl 30A amended by No 160 of 2012, s 3 and Sch 1 item 18, by inserting "or 6(1A)(b)" in para (a), applicable in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 30A amended by No 72 of 2011, s 3 and Sch 1 item 24, by substituting "paragraph 6(1)(a)" for "paragraph 6(a)" in para (a), effective 30 June 2011.
Pt 1 cl 30A inserted by No 39 of 2009, s 3 and Sch 1 item 3, applicable to an approval granted before, on or after 24 June 2009.
SECTION 31
SECTION 31 Revocation of approval if providing education ceases to be the body's principal purpose
31
The Minister may revoke a body's approval as a *VET provider if:
(a)
either:
(i)
providing education is no longer, or is no longer taken to be, the body's principal purpose; or
(ii)
the Minister is satisfied that any of the body's purposes conflict with the body's principal purpose of providing education; and
(b)
the Minister complies with the requirements of clause 34.
History
Pt 1 cl 31 amended by No 72 of 2011, s 3 and Sch 1 item 25, by substituting para (a), applicable in relation to an approval given before, on or after 30 June 2011. Para (a) formerly read:
(a)
the body's principal purpose is no longer to provide education; and
SECTION 32
SECTION 32 Revocation of approval as a provider if body ceases to be a registered training organisation
32
(Repealed by No 23 of 2013)
History
Pt 1 cl 32 repealed by No 23 of 2013, s 3 and Sch 1 item 6, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013. Cl 32 continues to apply in relation to a VET provider that had ceased to be listed as a registered training organisation on the National Register before 29 March 2013. Cl 32 formerly read:
SECTION 32 Revocation of approval as a provider if body ceases to be a registered training organisation
32
The Minister may revoke a body's approval as a *VET provider if:
(a)
the body ceases to be listed as a *registered training organisation on the *National Register; and
(b)
the Minister complies with the requirements of clause 34.
Pt 1 cl 32 substituted by No 14 of 2011, s 3 and Sch 1 item 45, effective 1 July 2011. Cl 32 formerly read:
SECTION 32 Revocation of approval as a provider if body ceases to be a registered training organisation
32
The Minister may revoke a body's approval as a *VET provider if:
(a)
the body was listed as a registered training organisation on *NTIS at the last time the body became a VET provider; and
(b)
since that time, the body has ceased to be listed as a registered training organisation on NTIS; and
(c)
the Minister complies with the requirements of clause 34.
SECTION 32A
SECTION 32A Revocation of approval if body ceases to offer VET courses of study
32A
The Minister may revoke a body's approval as a *VET provider if:
(a)
the body no longer offers any *VET courses of study; and
(b)
the Minister complies with the requirements of clause 34.
History
Pt 1 cl 32A inserted by No 39 of 2009, s 3 and Sch 1 item 5, applicable to an approval granted as a result of an application made after 24 June 2009.
SECTION 33 Revocation of approval as a provider for a breach of the VET quality and accountability requirements or of conditions
33(1)
The Minister may revoke a body's approval as a *VET provider if the Minister:
(a)
is satisfied that the body has either:
(i)
breached a *VET quality and accountability requirement; or
(ii)
breached a condition imposed on the body's approval; and
(b)
is satisfied that it is appropriate to take that action (see subclause (2)); and
(c)
complies with the requirements of clause 34.
Note:
Clause 12A allows conditions to be imposed on the body's approval.
History
Pt 1 cl 33(1) amended by No 72 of 2011, s 3 and Sch 1 items 26 and 27, by substituting para (a) and inserting the note at the end, applicable in relation to a body approved as a VET provider before, on or after 30 June 2011. Para (a) formerly read:
(a)
is satisfied that the body has breached a *VET quality and accountability requirement; and
33(2)
Without limiting the matters that the Minister may consider in deciding whether it is appropriate under this clause to revoke a body's approval as a *VET provider, the Minister may consider any or all of the following matters:
(a)
whether the breach in question is of a minor or major nature;
(b)
whether the breach has occurred before and, if so, how often;
(c)
the impact that the breach may have on the body's students;
(d)
the impact of the breach on the *VET courses of study provided by the body;
(e)
the impact of the breach on Australia's reputation as a provider of high quality education;
(f)
any other matter set out in the *VET Guidelines.
History
Pt 1 cl 33(2) amended by No 160 of 2012, s 3 and Sch 3 item 23, by omitting "Provider" before "Guidelines." from para (f), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 1 cl 33(2) amended by No 14 of 2011, s 3 and Sch 1 item 46, by substituting "*VET courses of study" for "*accredited VET courses" in para (d), effective 1 July 2011.
SECTION 33A Revocation of approval as a provider if provider etc. not a fit and proper person
33A(1)
The Minister may revoke a body's approval as a *VET provider if the Minister:
(a)
is satisfied that:
(i)
the body; or
(ii)
at least one person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body's affairs;
is not a fit and proper person; and
(b)
complies with the requirements of clause 34.
33A(2)
The Minister must, in deciding whether he or she is satisfied that a person is not a fit and proper person, take into account the matters specified in an instrument under subclause 6(4). The Minister may take into account any other matters he or she considers relevant.
History
Pt 1 cl 33A inserted by No 72 of 2011, s 3 and Sch 1 item 28, applicable in relation to an approval given before, on or after 30 June 2011.
Subdivision 5-C - Process for decisions on revocation under Subdivision 5-B
SECTION 34A
SECTION 34A Minister may seek information from relevant VET Regulator
34A
(Repealed by No 23 of 2013)
History
Pt cl 34A repealed by No 23 of 2013, s 3 and Sch 5 item 4, effective 29 March 2013. Cl 34A formerly read:
SECTION 34A Minister may seek information from relevant VET Regulator
34A
For the purpose of determining whether:
(a)
to revoke a body's approval as a *VET provider; or
(b)
to suspend a body's approval as a VET provider;
the Minister may seek information from the relevant *VET Regulator.
Pt 1 cl 34A substituted by No 160 of 2012, s 3 and Sch 2 item 25, applicable in relation to decisions to revoke or suspend a body's approval as a VET provider made before, on or after 29 November 2012. Pt 1 cl 34A formerly read:
SECTION 34A Minister may seek information from relevant VET Regulator
34A
For the purpose of deciding whether it is appropriate to:
(a)
revoke a body's approval as a *VET provider; or
(b)
determine that a body's approval as a *VET provider is to be suspended;
the Minister may seek information from the relevant *VET Regulator.
Pt 1 cl 34A inserted by No 14 of 2011, s 3 and Sch 1 item 47, effective 1 July 2011.
SECTION 34B
SECTION 34B Minister may seek information from TEQSA
34B
(Repealed by No 23 of 2013)
History
Pt 1 cl 34B repealed by No 23 of 2013, s 3 and Sch 5 item 4, effective 29 March 2013. Cl 34B formerly read:
SECTION 34B Minister may seek information from TEQSA
34B
For the purpose of determining whether:
(a)
to revoke a body's approval as a *VET provider; or
(b)
to suspend a body's approval as a VET provider;
the Minister may seek information from *TEQSA.
Pt 1 cl 34B inserted by No 160 of 2012, s 3 and Sch 2 item 25, applicable in relation to decisions to revoke or suspend a body's approval as a VET provider made before, on or after 29 November 2012.
SECTION 34Process for revoking approval
34(1)
Before revoking a body's approval as a *VET provider under Subdivision 5-B, the Minister must give the body notice in writing:
(a)
stating that the Minister is considering revoking the body's approval; and
(b)
stating the reasons why the Minister is considering revoking the body's approval; and
(c)
inviting the body to make written submissions to the Minister within 28 days concerning why the approval should not be revoked.
34(2)
In deciding whether or not to revoke a body's approval under Subdivision 5-B, the Minister must consider any submissions received from the body within the 28 day period.
34(3)
The Minister must notify the body in writing of his or her decision whether to revoke the body's approval under Subdivision 5-B. The notice:
(a)
must be in writing; and
(b)
must be given within the period of 28 days following the period in which submissions may have been given to the Minister under subclause (1); and
(c)
if the Minister decides to revoke the body's approval - must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.
History
Pt 1 cl 34(3) amended by No 126 of 2015, s 3 and Sch 1 item 288, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments" in para (c), effective 5 March 2016.
Pt 1 cl 34(3) amended by No 160 of 2012, s 3 and Sch 2 item 10, by substituting para (c), applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012. Para (c) formerly read:
(c)
if the Minister decides to revoke the body's approval - must specify the day that the revocation takes effect.
34(3A)
A notice of revocation under subclause (3) is a legislative instrument.
History
Pt 1 cl 34(3A) inserted by No 160 of 2012, s 3 and Sch 2 item 11, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012.
34(4)
If no notice is given within the period provided for in subclause (3), the Minister is taken to have decided not to revoke the approval.
34(5)
A decision of the Minister to revoke a body's approval as a *VET provider takes effect on the day that the notice of revocation under subclause (3) is registered in the *Federal Register of Legislation.
History
Pt 1 cl 34(5) amended by No 126 of 2015, s 3 and Sch 1 item 289, by substituting "*Federal Register of Legislation" for "*Federal Register of Legislative Instruments", effective 5 March 2016.
Pt 1 cl 34(5) substituted by No 160 of 2012, s 3 and Sch 2 item 12, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November2012. Pt 1 cl 34(5) formerly read:
34(5)
If the Minister decides to revoke the body's approval:
(a)
the revocation takes effect on the day specified in the notice under subclause (3); and
(b)
a copy of the notice must be published in the Gazette.
34(6)
If the notice of revocation under subclause (3) ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003, then the decision to revoke the approval ceases to have effect at the same time.
History
Pt 1 cl 34(6) amended by No 126 of 2015, s 3 and Sch 1 item 290, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003", effective 5 March 2016.
Pt 1 cl 34(6) inserted by No 160 of 2012, s 3 and Sch 2 item 12, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012.
SECTION 35 Determination retaining approval as a provider in respect of existing students
35(1)
The Minister may determine, in writing, that a revocation of a body's approval as a *VET provider under Subdivision 5-B is of no effect for the purposes of assistance payable to the body's students under Part 2 to the extent that the assistance relates to students of the body who have not completed the *VET courses of study in which they were enrolled with the body on the day referred to in subclause 34(5).
History
Pt 1 cl 35(1) amended by No 160 of 2012, s 3 and Sch 2 item 13, by substituting "referred to in subclause 34(5)" for "specified for the purposes of paragraph 34(5)(a)", applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012.
35(2)
The determination may be included in the notice of revocation under subclause 34(3).
35(3)
The body is taken, for the purposes of this Schedule, to continue to be a *VET provider, but only to the extent referred to in subclause (1).
35(4)
Subclause (3) does not prevent the Minister subsequently revoking the body's approval as a *VET provider under this Division.
SECTION 36 Suspension of approval as a provider
Suspension pending revocation
36(1)
The Minister may, by legislative instrument, determine that, with effect from a specified day, a body's approval as a *VET provider is suspended pending the making of a decision under Subdivision 5-B as to whether to revoke the body's approval as a provider.
36(2)
A copy of the determination must be given to the body concerned.
36(2A)
Before making a determination under subclause (1) in respect of a body, the Minister must give the body notice in writing:
(a)
stating that the Minister is considering suspending the body's approval; and
(b)
stating the reasons why the Minister is considering suspending the body's approval; and
(c)
inviting the body to respond to the Minister, in writing, within 14 days of the date of the notice.
History
Pt 1 cl 36(2A) inserted by No 72 of 2011, s 3 and Sch 1 item 29, applicable in relation to a notice given under subclause 36(2A) of Schedule 1A to the Higher Education Support Act 2003 (as inserted) after 30 June 2011.
36(2B)
In deciding whether or not to make a determination under subclause (1), the Minister must consider any response received from the body within the 14 day period.
History
Pt 1 cl 36(2B) inserted by No 72 of 2011, s 3 and Sch 1 item 29, applicable in relation to a notice given under subclause 36(2A) of Schedule 1A to the Higher Education Support Act 2003 (as inserted) after 30 June 2011.
36(3)
If the Minister makes a determination under subclause (1) in respect of a body, the Minister must give to the Body a notice under clause 34 within a reasonable period of time after giving a copy of the determination to the body.
History
Pt 1 cl 36(3) amended by No 72 of 2011, s 3 and Sch 1 item 30, by substituting "a reasonable period of time" for "48 hours", applicable in relation to a notice given under subclause 36(2A) of Schedule 1A to the Higher Education Support Act 2003 (as inserted) after 30 June 2011.
36(4)
A determination under this clause:
(a)
takes effect accordingly on the day specified in the determination; and
(b)
ceases to have effect if the Minister decides not to revoke the body's approval as a *VET provider.
Suspension for poor performance
36(5)
The *Secretary may, in writing, suspend a body's approval as a *VET provider if:
(a)
an audit of the body has been conducted about any or all of the matters in paragraph 26(1)(b); and
(b)
the audit identified one or more concerns; and
(c)
those concerns have yet to be resolved as described in paragraph (6)(b).
History
Pt 1 cl 36(5) inserted by No 168 of 2015, s 3 and Sch 1 item 8B, effective 31 December 2015.
36(6)
The suspension:
(a)starts on the day of the decision under subclause (5); and
(b)
ends on the day (if any) that the *Secretary notifies the body, in writing, that the Secretary reasonably believes that those concerns have been satisfactorily resolved by the body in accordance with a plan agreed between the body and the Commonwealth.
History
Pt 1 cl 36(6) inserted by No 168 of 2015, s 3 and Sch 1 item 8B, effective 31 December 2015.
36(7)
Before making a decision under subclause (5), the *Secretary must give the body a notice in writing:
(a)
stating that the Secretary is considering making the decision; and
(b)
stating the reasons why the Secretary is considering making the decision; and
(c)
inviting the body to respond to the Secretary, in writing, within 14 days; and
(d)
informing the body that, if no response is received within the 14 day period, the Secretary may proceed to make the decision.
History
Pt 1 cl 36(7) inserted by No 168 of 2015, s 3 and Sch 1 item 8B, effective 31 December 2015.
36(8)
In deciding whether to make the decision under subclause (5), the *Secretary must consider any response received from the body within the 14 day period.
History
Pt 1 cl 36(8) inserted by No 168 of 2015, s 3 and Sch 1 item 8B, effective 31 December 2015.
36(9)
The *Secretary must give written notice of a decision under subclause (5) to the body. The notice must be given within 14 days after the day the decision was made.
History
Pt 1 cl 36(9) inserted by No 168 of 2015, s 3 and Sch 1 item 8B, effective 31 December 2015.
SECTION 37 Determination retaining approval as a provider in respect of existing students following suspension of approval
Suspension pending revocation
37(1)
The Minister may determine, in writing, that a suspension of a body's approval as a *VET provider under subclause 36(1) is of no effect for purposes of or relating to assistance payable to the body's students under Part 2 to the extent that the assistance relates to students of the body who have not completed the *VET courses of study in which they were enrolled with the body on the day specified for the purposes of paragraph 36(4)(a).
History
Pt 1 cl 37(1) amended by No 168 of 2015, s 3 and Sch 1 item 8D, by substituting "subclause 36(1) is of no effect for purposes of or relating to" for "clause 36 is of no effect for the purposes of", effective 31 December 2015.
37(2)
A copy of the determination must be given to the body concerned.
37(3)
The body is taken, for the purposes of this Schedule, to continue to be a *VET provider, but only to the extent referred to in subclause (1).
37(4)
Subclause (3) does not prevent the Minister subsequently revoking the body's approval as a *VET provider under this Division.
37(5)
A determination made under subclause (1) is not a legislative instrument.
Suspension for poor performance - no impact on existing students
37(6)
A suspension of a body's approval as a *VET provider under subclause 36(5) is of no effect for purposes of or relating to assistance payable to the body's students under Part 2 to the extent that the assistance relates to students of the body who have not completed the *VET courses of study in which they were enrolled with the body before the day the suspension starts (see paragraph 36(6)(a)).
Note:
One consequence of this subclause is that clauses 45E and 46B (which apply if the body's VET FEE-HELP account is in deficit at the end of a calendar year) will continue to apply to the body during the suspension.
History
Pt 1 cl 37(6) inserted by No 168 of 2015, s 3 and Sch 1 item 8E, effective 31 December 2015.
SECTION 38
SECTION 38 Revocations are legislative instruments
38
(Repealed by No 160 of 2012)
History
Pt 1 cl 38 repealed by No 160 of 2012, s 3 and Sch 2 item 14, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012. Pt 1 cl 38 formerly read:
SECTION 38 Revocations are legislative instruments
38(1)
A notice of revocation under subclause 34(3) is a legislative instrument.
38(2)
A decision of the Minister to revoke the approval of a *VET provider takes effect at the later of the following times:
(a)
on the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the notice could be passed;
(b)
the day specified in the notice of revocation under subclause 34(3) as the day on which the revocation takes effect.
Subdivision 5-D - Revocation of approval on application
SECTION 39 Revocation of approval as a provider on application
39(1)
The Minister must revoke the approval of a body as a *VET provider if the body requests the Minister in writing to revoke the approval.
History
Pt 1 cl 39(1) amended by No 168 of 2015, s 3 and Sch 1 item 8F, by substituting "must revoke" for "may revoke", applicable in relation to requests for revocation made on or after 1 January 2016.
39(2)
The request must be given to the Minister at least 30 days before the day on which the revocation is requested to have effect.
39(2A)
The revocation is subject to the condition that, after the revocation:
(a)
clauses 45E and 46B continue to apply to the body as if the body were still approved as a *VET provider; and
(b)
other provisions of this Act, or the *VET Guidelines, that:
(i)
relate (directly or indirectly) to entitlements to *VET FEE-HELP assistance arising before the revocation; and
(ii)
are specified in the notice of revocation under subclause (3) of this clause;
continue to apply to the body as if the body were still approved as a VET provider.
History
Pt 1 cl 39(2A) inserted by No 168 of 2015, s 3 and Sch 1 item 8G, applicable in relation to requests for revocation made on or after 1 January 2016.
39(3)
The Minister must cause the body to be notified of the revocation. The notice must:
(a)
be in writing; and
(b)
be given to the body at least 14 days before the day on which the revocation is to take effect.
39(4)
A notice of revocation under subclause (3) is a legislative instrument.
39(5)
The revocation has effect on the day requested unless another day is specified in the notice under subclause (3).
Subdivision 5-E - Notice of approval or revocation ceasing to have effect under the Legislation Act 2003
History
Pt 1 subdiv 5-E heading substituted by No 126 of 2015, s 3 and Sch 1 item 291, effective 5 March 2016. The heading formerly read:
Subdivision 5-E - Notice of approval or revocation ceasing to have effect under the Legislative Instruments Act 2003
Pt 1 subdiv 5-E heading substituted by No 160 of 2012, s 3 and Sch 2 item 15, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012. The heading formerly read:
Subdivision 5-E - Notice of approval ceasing to have effect under the Legislative Instruments Act 2003
Pt 1 subdiv 5-E inserted by No 39 of 2009, s 3 and Sch 2 item 8, effective 24 June 2009. For application and transitional provisions, see note under s 16-5(3).
SECTION 39A Notice of approval ceasing to have effect under the
Legislation Act 2003
39A(1)
This clause applies if:
(a)
a decision of the Minister to approve a body as a *VET provider has taken effect; and
(b)
the body ceases to be approved as a VET provider because the notice of the approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.
History
Pt 1 cl 39A(1) amended by No 126 of 2015, s 3 and Sch 1 item 293, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003" in para (b), effective 5 March 2016.
Pt 1 cl 39A(1) amended by No 160 of 2012, s 3 and Sch 1 item 19, by omitting "corporate" after "body" in para (a), applicable in relation to a VET provider approved before, on or after 1 January 2013.
39A(2)
The fact that the body ceases to be approved as a *VET provider does not:
(a)
affect:
(i)
the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or
(ii)
anything duly done or suffered in relation to the body before the cessation; or
(b)
affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or
(c)
affect any penalty, forfeiture or punishment incurred in respect of the body having been a VET provider; or
(d)
affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the body had not ceased to be approved as a VET provider.
History
Pt 1 cl 39A inserted by No 39 of 2009, s 3 and Sch 2 item 8, effective 24 June 2009. For application and transitional provisions, see note under s 16-5(3).
SECTION 39B Notice of revocation ceasing to have effect under the
Legislation Act 2003
39B(1)
This clause applies if:
(a)
a decision of the Minister to revoke a body's approval as a *VET provider has taken effect; and
(b)
the decision to revoke the approval ceases to have effect because the notice of revocation ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.
History
Pt 1 cl 39B(1) amended by No 126 of 2015, s 3 and Sch 1 item 295, by substituting "Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003" for "Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003" in para (b), effective 5 March 2016.
39B(2)
The fact that the decision to revoke the approval ceases to have effect does not:
(a)
affect:
(i)
the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or
(ii)
anything duly done or suffered in relation to the body before the cessation; or
(b)
affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or
(c)
affect any penalty, forfeiture or punishment incurred in respect of the body before the cessation; or
(d)
affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the decision to revoke the approval had not ceased to have effect.
History
Pt 1 cl 39B inserted by No 160 of 2012, s 3 and Sch 2 item 16, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012.
SECTION 29
Revocation of approval
Revocation of approval
29(1)
If an approval of a body as a *VET provider is in force immediately before 1 July 2021, the approval is revoked at the start of that day.
Continuing application of Act etc.
29(2)
Despite the revocation of a body's approval as a *VET provider by subclause (1):
(a)
the Act, and the *VET Guidelines, continue to apply in relation to the body on and after 1 July 2021 as if the body were still a VET provider; and
(b)
any conditions:
(i)
imposed on the approval of the body; and
(ii)
in effect immediately before 1 July 2021;
continue to apply to the body on and after 1 July 2021 as if the body were still a VET provider.
29(3)
Subclause (2) applies for the purpose of dealing with or resolving any matter that arose under this Act during, or that relates to, the period when the body was approved as a *VET provider.
29(4)
To avoid doubt, if a body that has had its approval revoked by subclause (1) would be required or empowered, but for the revocation, to do a thing under, or for the purposes of, Subdivision 7-B of Division 7 of Part 2 (which deals with re-crediting), the body is, on and after 1 July 2021, required or empowered to do the thing as if the body were still a *VET provider.
Interaction with the Acts Interpretation Act 1901
29(5)
This clause does not limit the effect of section 7 of the Acts Interpretation Act 1901.
History
Pt 1 cl 29 substituted by No 17 of 2021, s 3 and Sch 1 item 14, effective 1 July 2021.
Division 5A - Civil penalty provisions and enforcement
History
Pt 1 Div 5A inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
Subdivision 5A-A - Civil penalty provisions
History
Pt 1 Subdiv 5A-A inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DA
Civil penalty provisions
Enforceable civil penalty provisions
39DA(1)
Each *civil penalty provision of this Division is enforceable under Part 4 of the *Regulatory Powers Act.
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
39DA(2)
For the purposes of Part 4 of the *Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the *civil penalty provisions:
(a)
the *Secretary;
(b)
an SES employee, or an acting SES employee, in the Department.
Relevant court
39DA(3)
For the purposes of Part 4 of the *Regulatory Powers Act, each *applicable court is a relevant court in relation to the *civil penalty provisions.
History
Pt 1 cl 39DA inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DB
Civil penalty - publishing information that suggests VET FEE-HELP assistance is not a loan etc.
39DB(1)
A person contravenes this subclause if:
(a)
the person is a *VET provider; and
(b)
the VET provider publishes information, or causes information to be published; and
(c)
the information suggests that:
(i)
*VET FEE-HELP assistance for a *VET unit of study or *VET course of study is not in the nature of a loan, or does not need to be repaid; or
(ii)
if a student receives VET FEE-HELP assistance for such a unit or course, that the unit or course is free from any fees or charges.
Civil penalty: 60 penalty units.
39DB(2)
A person contravenes this subclause if:
(a)
the person publishes information; and
(b)
the person does so as agent for a *VET provider; and
(c)
the information suggests that:
(i)
*VET FEE-HELP assistance for a *VET unit of study or *VET course of study is not in the nature of a loan, or does not need to be repaid; or
(ii)
if a student receives VET FEE-HELP assistance for such a unit or course, that the unit or course is free from any fees or charges.
Civil penalty: 60 penalty units.
History
Pt 1 cl 39DB inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DC
Civil penalty - inappropriate inducements
39DC(1)
A person contravenes this subclause if:
(a)
the person is a *VET provider; and
(b)
the VET provider:
(i)
offers a person a benefit; or
(ii)
provides a person with a benefit; or
(iii)
causes a person to be offered or provided with a benefit; and
(c)
the benefit would be reasonably likely to induce a person (the
student
) to:
(i)
enrol in a *VET unit of study or *VET course of study; and
(ii)
complete, sign and give an *appropriate officer of the VET provider a *request for Commonwealth assistance relating to the unit or course; and
(d)
the student receives *VET FEE-HELP assistance for that unit or course.
Civil penalty: 60 penalty units.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 31(1) provides that subclause 39DC(1) is applicable in relation to conduct referred to in paragraph (b) of that subclause that happens on or after 1 January 2016.]
39DC(2)
A person contravenes this subclause if:
(a)
the person offers a person a benefit, or provides a person with a benefit; and
(b)
the person does so as agent for a *VET provider; and
(c)
the benefit would be reasonably likely to induce a person (the
student
) to:
(i)
enrol in a *VET unit of study or *VET course of study; and
(ii)
complete, sign and give an *appropriate officer of the VET provider a *request for Commonwealth assistance relating to the unit or course; and
(d)
the student receives *VET FEE-HELP assistance for that unit or course.
Civil penalty: 60 penalty units.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 31(2) provides that subclause 39DC(2) is applicable in relation to conduct referred to in paragraph (a) of that subclause that happens on or after 1 January 2016.]
39DC(3)
To avoid doubt, the person in paragraph (1)(b) or (2)(a) who is offered, or provided with, the benefit need not be the student.
History
Pt 1 cl 39DC inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DD
Appropriate and inappropriate inducements
39DD(1)
Subclauses 39DC(1) and (2), and subclause (2) of this clause, do not apply in relation to any of the following benefits:
(a)
the content and quality of the *VET unit of study or *VET course of study;
(b)
the amount of *tuition fees of the unit or course (other than so much of the fees as is conditional on a person identifying other persons as prospective students for a unit or course);
(c)
*VET FEE-HELP assistance for the unit or course;
(d)
the use of a thing if:
(i)
the use is limited to the period the student is participating in the unit or course; and
(ii)
the use is required or necessary for the completion of the unit or course (having regard to the learning objectives and outcomes of the unit or course); and
(iii)
the use of such a thing is available on the same terms to all students, of a kind specified in the *VET Guidelines for the purposes of this subparagraph, who are participating in the unit or course.
39DD(2)
Without limiting subclauses 39DC(1) and (2), those subclauses apply in relation to the following benefits:
(a)
the use of an electronic device outside the period the student is participating in the *VET unit of study or *VET course of study;
(b)
internet use, or the use of software, outside that period;
(c)
travel, entertainment, hospitality or accommodation services;
(d)
vouchers redeemable for goods or services;
(e)
money (other than amounts covered by paragraph (1)(b) or (c)).
History
Pt 1 cl 39DD inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DE
39DE
Civil penalty - failure to provide VET FEE-HELP notices
A person contravenes this clause if:
(a)
the person is a *VET provider; and
(b)
the VET provider fails to comply with subclause 64(1), (2), (2A) or (3).
Civil penalty: 60 penalty units.
History
Pt 1 cl 39DE inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DF
Civil penalty - failure to comply with student requests
39DF(1)
A person contravenes this subclause if:
(a)
the person is a *VET provider; and
(b)
the VET provider enrols another person (the
student
) in a *VET unit of study; and
(c)
the student is entitled to *VET FEE-HELP assistance for the unit; and
(d)
before the end of the *census date for the unit, the student requests, in writing, the VET provider to:
(i)
cancel the enrolment; or
(ii)
withdraw the student's *request for Commonwealth assistance relating to the unit or the *VET course of study of which the unit forms a part; and
(e)
the VET provider fails to comply with the request before the end of that census date.
Civil penalty: 60 penalty units.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 31(3) provides that subclause 39DF(1) is applicable in relation to requests referred to in paragraph (d) of that subclause that are given on or after 1 January 2016.]
39DF(2)
For the purposes of paragraph (1)(c), disregard subparagraph 43(1)(f)(ii) and paragraph 45C(1)(c).
History
Pt 1 cl 39DF inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DG
Civil penalty - charging a fee etc. for a student to cancel an enrolment or request for assistance
39DG(1)
A person contravenes this subclause if:
(a)
the person is a *VET provider; and
(b)
the VET provider enrols another person (the
student
) in a *VET unit of study; and
(c)
the student is entitled to *VET FEE-HELP assistance for the unit; and
(d)
before the end of the *census date for the unit, the student requests, in writing, the VET provider to:
(i)
cancel that enrolment; or
(ii)
withdraw the student's *request for Commonwealth assistance relating to the unit or the *VET course of study of which the unit forms a part; and
(e)
the VET provider charges the student a fee, or imposes a penalty, (however described) in order to do so.
Civil penalty: 60 penalty units.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 31(4) provides that subclause 39DG(1) is applicable in relation to requests referred to in paragraph (d) of that subclause that are given on or after 1 January 2016.]
39DG(2)
For the purposes of paragraph (1)(c), disregard subparagraph 43(1)(f)(ii) and paragraph 45C(1)(c).
History
Pt 1 cl 39DG inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DH
Civil penalty - accepting requests for Commonwealth assistance etc. when student not entitled
39DH(1)
A person contravenes this subclause if:
(a)
the person is a *VET provider; and
(b)
an *appropriate officer of the VET provider is given a *request for Commonwealth assistance by another person (the
student
) relating to a *VET unit of study or the *VET course of study of which the unit forms a part; and
(c)
the VET provider treats the student as being entitled to *VET FEE-HELP assistance for the unit; and
(d)
the student is not so entitled.
Civil penalty: 60 penalty units.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 31(5) provides that subclause 39DH(1) is applicable in relation to requests referred to in paragraph (b) of that subclause that are given on or after 1 January 2016.]
39DH(2)
A person contravenes this subclause if:
(a)
the person is a *VET provider; and
(b)
an *appropriate officer of the VET provider is given a form by another person (the
student
); and
(c)
subclause 88(3A) (about certain students under 18 years old) applies to the student; and
(d)
that form is not signed by a *responsible parent of the student; and
(e)
that form would have been a *request for Commonwealth assistance relating to:
(i)
a *VET unit of study; or
(ii)
the *VET course of study of which the unit forms a part;
if it had been signed by a responsible parent of the student; and
(f)
the VET provider treats the student as being entitled to *VET FEE-HELP assistance for the unit.
Civil penalty: 60 penalty units.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 31(6) provides that subclause 39DH(2) is applicable in relation to forms referred to in paragraph (b) of that subclause that are given on or after 1 January 2016.]
History
Pt 1 cl 39DH inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DI
Civil penalty - failure to advise about requests etc.
39DI(1)
A person contravenes this subclause if:
(a)
the person is a *VET provider; and
(b)
the VET provider enrols another person (the
student
) in a *VET unit of study; and
(c)
the student has not already given an *appropriate officer of the VET provider a *request for Commonwealth assistance relating to the *VET course of study of which the unit forms a part; and
(d)
the student enrols in the unit less than 2 business days before the *census date for the unit; and
(e)
before enrolling the student, the VET provider failed to advise the student that the student would not be able to receive *VET FEE-HELP assistance for the unit; and
(f)
the student completes, signs and gives an appropriate officer of the VET provider a request for Commonwealth assistance relating to the unit or the VET course of study of which the unit forms a part.
Civil penalty: 60 penalty units.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 31(7) provides that subclause 39DI(1) is applicable in relation to enrolments on or after 1 January 2016.]
39DI(2)
A person contravenes this subclause if:
(a)
the person is a *VET provider; and
(b)
the VET provider enrols another person (the
student
) in a *VET unit of study; and
(c)
the student completes, signs and gives an *appropriate officer of the VET provider a *request for Commonwealth assistance relating to the unit or a *VET course of study of which the unit forms a part; and
(d)
the request is so given less than 2 business days after the student enrols in the unit; and
(e)
either or both of the following subparagraphs applies:
(i)
before enrolling the student, the VET provider failed to advise the student that *VET FEE-HELP assistance for the unit can only be received if the request is given at least 2 business days after enrolling;
(ii)
the VET provider encouraged the student to give the request so that it would be given less than 2 business days after enrolling.
Civil penalty: 60 penalty units.
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 31(7) provides that subclause 39DI(2) is applicable in relation to enrolments on or after 1 January 2016.]
History
Pt 1 cl 39DI inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39DJ
39DJ
Civil penalty - failure to apportion fees appropriately
A person contravenes this clause if:
(a)
the person is a *VET provider; and
(b)
the VET provider enrols another person (the
student
) in a *VET unit of study; and
(c)
the student receives *VET FEE-HELP assistance for the unit; and
(d)
the VET provider charges the student *tuition fees for the unit; and
(e)
for the purposes of clause 27A, the *VET Guidelines specify when the tuition fees may be charged; and
(f)
the tuition fees are not charged in accordance with those VET Guidelines.
Civil penalty: 60 penalty units.
History
Pt 1 cl 39DJ inserted by No 168 of 2015, s 3 and Sch 1 item 26, applicable in relation to VET courses of study that commence on or after 1 January 2016.
SECTION 39DK
39DK
Civil penalty - failure to publish fees
A person contravenes this clause if:
(a)
the person is a *VET provider; and
(b)
the VET provider enrols another person (the
student
) in a *VET unit of study; and
(c)
the student receives *VET FEE-HELP assistance for the unit; and
(d)
the VET provider charges the student *tuition fees for the unit; and
(e)
on the day before the student enrols in the unit, the tuition fees were not available on the VET provider's website in a way that was readily accessible by the public.
Civil penalty: 60penalty units.
History
Pt 1 cl 39DK inserted by No 168 of 2015, s 3 and Sch 1 item 26, applicable in relation to enrolments on or after 1 January 2016.
SECTION 39DL
39DL
Civil penalty - failure to report data
A person contravenes this clause if:
(a)
the person is a *VET provider; and
(b)
the VET provider enrols another person (the
student
) in a *VET unit of study; and
(c)
the student receives *VET FEE-HELP assistance for the unit; and
(d)
the VET provider is subject to a requirement under subclause 24(1) or (2) to provide information relating to the VET FEE-HELP assistance; and
(e)
the VET provider fails to comply with the requirement.
Civil penalty: 60 penalty units.
History
Pt 1 cl 39DL inserted by No 168 of 2015, s 3 and Sch 1 item 26, applicable in relation to enrolments on or after 1 January 2016.
Subdivision 5A-B - Infringement notices
History
Pt 1 Subdiv 5A-B inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39EA
39EA
Infringement notices
A *civil penalty provision of this Division is subject to an infringement notice under Part 5 of the *Regulatory Powers Act.
Note:
Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
History
Pt 1 cl 39EA inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39EB
39EB
Infringement officers
For the purposes of Part 5 of the *Regulatory Powers Act, an infringement officer in relation to the *civil penalty provisions is:
(a)
each *NVETR staff member who is:
(i)
an SES employee or an acting SES employee; or
(ii)
an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position; or
(b)
each SES employee, or an acting SES employee, in the Department.
History
Pt 1 cl 39EB inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39EC
39EC
Relevant chief executive
For the purposes of Part 5 of the *Regulatory Powers Act, the relevant chief executive in relation to the *civil penalty provisions is:
(a)
for an infringement notice given by an infringement officer covered by paragraph 39EB(a) - the *National VET Regulator; and
(b)
for an infringement notice given by an infringement officer covered by paragraph 39EB(b) - the *Secretary.
History
Pt 1 cl 39EC amended by No 77 of 2020, s 3 and Sch 1 item 64, by substituting "the *National VET Regulator" for "each *NVETR Commissioner" in para (a), effective 1 January 2021.
Pt 1 cl 39EC inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
Subdivision 5A-C - Monitoring and investigation powers
History
Pt 1 Subdiv 5A-C inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39FA
Monitoring powers
39FA(1)
Subdivision 5A-A is subject to monitoring under Part 2 of the *Regulatory Powers Act.
Note:
Part 2 of the Regulatory Powers Act creates a framework for monitoring whether Subdivision 5A-A has been complied with. It includes powers of entry and inspection.
39FA(2)
Information given in compliance or purported compliance with a provision of Subdivision 5A-A is subject to monitoring under Part 2 of the *Regulatory Powers Act.
Note:
Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
History
Pt 1 cl 39FA inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39FB
Monitoring powers - persons exercising relevant roles etc.
39FB(1)
For the purposes of Part 2 of the *Regulatory Powers Act, as it applies in relation to Subdivision 5A-A of this Schedule:
(a)
each *civil penalty provision of this Division is related to Subdivision 5A-A of this Schedule; and
(b)
each *Departmental investigator and *NVETR investigator is an authorised applicant; and
(c)
each Departmental investigator and NVETR investigator is an authorised person; and
(d)
a *judicial officer is an issuing officer; and
(e)
for an authorised person who is a Departmental investigator, the *Secretary is the relevant chief executive; and
(f)
for an authorised person who is a NVETR investigator, the *National VET Regulator is the relevant chief executive; and
(g)
each *applicable court is the relevant court.
History
Pt 1 cl 39FB(1) amended by No 77 of 2020, s 3 and Sch 1 item 64, by substituting "the *National VET Regulator" for "each *NVETR Commissioner" in para (f), effective 1 January 2021.
Person assisting
39FB(2)
An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the *Regulatory Powers Act in relation to a provision of Subdivision 5A-A of this Schedule.
History
Pt 1 cl 39FB inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39FC
39FC
Investigation powers
Each *civil penalty provision of this Division is subject to investigation under Part 3 of the *Regulatory Powers Act.
Note:
Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
History
Pt 1 cl 39FC inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39FD
Investigation powers - persons exercising relevant roles etc.
39FD(1)
For the purposes of Part 3 of the *Regulatory Powers Act, as it applies in relation to evidential material that relates to a *civil penalty provision of this Division:
(a)
each *Departmental investigator and *NVETR investigator is an authorised applicant; and
(b)
each Departmental investigator and NVETR investigator is an authorised person; and
(c)
a *judicial officer is an issuing officer; and
(d)
for an authorised person who is a Departmental investigator, the *Secretary is the relevant chief executive; and
(e)
for an authorised person who is a NVETR investigator, the *National VET Regulator is the relevant chief executive; and
(f)
each *applicable court is the relevant court.
History
Pt 1 cl 39FD(1) amended by No 77 of 2020, s 3 and Sch 1 item 64, by substituting "the *National VET Regulator" for "each *NVETR Commissioner" in para (e), effective 1 January 2021.
Person assisting
39FD(2)
An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the *Regulatory Powers Act in relation to evidential material that relates to a provision of Subdivision 5A-A of this Schedule.
History
Pt 1 cl 39FD inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
Subdivision 5A-D - Other matters
History
Pt 1 Subdiv 5A-D inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39GA
Appointment of investigators
39GA(1)
The *Secretary may, in writing, appoint a person as a
Departmental investigator
for the purposes of this Division.
39GA(2)
The *National VET Regulator may, in writing, appoint a *NVETR staff member as a
NVETR investigator
for the purposes of this Division.
History
Pt 1 cl 39GA(2) amended by No 77 of 2020, s 3 and Sch 1 item 65, by substituting "The *National VET Regulator" for "A *NVETR Commissioner", effective 1 January 2021.
39GA(3)
A person must not be appointed as a *Departmental investigator, or a *NVETR investigator, unless the appointer is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of such an investigator.
39GA(4)
A *Departmental investigator, and a *NVETR investigator, must, in exercising powers as such, comply with any directions of the appointer.
39GA(5)
If a direction is given under subclause (4) in writing, the direction is not a legislative instrument.
History
Pt 1 cl 39GA inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39GB
39GB
Functions and powers
The functions and powers of a person referred to in:
(a)
subclause 39DA(2) (about authorised applicants); or
(b)
clause 39EB or 39EC (about infringement notices); or
(c)
paragraph 39FB(1)(b), (c), (d), (e) or (f) (about monitoring powers); or
(d)
paragraph 39FD(1)(a), (b), (c), (d) or (e) (about investigation powers);
include those conferred by Part 2, 3, 4 or 5 (as applicable) of the *Regulatory Powers Act in relation to this Division.
History
Pt 1 cl 39GB inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39GC
Delegation by relevant chief executive etc.
39GC(1)
The *Secretary may, in writing, delegate his or her powers and functions that:
(a)
arise under the *Regulatory Powers Act as the relevant chief executive; and
(b)
relate to this Division;
to an SES employee, or an acting SES employee, in the Department.
39GC(2)
The *National VET Regulator may, in writing, delegate his or her powers and functions that:
(a)
arise under the *Regulatory Powers Act as the relevant chief executive and relate to this Division; or
(b)
arise under clause 39GA of this Schedule;
to an *NVETR staff member who is:
(c)
an SES employee or an acting SES employee; or
(d)
an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position.
History
Pt 1 cl 39GC(2) amended by No 77 of 2020, s 3 and Sch 1 item 65, by substituting "The *National VET Regulator" for "A *NVETR Commissioner", effective 1 January 2021.
39GC(3)
A person exercising powers or performing functions under a delegation under subclause (1) or (2) must comply with any directions of the delegator.
39GC(4)
A person must not exercise powers or perform functions under a delegation under subclause (1) or (2) in relation to an infringement notice given by the person.
History
Pt 1 cl 39GC inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
SECTION 39GD
39GD
Other enforcement action
To avoid doubt, action may be taken under this Division in addition to, or instead of, any action that may be taken under any other provision of this Act, including under any or all of the following provisions of this Schedule:
(a)
clause 12A (about imposing conditions on an approval);
(b)
clause 26A (about compliance notices);
(c)
(Repealed by No 17 of 2021)
(d)
Subdivision 7-B (about re-crediting *HELP balances.
History
Pt 1 cl 39GD amended by No 17 of 2021, s 3 and Sch 1 item 15, by repealing para (c), effective 1 July 2021. For saving provision, see note under Div 5 heading. Para (c) formerly read:
(c)
Division 5 (about when a body ceases to be a VET provider);
Pt 1 cl 39GD amended by No 76 of 2018, s 3 and Sch 3 item 71, by substituting "*HELP balances" for "FEE-HELP balances" in para (d), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Pt 1 cl 39GD inserted by No 168 of 2015, s 3 and Sch 1 item 26, effective 31 December 2015.
PART 2 - VET FEE-HELP assistance
Division 6 - Introduction
SECTION 40
40
What this Part is about
A student may be entitled to VET FEE-HELP assistance for VET units of study if certain requirements are met.
The amount of assistance to which the student may be entitled is based on his or her VET tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a VET provider to discharge the student's liability to pay his or her VET tuition fees.
Note 1:
Amounts of assistance under this Part may form part of a person's HELP debts that the Commonwealth recovers under Chapter 4.
Note 2:
VET FEE-HELP assistance will be phased out during 2017 and 2018: see subclauses 43(3) to (7).
History
Pt 2 cl 40 amended by No 93 of 2017, s 3 and Sch 1 item 13, by substituting "43(3) to (7)" for "43(3) to (5)" in note 2, effective 20 September 2017.
Pt 2 cl 40 amended by No 100 of 2016, s 3 and Sch 1 items 18 and 19, by substituting "Note 1" for "Note" in the note and inserting note 2, effective 1 January 2017. For transitional provision, see note under s 137-19.
SECTION 41
The VET Guidelines
41(1)
*VET FEE-HELP assistance is also dealt with in the *VET Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
41(2)
*VET tuition fees are also dealt with in the *VET Guidelines.
Note:
The VET Guidelines are made by the Minister under clause 99.
History
Pt 2 cl 41 substituted by No 160 of 2012, s 3 and Sch 3 item 24, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013. Pt 2 cl 41 formerly read:
SECTION 41 The VET FEE-HELP Guidelines
41
*VET FEE-HELP assistance is also dealt with in the *VET FEE-HELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
SECTION 42
42
The VET Tuition Fee Guidelines
(Repealed by No 160 of 2012)
History
Pt 2 cl 42 repealed by No 160 of 2012, s 3 and Sch 3 item 24, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013. Cl 42 formerly read:
SECTION 42 The VET Tuition Fee Guidelines
42
*VET tuition fees are also dealt with in the *VET Tuition Fee Guidelines.
Note:
The VET Tuition Fee Guidelines are made by the Minister under clause 99.
Division 7 - Who is entitled to VET FEE-HELP assistance
Subdivision 7-A - Basic rules
SECTION 43
Entitlement to VET FEE-HELP assistance
43(1)
Subject to this clause, a student is entitled to *VET FEE-HELP assistance for a *VET unit of study if:
(a)
the student meets the citizenship or residency requirements under clause 44; and
(b)
the student's *HELP balance is greater than zero; and
(c)
the *census date for the unit is on or after 1 January 2008; and
(d)
the unit meets the course requirements under clause 45; and
(e)
the unit is, or is to be, undertaken as part of a *VET course of study; and
(ea)
the student meets the entry procedure requirements under clause 45B; and
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 24(4) provides that para (ea) is applicable in relation to VET courses of study enrolled in on or after 1 January 2016.]
(f)
the student:
(i)
enrols in the unit at least 2 business days before the census date for the unit; and
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 24(5) provides that para (f)(i) is applicable in relation to VET units of study enrolled in on or after 1 January 2016.]
(ii)
at the end of the census date, remained so enrolled; and
(fa)
in a case where the student is not already entitled to VET FEE-HELP assistance for another VET unit of study forming part of the course - the body with whom the student is enrolled is approved as a *VET provider:
(i)
for the day of the enrolment; or
(ii)
if that day falls within a period when the body's approval as a VET provider is suspended under subclause 36(5) - for a later day because that suspension has ended; and
(fb)
if the VET provider was approved as a VET provider after 2015, the course is:
(i)
one of the *qualifying VET courses that enabled paragraph 6(1)(ca) or (1A)(da) to be satisfied for the purposes of that approval; or
(ii)
a qualifying VET course that superseded such a course directly or indirectly without interruption; and
(g)
the student *meets the tax file number requirements (see clause 80); and
(h)
the student meets the request for Commonwealth assistance requirements under clause 45C; and
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 24(6) provides that para (h) is applicable in relation to requests for Commonwealth assistance given on or after 1 January 2016.]
(i)
the student meets any other requirements set out in the *VET Guidelines.
Note 1:
For the purposes of paragraph (e), clause 45A affects whether a person undertakes a VET unit of study as part of a VET course of study.
Note 2:
For the purposes of paragraph (fa), a body's approval as a VET provider ceases while the approval is suspended (see clause 29). If this approval is suspended when the student first enrols in units forming part of the course, the student can only become entitled to VET FEE-HELP assistance when that suspension ends.
History
Pt 2 cl 43(1) amended by No 76 of 2018, s 3 and Sch 3 item 72, by substituting "*HELP balance" for "*FEE-HELP balance" in para (b), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Pt 2 cl 43(1) amended by No 168 of 2015, s 3 and Sch 1 items 9-11A, by inserting para (ea), substituting para (f)(i), inserting para (fa) and (fb), and substituting para (h) and the note, effective 31 December 2015. Para (f)(i), (h) and the note formerly read:
(f)(i)
enrolled in the unit on or before the census date for the unit; and
(h)
the student has, on or before the census date, completed, signed and given to an *appropriate officer of the *VET provider a *request for Commonwealth assistance in relation to the unit or, where the VET course of study of which the unit forms a part is, or is to be, undertaken with the provider, in relation to the VET course of study; and
Note:
Clause 45A affects whether a person undertakes a VET unit of study as part of a VET course of study.
Pt 2 cl 43(1) amended by No 160 of 2012, s 3 and Sch 3 item 25, by omitting "FEE-HELP" before "Guidelines" in para (i), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 2 cl 43(1) renumbered from cl 43 and amended by No 178 of 2011, s 3 and Sch 4 item 6, by substituting "(1) Subject to this clause, a student" for "A student", applicable in relation to units of study whose census dates are on or after 1 January 2012. For transitional provisions see note under s 36-15(1A).
Pt 2 cl 43 amended by No 39 of 2009, 2 3 and Sch 1 item 7, by inserting the note at the end, effective 24 June 2009.
Pt 2 cl 43 amended by No 11 of 2008, s 3 and Sch 1 item 7, by inserting para (i) at the end, effective 20 March 2008.
43(2)
A student is not entitled to *VET FEE-HELP assistance for a *VET unit of study if:
(a)
the unit forms a part of a *VET course of study; and
(b)
the VET course of study is, or is to be, undertaken by the student primarily at an overseas campus.
History
Pt 2 cl 43(2) inserted by No 178 of 2011, s 3 and Sch 4 item 7, applicable in relation to units of study whose census dates are on or after 1 January 2012. For transitional provisions see note under s 36-15(1A).
43(3)
A student is not entitled to *VET FEE-HELP assistance for a *VET unit of study if:
(a)
the *census date for the unit is on or after 1 January 2017; or
(b)
if the student is covered by subclause (4) - the census date for the unit is on or after:
(i)
unless subparagraph (ii) applies - 1 January 2018; or
(ii)
if the Minister is satisfied that exceptional circumstances justify continued entitlement to VET FEE-HELP assistance for the student - a day determined in writing by the Minister.
History
Pt 2 cl 43(3) inserted by No 100 of 2016, s 3 and Sch 1 item 20, effective 1 January 2017. For transitional provision, see note under s 137-19.
43(4)
A student is covered by this subclause if:
(a)
immediately before 1 January 2017, the student was enrolled in the *VET course of study of which the *VET unit of study forms a part; and
(b)
the unit is provided:
(i)
by the *VET provider with whom the student was enrolled immediately before 1 January 2017; or
(ii)
in compliance with the *VET tuition assurance requirements as they apply in relation to the provider; and
(c)
before 1 January 2017, the student received *VET FEE-HELP assistance for another unit that formed a part of the course; and
(d)
the Secretary is satisfied that, at all times from the commencement of this paragraph, the student has been a genuine student (within the meaning of the VET Student Loans Act 2016).
History
Pt 2 cl 43(4) inserted by No 100 of 2016, s 3 and Sch 1 item 20, effective 1 January 2017. For transitional provision, see note under s 137-19.
43(5)
A student is not entitled to *VETFEE-HELP assistance for a *VET unit of study if a *VET student loan has been approved for the student for the *VET course of study of which the unit forms a part.
History
Pt 2 cl 43(5) inserted by No 100 of 2016, s 3 and Sch 1 item 20, effective 1 January 2017. For transitional provision, see note under s 137-19.
43(6)
The *VET Guidelines may specify matters to which the Minister must or may have regard in deciding for the purposes of subparagraph (3)(b)(ii) whether exceptional circumstances justify continued entitlement to *VET FEE-HELP assistance for the student.
History
Pt 2 cl 43(6) inserted by No 100 of 2016, s 3 and Sch 1 item 20, effective 1 January 2017. For transitional provision, see note under s 137-19.
43(7)
A determination under subparagraph (3)(b)(ii) is not a legislative instrument.
History
Pt 2 cl 43(7) inserted by No 100 of 2016, s 3 and Sch 1 item 20, effective 1 January 2017. For transitional provision, see note under s 137-19.
SECTION 44
Citizenship or residency requirements
44(1)
The citizenship or residency requirements for *VET FEE-HELP assistance for a *VET unit of study are that the student in question is:
(a)
an Australian citizen; or
(b)
a *permanent humanitarian visa holder who will be resident in Australia for the duration of the unit; or
(c)
a student to whom subclause (3) applies.
History
Pt 2 cl 44(1) amended by No 160 of 2015, s 3 and Sch 1 item 9, by inserting para (c), applicable in relation to a unit of study that has a census date on or after 1 January 2016.
44(2)
In determining, for the purpose of paragraph (1)(b), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:
(a)
cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit; or
(b)
is required for the purpose of completing a requirement of that unit.
44(3)
This subclause applies to a student who:
(a)
is a New Zealand citizen; and
(b)
holds a special category visa under the Migration Act 1958; and
(c)
both:
(i)
first began to be usually resident in Australia at least 10 years before the day referred to in subclause (4) (the
test day
); and
(ii)
was a *dependent child when he or she first began to be usually resident in Australia; and
(d)
has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and
(e)
has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.
History
Pt 2 cl 44(3) inserted by No 160 of 2015, s 3 and Sch 1 item 10, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
44(4)
For the purposes of subclause (3), the day is the earlier of:
(a)
if the student has previously made a successful *request for Commonwealth assistance under this Part for a *VET unit of study that formed part of the same *VET course of study - the day the student first made such a request; or
(b)
otherwise - the day the student made the request for Commonwealth assistance in relation to the unit.
History
Pt 2 cl 44(4) inserted by No 160 of 2015, s 3 and Sch 1 item 10, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
SECTION 45
Course requirements
45(1)
The course requirements for *VET FEE-HELP assistance for a *VET unit of study are that the unit:
(a)
is being undertaken as part of a *VET course of study that meets any requirements set out in the *VET Guidelines; and
(b)
is not being undertaken as part of a VET course of study that:
(i)
is subject to a specification under subclause (2); or
(ii)
is with a *VET provider that is subject to a specification under subclause (2).
Note:
For the purposes of paragraph (1)(a), clause 45A affects whether a person undertakes a VET unit of study as part of a VET course of study.
History
Pt 2 cl 45(1) amended by No 160 of 2012, s 3 and Sch 3 item 25, by omitting "FEE-HELP" before "Guidelines;" in para (a), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 2 cl 45(1) amended by No 160 of 2012, s 3 and Sch 1 item 25, by substituting "specification" for "determination" in para (b)(i) and (ii), applicable in relation to a VET unit of study commenced by a student on or after 1 January 2013.
Pt 2 cl 45(1) amended by No 121 of 2009, s 3 and Sch 1 item 5, by omitting "relating to *VET credit transfer arrangements" after "the *VET FEE-HELP Guidelines" in para (a), applicable to VET units of study whose census dates are on or after 1 July 2009.
Pt 2 cl 45(1) amended by No 39 of 2009, s 3 and Sch 1 item 8, by inserting the note at the end, effective 24 June 2009.
Pt 2 cl 45(1) substituted by No 11 of 2008, s 3 and Sch 1 item 8, effective 20 March 2008. Pt 1 cl 45(1) formerly read:
45(1)
The course requirements for *VET FEE-HELP assistance for a *VET unit of study are that the unit is not being undertaken as part of a *VET course of study that:
(a)
is subject to a determination under subclause (2); or
(b)
is with a *VET provider that is subject to a determination under subclause (2)
45(1A)
For the purposes of paragraph (1)(a), the *VET Guidelines:
(a)
may set out different requirements relating to different students undertaking the *VET unit of study; and
(b)
may set out requirements relating to only some students undertaking the VET unit of study (while not setting out requirements relating to other students undertaking the unit).
History
Pt 2 cl 45(1A) amended by No 160 of 2012, s 3 and Sch 3 item 26, by omitting "FEE-HELP" before "Guidelines:", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 2 cl 45(1A) inserted by No 121 of 2009, s 3 and Sch 1 item 6, applicable to VET units of study whose census dates are on or after 1 July 2009.
45(2)
The *VET Guidelines may specify that:
(a)
a specified course or a specified kind of course provided by a specified *VET provider or a specified kind of VET provider is a course in relation to which *VET FEE-HELP assistance is unavailable; or
(b)
all courses provided by a specified VET provider or a specified kind of VET provider are courses in relation to which VET FEE-HELP assistance is unavailable.
History
Pt 2 cl 45(2) substituted by No 160 of 2012, s 3 and Sch 1 item 26, applicable in relation to a VET unit of study commenced by a student on or after 1 January 2013. Pt 2 cl 45(2) formerly read:
45(2)
The Minister may, by legislative instrument, determine that:
(a)
a specified course provided by a specified *VET provider is a course in relation to which *VET FEE-HELP assistance is unavailable; or
(b)
all courses provided by a specified VET provider are courses in relation to which VET FEE-HELP assistance is unavailable.
45(3)
In deciding whether to make a specification for the purposes of subclause (2), the Minister must have regard to the effect of the specification on students undertaking the course or courses.
History
Pt 2 cl 45(3) amended by No 160 of 2012, s 3 and Sch 1 items 27 and 28, by substituting "specification for the purposes of" for "determination under" and "the specification" for "the determination", applicable in relation to a VET unit of study commenced by a student on or after 1 January 2013.
45(4)
(Repealed by No 160 of 2012)
History
Pt 2 cl 45(4) repealed by No 160 of 2012, s 3 and Sch 1 item 29, applicable in relation to a VET unit of study commenced by a student on or after 1 January 2013. Cl 45(4) formerly read:
45(4)
A determination of the Minister under subclause (2) must not be made later than 6 months before the day that students are able next to commence the specified course, or courses, with the provider.
SECTION 45A
45A
VET unit of study not undertaken as part of VET course of study
For the purposes of paragraphs 43(e) and 45(1)(a), a student is taken not to undertake a *VET unit of study as part of a *VET course of study if undertaking the unit involves the student doing more than he or she needs to do to be awarded a *VET qualification that the course leads to:
(a)
a *VET diploma;
(b)
a *VET advanced diploma;
(c)
a *VET graduate diploma;
(d)
a *VET graduate certificate.
History
Pt 2 cl 45A amended by No 160 of 2012, s 3 and Sch 1 item 30, by substituting "a *VET qualification that the course leads to" for "whichever of the following the course leads to", applicable in relation to a VET unit of study commenced by a student on or after 1 January 2013.
Pt 2 cl 45A inserted by No 39 of 2009, s 3 and Sch 1 item 9, effective 24 June 2009.
SECTION 45B
45B
Entry procedure requirements
The entry procedure requirements for *VET FEE-HELP assistance for a *VET unit of study are that the student, in accordance with the *VET provider's *student entry procedure, has been assessed as academically suited to undertake the *VET course of study of which the unit forms a part.
History
Pt 2 cl 45B inserted by No 168 of 2015, s 3 and Sch 1 item 12, applicable in relation to VET courses of study enrolled in on or after 1 January 2016.
SECTION 45C
Request for Commonwealth assistance requirements
45C(1)
The request for Commonwealth assistance requirements for *VET FEE-HELP assistance for a *VET unit of study are that:
(a)
the student completes, signs and gives an *appropriate officer of the *VET provider a *request for Commonwealth assistance that:
(i)
if the *VET course of study of which the unit forms a part is undertaken with the provider - relates to the course, and is so given at least 2 business days after the student enrols in the course; or
(ii)
otherwise - relates to the unit, and is so given at least 2 business days after the student enrols in the unit; and
(b)
the request is so given on or before the *census date for the unit; and
(ba)
if the student enrols in the course after the day the Higher Education Support Amendment (VET FEE-HELP Reform) Act 2015 receives the Royal Assent - the student being entitled to the VET FEE-HELP assistance for the unit:
(i)
would not cause the VET provider's *VET FEE-HELP account to be in deficit at the end of that census date (see subclause 45D(7)); and
(ii)
would not cause or contribute to that account being in deficit at the end of 2016 or a later calendar year; and
(c)
the request is not withdrawn before the end of that census date.
If VET provider incorrectly treats student as being entitled
45C(2)
However, for the purposes of this Act (other than clause 39DH), if:
(a)
either or both of the following things happen:
(i)
the student fails to comply with paragraph (1)(a) of this clause by not giving the request at least 2 business days after the enrolment referred to in that paragraph;
(ii)
paragraph (1)(ba) of this clause is not complied with; and
(b)
the *VET provider treats the student as being entitled to *VET FEE-HELP assistance for the unit;
those paragraphs of this clause are taken to have been complied with.
Note 1:
The VET provider should not treat the student as being entitled to VET FEE-HELP assistance:
(a) if the student requests the assistance during the 2 business day cooling-off period after the enrolment; or
(b) if being entitled would cause or contribute to the provider's VET FEE-HELP account being in deficit.
Note 2:
However, if the provider does treat the student as being entitled, the provider will contravene subclause 39DH(1) (a civil penalty provision), and the student may still be able to receive the assistance.
History
Pt 2 cl 45C inserted by No 168 of 2015, s 3 and Sch 1 item 12, applicable in relation to requests for Commonwealth assistance given on or after 1 January 2016.
SECTION 45D
Notional VET FEE-HELP accounts
45D(1)
There is a notional
VET FEE-HELP account
for each *VET provider.
Note 1:
The VET provider will need to monitor the balance of its account, as it will have to repay an amount to the Commonwealth if the account is in deficit at the end of 2016 or a later year.
Note 2:
This account applies in relation to all students entitled to VET FEE-HELP assistance for VET units of study with census dates on or after 1 January 2016 (whether or not the student received VET FEE-HELP assistance for earlier units before that day). See subclause (7).
Credits to the VET provider's VET FEE-HELP account
45D(2)
A credit arises in the *VET provider's *VET FEE-HELP account as follows:
(a)
if the VET provider is already a VET provider on 1 January 2015, a credit arises on the first day of each later calendar year that is equal to the amount worked out under subclause (3);
(b)
if the VET provider becomes a VET provider during 2015, a credit arises on the first day of each later calendar year that is equal to the amount worked out under subclause (4);
(c)
if the VET provider becomes a VET provider on a day after 2015, a credit arises on that day that is equal to the amount worked out under subclause (5);
(d)
if the VET provider pays on a particular day any part of any amount that becomes due under subclause 45E(2), a credit arises on that day that is equal to the amount of that payment;
(e)
if another body ceases to be a VET provider, a credit may arise:
(i)
in accordance with a determination under subclause (6) at the time of the cessation; and
(ii)
that is equal to the amount worked out under that determination;
(f)
if the *Secretary, on application by the VET provider, is satisfied on a particular day that:
(i)
the VET provider is offering a VET course of study that confers skills in an identified area of national importance; and
(ii)
the course is relevant for employment in a licensed occupation; and
(iii)
one or more students are unable to readily access training places in courses of this kind with any other VET provider; and
(iv)
insufficient credits have arisen in the VET provider's VET FEE-HELP account for an appropriate number of students to undertake the course with the VET provider; and
(v)
granting an extra credit of a particular amount is appropriate (which need not be the amount specified in the application);
the Secretary may grant a credit, which arises on that day, that is equal to the amount considered appropriate under subparagraph (v).
45D(3)
For the purposes of paragraph (2)(a), the amount to be credited is the amount equal to:
|
3
2 |
× VET provider's adjusted 2015 total loan amount |
where:
VET provider's adjusted 2015 total loan amount
means the sum of the amounts of *VET FEE-HELP assistance paid for students undertaking, with the *VET provider, *VET units of study that had *census dates during the period starting on 1 January 2015 and ending on 31 August 2015.
45D(4)
For the purposes of paragraph (2)(b), the amount to be credited is the amount equal to the sum of:
(a)
the *VET provider's fee revenue for the period:
(i)
starting on 1 January 2015; and
(ii)
ending on the day before the VET provider was approved as a VET provider;
for *domestic students undertaking *qualifying VET courses in that period; and
(b)
the sum of the amounts of *VET FEE-HELP assistance paid for students undertaking, with the VET provider, *VET units of study that had *census dates during 2015.
45D(5)
For the purposes of paragraph (2)(c), the amount to be credited is the amount equal to the *VET provider's fee revenue for the 2015 calendar year for *domestic students undertaking in that year the *qualifying VET courses that enabled paragraph 6(1)(ca) or (1A)(da) to be satisfied for the purposes of the VET provider's approval as a VET provider.
45D(6)
The Minister may, by legislative instrument, determine:
(a)
whether credits arise in the *VET FEE-HELP accounts of specified *VET providers when another body ceases to be a VET provider; and
(b)
the amounts of such credits.
Debits to the VET FEE-HELP account
45D(7)
A debit arises in the *VET provider's *VET FEE-HELP account if a student is entitled to *VET FEE-HELP assistance for a *VET unit of study:
(a)
that is to be undertaken with the VET provider; and
(b)
that has a *census date on or after 1 January 2016.
The debit arises at the end of that census date, and is equal to the amount of that assistance.
History
Pt 2 cl 45D inserted by No 168 of 2015, s 3 and Sch 1 item 12, effective 31 December 2015.
SECTION 45E
Effect of VET FEE-HELP account being in deficit at the end of a calendar year
45E(1)
If:
(a)
a *VET provider's *VET FEE-HELP account is in deficit at the end of a calendar year; and
(b)
the *Secretary gives the VET provider a written notice about the deficit;
the VET provider must pay to the Commonwealth an amount equal to the amount of the deficit (the
excess loan amount
).
[
CCH Note:
No 168 of 2015, s 3 and Sch 1 item 24(3A) provides that subclause 45E(1) is applicable in relation to the 2016 calendar year and later calendar years.]
45E(2)
The excess loan amount is due on the seventh day (the
due day
) after the day the notice is given.
Late payments of the excess loan amount attract the general interest charge
45E(3)
If some or all of the excess loan amount remains unpaid after the due day, the *VET provider must pay to the Commonwealth an amount (the
general interest charge
) relating to the unpaid amount for each day in the period that:
(a)
starts at the beginning of the day after the due day; and
(b)
ends at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i)
the excess loan amount;
(ii)
general interest charge on any of the excess loan amount.
45E(4)
The general interest charge for a particular day is worked out by multiplying the *general interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:
(a)
the general interest charge from previous days;
(b)
the excess loan amount.
45E(5)
The general interest charge for a day is due and payable to the Commonwealth at the end of that day.
45E(6)
The *Secretary may give written notice to the *VET provider of the amount of the general interest charge for a particular day or days. A notice given under this subclause is prima facie evidence of the matters stated in the notice.
45E(7)
The *Secretary may remit all or a part of the general interest charge payable by the *VET provider if the Secretary is satisfied:
(a)
that:
(i)
the circumstances that contributed to the delay in payment were not due to, or caused directly or indirectly by, an act or omission of the VET provider; and
(ii)
the VET provider has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; or
(b)
that it is otherwise appropriate to do so.
45E(8)
An amount payable under this clause may be recovered by the Commonwealth from the *VET provider as a debt due to the Commonwealth.
History
Pt 2 cl 45E inserted by No 168 of 2015, s 3 and Sch 1 item 12, effective 31 December 2015.
Subdivision 7-B - Re-crediting HELP balances in relation to VET FEE-HELP assistance
History
Subdiv 7-B heading substituted by No 76 of 2018, s 3 and Sch 3 item 73, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading. The heading formerly read:
FEE-HELP balances
SECTION 46
Main case of re-crediting a person's HELP balance in relation to VET FEE-HELP assistance
46(1)
If clause 46A, 46AA or 51 applies to re-credit a person's *HELP balance with an amount equal to the amounts of *VET FEE-HELP assistance that the person has received for a *VET unit of study, then this clause does not apply in relation to that unit.
Note:
For
HELP balance
, see section 128-15, and for
HELP loan limit
, see section 128-20.
History
Pt 2 cl 46(1) amended by No 76 of 2018, s 3 and Sch 3 items 75 and 76, by substituting "*HELP balance" for "*FEE-HELP balance" and substituting the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading. The note formerly read:
Note:
For
FEE-HELP balance
, see section 104-15, and for
FEE-HELP limit
, see section 104-20.
Pt 2 cl 46(1) amended by No 160 of 2018, s 3 and Sch 1 item 2, by inserting "46AA" after "46A,", effective 1 January 2019.
Pt 2 cl 46(1) amended by No 168 of 2015, s 3 and Sch 1 item 13, by substituting "clause 46A or 51" for "clause 51", effective 31 December 2015.
46(2)
A *VET provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *VET FEE-HELP assistance that the person received for a *VET unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
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
(c)
the provider is satisfied that special circumstances apply to the person (see clause 48); and
(d)
the person applies in writing to the provider for re-crediting of the HELP balance; and
(e)
either:
(i)
the application is made before the end of the application period under clause 49; or
(ii)
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.
Note:
A VET FEE-HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see section 137-18.
History
Pt 2 cl 46(2) amended by No 76 of 2018, s 3 and Sch 3 items 77-79, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in para (d) and the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
46(3)
If the provider is unable to act for one or more of the purposes of subclause (2), or clause 48, 49 or 50, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.
SECTION 46A
Re-crediting a person's HELP balance in relation to VET FEE-HELP assistance - unacceptable conduct by provider or provider's agent
Decision to re-credit due to unacceptable conduct
46A(1)
The *Secretary must re-credit a person's *HELP balance with an amount equal to the amounts of *VET FEE-HELP assistance that the person received for a *VET unit of study if the Secretary is satisfied that:
(a)
the person has been enrolled in the unit with a *VET provider; and
(b)
the person has not completed the requirements for the unit during the period the person undertook, or was to undertake, the unit; and
(c)
circumstances exist, of a kind specified in the *VET Guidelines for the purposes of this paragraph, involving unacceptable conduct by the VET provider (or an agent of the VET provider) relating to the person's *request for Commonwealth assistance relating to:
(i)
the unit; or
(ii)
the *VET course of study of which the unit forms a part; and
(d)
the person has applied in writing to the Secretary for re-crediting of the HELP balance under this subclause; and
(e)
the application is in the form approved by the Secretary, and is accompanied by such information as the Secretary requests; and
(f)
either:
(i)
the application was made during the first 3 years after the period during which the person undertook, or was to undertake, the unit; or
(ii)
it would not be, or was not, possible for the application to be made during those 3 years.
Note:
A VET FEE-HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see section 137-18.
History
Pt 2 cl 46A(1) amended by No 76 of 2018, s 3 and Sch 3 items 81-83, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in para (d) and the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
46A(2)
If:
(a)
the person received the *VET FEE-HELP assistance as a result of giving an *appropriate officer of the *VET provider a form; and
(b)
the form would have been a *request for Commonwealth assistance relating to the unit if it had been signed by a *responsible parent of the person;
paragraph (1)(c) applies as if the form were the person's request for Commonwealth assistance relating to the unit.
Note:
To be a request for Commonwealth assistance, a responsible parent must sign the form if the student is under 18 years old and subclause 88(3A) applies (see paragraph 88(3)(aa)).
Inviting submissions before making a decision
46A(3)
Before making a decision under subclause (1), the *Secretary must give the applicant and the *VET provider a notice in writing:
(a)
stating that the Secretary is considering making the decision; and
(b)
describing the decision and stating the reasons why the Secretary is considering making it; and
(c)
inviting the applicant and the VET provider to each make written submissions to the Secretary within 28 days on either or both of the following matters:
(i)
why that decision should not be made;
(ii)
if that decision would re-credit the applicant's *HELP balance with a particular amount - why that amount should be changed; and
(d)
informing the applicant and the VET provider that, if no submissions are received within the 28 day period, the Secretary may proceed to make the decision.
History
Pt 2 cl 46A(3) amended by No 76 of 2018, s 3 and Sch 3 item 84, by substituting "*HELP balance" for "*FEE-HELP balance" in para (c)(ii), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
46A(4)
In deciding whether to make the decision under subclause (1), the *Secretary must consider any submissions received from the applicant, and from the *VET provider, within the 28 day period.
Notice of a decision
46A(5)
The *Secretary must give written notice of a decision under subclause (1) to the applicant and the *VET provider. The notice must be given within 28 days after the day the decision was made.
History
Pt 2 cl 46A inserted by No 168 of 2015, s 3 and Sch 1 item 14, applicable in relation to unacceptable conduct engaged in on or after 1 January 2016.
SECTION 46AA
Re-crediting a person's HELP balance in relation to VET FEE-HELP assistance - inappropriate conduct by provider or provider's agent
Re-crediting
46AA(1)
The *Secretary may, on application under subclause (3) or on the Secretary's own initiative, re-credit a person's *HELP balance with an amount equal to the amounts of *VET FEE-HELP assistance that the person received for a *VET unit of study with a *VET provider, if the Secretary is satisfied that:
(a)
either:
(i)
the person has not completed the requirements for the unit during the period the person undertook, or was to undertake, the unit; or
(ii)
under *VET Guidelines prescribed for the purposes of this subparagraph, the person is taken not to have completed those requirements during that period; and
(b)
it is reasonably likely that, having regard to any matters prescribed by the *VET Guidelines for the purposes of this paragraph, the VET provider (or an agent of the VET provider) engaged in inappropriate conduct towards the person in relation to the unit, or the *VET course of study of which the unit forms a part.
Note 1:
A VET FEE-HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see section 137-18.
Note 2:
The VET provider may be required to repay an amount to the Commonwealth under subclause 56(4), depending on the nature of the inappropriate conduct.
History
Pt 2 cl 46AA(1) in note 1 amended by No 160 of 2018, s 3 and Sch 2 items 2 and 3, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in note 1, effective 1 January 2020.
46AA(2)
The *VET Guidelines may prescribe matters for the purposes of paragraph (1)(b) that are also prescribed for the purposes of paragraph 46A(1)(c) (circumstances involving unacceptable conduct).
46AA(3)
A person may apply to the *Secretary for the person's *HELP balance to be re-credited under subclause (1). The application must:
(a)
be in writing; and
(b)
be in the form (if any) approved by the Secretary and accompanied by the information (if any) required by the Secretary; and
(c)
meet any requirements prescribed by the *VET Guidelines for the purposes of this paragraph.
History
Pt 2 cl 46AA(3) amended by No 160 of 2018, s 3 and Sch 2 item 4, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020.
Submissions by applicants before refusal to re-credit
46AA(4)
Before making a decision to refuse a person's application under subclause (3) for re-crediting of the person's *HELP balance, the Secretary must give the person a notice in writing:
(a)
stating that the Secretary is considering making the decision; and
(b)
stating the reasons why the Secretary is considering making the decision; and
(c)
inviting the person to make written submissions to the Secretary, within 28 days, about why that decision should not be made; and
(d)
informing the person that, if no submissions are received within the 28 day period, the Secretary may proceed to make the decision.
History
Pt 2 cl 46AA(4) amended by No 160 of 2018, s 3 and Sch 2 item 4, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020.
46AA(5)
In deciding whether to re-credit the *HELP balance, the *Secretary must take into account any submissions received from the person within the 28 day period.
History
Pt 2 cl 46AA(5) amended by No 160 of 2018, s 3 and Sch 2 item 4, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020.
Submissions by providers before decision to re-credit in circumstances requiring repayment by provider
46AA(6)
Before making a decision to re-credit a person's *HELP balance to which subclause 56(4) applies, the Secretary must give the *VET provider a notice in writing:
(a)
stating that the Secretary is considering making the decision; and
(b)
stating that, if the Secretary makes the decision, the VET provider will be required to pay an amount to the Commonwealth under subclause 56(4) in relation to the re-crediting; and
(c)
stating the reasons why the Secretary is considering making the decision; and
(d)
inviting the VET provider to make written submissions to the Secretary, within 28 days, about why that decision should not be made; and
(e)
informing the VET provider that, if no submissions are received within the 28 day period, the Secretary may proceed to make the decision.
History
Pt 2 cl 46AA(6) amended by No 160 of 2018, s 3 and Sch 2 item 4, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020.
46AA(7)
In deciding whether to re-credit the *HELP balance, the *Secretary must take into account any submissions received from the *VET provider within the 28 day period.
History
Pt 2 cl 46AA(7) amended by No 160 of 2018, s 3 and Sch 2 item 4, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020.
Written notice of decision
46AA(8)
If the *Secretary re-credits a person's *HELP balance under subclause (1), the Secretary must, as soon as practicable, give written notice of the Secretary's decision and the reasons for it to:
(a)
the person; and
(b)
if subclause 56(4) applies to the decision - the *VET provider.
History
Pt 2 cl 46AA(8) amended by No 160 of 2018, s 3 and Sch 2 item 4, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020.
Final date for re-crediting
46AA(9)
The *Secretary must not re-credit a person's *HELP balance under subclause (1) on the Secretary's own initiative, after:
(a)
31 December 2020; or
(b)
if a later day is prescribed by the *VET Guidelines for the purposes of this paragraph - that later day.
History
Pt 2 cl 46AA(9) amended by No 160 of 2018, s 3 and Sch 2 item 4, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020.
46AA(10)
The *Secretary must not re-credit a person's *HELP balance under subclause (1) on application made by the person, if the application is made after:
(a)
31 December 2020; or
(b)
if a later day is prescribed by the *VET Guidelines for the purposes of this paragraph - that later day.
History
Pt 2 cl 46AA(10) amended by No 160 of 2018, s 3 and Sch 2 item 4, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020.
History
Pt 2 cl 46AA inserted by No 160 of 2018, s 3 and Sch 1 item 3 applicable in relation to conduct engaged in by a VET provider (or an agent of a VET provider) before or after 1 January 2019.
SECTION 46B
Re-crediting a person's HELP balance in relation to VET FEE-HELP assistance - VET FEE-HELP account in deficit at the end of a calendar year
Main case
46B(1)
A *VET provider must, on the *Secretary's behalf, re-credit a student's *HELP balance with an amount if:
(a)
the student receives *VET FEE-HELP assistance in a calendar year for a *VET unit of study undertaken with the VET provider; and
(b)
under subclause 45E(1), the Secretary notifies the VET provider that the VET provider's *VET FEE-HELP account was in deficit at the end of the calendar year; and
(c)
the VET provider reasonably believes that some or all of that assistance caused or contributed to the deficit.
History
Pt 2 cl 46B(1) amended by No 76 of 2018, s 3 and Sch 3 item 86, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
46B(2)
The amount to be re-credited is equal to so much of that assistance as the *VET provider reasonably believes caused or contributed to the deficit.
Note:
A corresponding amount of the student's VET FEE-HELP debt relating to the unit will be remitted (see section 137-18).
46B(3)
The *Secretary may re-credit the student's *HELP balance under this subclause if:
(a)
the *VET provider is unable to do so under subclauses (1) and (2); and
(b)
the Secretary knows how much of that assistance that the VET provider reasonably believes caused or contributed to the deficit.
History
Pt 2 cl 46B(3) amended by No 76 of 2018, s 3 and Sch 3 item 86, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
If not all of the deficit can be re-credited under subclauses (1) and (3)
46B(4)
If the deficit exceeds the total amount able to be re-credited under subclauses (1) and (3) for all of the *VET provider's students who received *VET FEE-HELP assistance in the calendar year for *VET units of study undertaken with the VET provider, the *Secretary may re-credit the *HELP balance of each of those students with the amount equal to:
That excess × Student's percentage of the total assistance
where:
student's percentage of the total assistance
means the percentage equal to the percentage that the student's *VET FEE-HELP assistance referred to in paragraph (1)(a) is of the total VET FEE-HELP assistance received by students of the *VET provider in the calendar year for *VET units of study undertaken with the VET provider.
History
Pt 2 cl 46B(4) amended by No 76 of 2018, s 3 and Sch 3 item 86, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
History
Pt 2 cl 46B inserted by No 168 of 2015, s 3 and Sch 1 item 14A, effective 31 December 2015.
SECTION 47
Re-crediting a person's HELP balance - no tax file number
47(1)
A *VET provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *VET FEE-HELP assistance that the person received for a *VET unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
subclause 89(1) applies to the person in relation to the unit.
Note:
A VET FEE-HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see section 137-18.
History
Pt 2 cl 47(1) amended by No 76 of 2018, s 3 and Sch 3 items 88 and 89, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
47(2)
The *Secretary may re-credit the person's *HELP balance under subclause (1) if the provider is unable to do so.
History
Pt 2 cl 47(2) amended by No 76 of 2018, s 3 and Sch 3 item 90, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 48
48
Special circumstances
For the purposes of paragraph 46(2)(c), special circumstances apply to the person if and only if the *VET provider receiving the application is satisfied that circumstances apply to the person that:
(a)
are beyond the person's control; and
(b)
do not make their full impact on the person until on or after the *census date for the *VET unit of study in question; and
(c)
make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.
SECTION 49
Applicationperiod
49(1)
If:
(a)
the person applying under paragraph 46(2)(d) for the re-crediting of the person's *HELP balance in relation to a *VET unit of study has withdrawn his or her enrolment in the unit; and
(b)
the *VET provider gives notice to the person that the withdrawal has taken effect;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.
History
Pt 2 cl 49(1) amended by No 76 of 2018, s 3 and Sch 3 item 91, by substituting "*HELP balance" for "*FEE-HELP balance" in para (a), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
49(2)
If subclause (1) does not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.
SECTION 50
Dealing with applications
50(1)
If:
(a)
the application is made under paragraph 46(2)(d) before the end of the relevant application period; or
(b)
the *VET 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;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.
50(2)
The notice must include a statement of the reasons for the decision.
Note:
Refusals of applications are reviewable under Division 16.
SECTION 51
Re-crediting a person's HELP balance in relation to VET FEE-HELP assistance if provider ceases to provide course of which unit forms part
51(1)
A *VET provider must, on the *Secretary's behalf, re-credit a person's *HELP balance with an amount equal to the amounts of *VET FEE-HELP assistance that the person received for a *VET unit of study if:
(a)
the person has been enrolled in the unit with the provider; and
(b)
the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and
(c)
the *VET tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and
(d)
the person chose the option designated under the VET tuition assurance requirements as VET tuition fee repayment in relation to the unit.
Note:
A VET FEE-HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re-credited: see subsection 137-18(4).
History
Pt 2 cl 51(1) amended by No 76 of 2018, s 3 and Sch 3 items 93 and 94, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
51(2)
The *Secretary may re-credit the person's *HELP balance under subclause (1) if the provider is unable to do so.
History
Pt 2 cl 51(2) amended by No 76 of 2018, s 3 and Sch 3 item 95, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
SECTION 51A
51A
Implications for the student's liability to the VET provider for the VET tuition fee
If a student's *HELP balance is re-credited in accordance with this Subdivision with an amount for a *VET unit of study, the student is discharged from all liability to pay or account for so much of the student's *VET tuition fee for the unit as is equal to that amount.
History
Pt 2 cl 51A amended by No 76 of 2018, s 3 and Sch 3 item 96, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Pt 2 cl 51A inserted by No 168 of 2015, s 3 and Sch 1 item 14B, applicable in relation to the re-crediting of FEE-HELP balances on or after 1 July 2016.
Division 8 - How are amounts of VET FEE-HELP assistance worked out?
SECTION 52
52
The amount of VET FEE-HELP assistance for a VET unit of study
The amount of *VET FEE-HELP assistance to which a student is entitled for a *VET unit of study is the difference between:
(a)
the student's *VET tuition fee for the unit; and
(b)
the sumof any *up-front VET payments made in relation to the unit.
Note:
A lesser amount may be payable because of clause 54.
SECTION 53
Up-front payments
53(1)
An
up-front VET payment
, in relation to a *VET unit of study for which a student is liable to pay a *VET tuition fee, is a payment of all or part of the student's VET tuition fee for the unit, other than a payment of *VET FEE-HELP assistance under this Part.
53(2)
The payment must be made on or before the *census date for the unit.
SECTION 54
Amounts of VET FEE-HELP assistance, HECS-HELP assistance and FEE-HELP assistance must not exceed the HELP balance
Amount of VET FEE-HELP assistance for one unit
54(1)
The amount of *VET FEE-HELP assistance to which a student is entitled for a *VET unit of study is an amount equal to the student's *HELP balance on the *census date for the unit if:
(a)
there is no other:
(i)
VET unit of study, with the same census date, for which the student is entitled to VET FEE-HELP assistance; or
(ia)
unit of study, with the same census date, for which the student is entitled to *HECS-HELP assistance; or
(ii)
unit of study, with the same census date, for which the student is entitled to *FEE-HELP assistance; and
(b)
the amount of VET FEE-HELP assistance to which the student would be entitled under clause 52 for the unit would exceed that HELP balance.
Note 1:
For transitional provisions relating to subparagraph (a)(ia), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.
Note 2:
The amount of a *VET student loan is limited by reference to the student's HELP balance - see sections 8 and 20 of the VET Student Loans Act 2016. The student's HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student - see section 128-15.
History
Pt 2 cl 54(1) amended by No 76 of 2018, s 3 and Sch 3 items 98-101, by substituting "*HELP balance" for "*FEE-HELP balance", inserting para (a)(ia), substituting "that HELP balance" for "that FEE-HELP balance" in para (b) and inserting Note 1 and Note 2 at the end, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Amount of VET FEE-HELP assistance for more than one unit
54(2)
If the sum of:
(a)
the amount of *VET FEE-HELP assistance to which a student would be entitled under clause 52 for a *VET unit of study; and
(b)
any other amounts of:
(i)
VET FEE-HELP assistance to which the student would be entitled under that clause for other units that have the same *census date as that unit; and
(ia)
*HECS-HELP assistance to which the student would be entitled under section 93-1 for other units that have the same census date as that unit; and
(ii)
*FEE-HELP assistance to which the student would be entitled under section 107-1 for other units that have the same census date as that unit;
would exceed the student's *HELP balance on the census date for the unit, then, despite subclause (1) of this clause, the total amount of VET FEE-HELP assistance, HECS-HELP assistance and FEE-HELP assistance to which the student is entitled for all of those units is an amount equal to that HELP balance.
Example:
Kath has a HELP balance of $2,000, and is enrolled in 4 units with the same census date. Kath's VET tuition fee for each unit is $600. The total amount of VET FEE-HELP assistance to which Kath is entitled for the units is $2,000, even though the total amount of her VET tuition fees for the units is $2,400.
Note 1:
For transitional provisions relating to subparagraph (b)(ia), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.
Note 2:
The amount of a *VET student loan is limited by reference to the student's HELP balance - see sections 8 and 20 of the VET Student Loans Act 2016. The student's HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student - see section 128-15.
History
Pt 2 cl 54(2) amended by No 76 of 2018, s 3 and Sch 3 items 102-108, by inserting para (b)(ia), substituting "section 107-1" for "clause 52" in para (b)(ii) and "*HELP balance" for "*FEE-HELP balance", inserting ", HECS-HELP assistance", substituting "that HELP balance" for "that FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the example, and inserting Note 1 and 2 at the end, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
54(3)
If the student has enrolled in the units with more than one *VET provider or higher education provider, the student must notify each provider of the proportion of the total amount of *VET FEE-HELP assistance,*HECS-HELP assistance or *FEE-HELP assistance that is to be payable in relation to the units in which the student has enrolled with that provider.
History
Pt 2 cl 54(3) amended by No 76 of 2018, s 3 and Sch 3 item 109, by inserting ",*HECS-HELP assistance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Division 9 - How are amounts of VET FEE-HELP assistance paid?
Note:
Division 11 also deals with payments by the Commonwealth under this Schedule.
SECTION 55
Payments
55(1)
If a student is entitled to an amount of *VET FEE-HELP assistance for a *VET unit of study with a *VET provider, the Commonwealth must:
(a)
as a benefit to the student, lend to the student the amount of VET FEE-HELP assistance; and
(b)
pay the amount lent to the provider in discharge of the student's liability to pay his or her *VET tuition fee for the unit.
Note:
Amounts of assistance under this Part may form part of a person's HELP debts that the Commonwealth recovers under Chapter 4.
History
Pt 2 cl 55 amended by No 17 of 2021, s 3 and Sch 1 item 1, by substituting "(1) If" for "If", effective 2 March 2021.
55(2)
However, the Commonwealth must not pay an amount to a provider under paragraph (1)(b) in respect of a *VET unit of study unless the provider has given the Minister notice of the student's liability to pay his or her *VET tuition fee for the unit, including the amount of the liability, before the reporting deadline for the unit.
History
Pt 2 cl 55(2) inserted by No 17 of 2021, s 3 and Sch 1 item 2, effective 2 March 2021.
55(3)
The amount paid to a provider for a unit under paragraph (1)(b) must not exceed the amount notified for the purposes of subclause (2) before the reporting deadline for the unit.
History
Pt 2 cl 55(3) inserted by No 17 of 2021, s 3 and Sch 1 item 2, effective 2 March 2021.
55(4)
If the Commonwealth does not pay an amount to a provider because of the operation of subclause (2), the student is discharged from all liability to pay or account for so much of the student's *VET tuition fee for the *VET unit of study as is equal to that amount.
History
Pt 2 cl 55(4) inserted by No 17 of 2021,s 3 and Sch 1 item 2, effective 2 March 2021.
55(5)
For the purposes of this clause, the
reporting deadline
for a unit is:
(a)
for a unit with a *census date before 1 January 2018 - before 1 July 2021; or
(b)
for any other unit - before 1 January 2022.
History
Pt 2 cl 55(5) inserted by No 17 of 2021, s 3 and Sch 1 item 2, effective 2 March 2021.
SECTION 56
Effect of HELP balance being re-credited
Re-crediting other than under subclause 46AA(1)
56(1)
If, under subclause 46(2), 46A(1) or 47(1), or clause 51, a person's *HELP balance is re-credited with an amount relating to *VET FEE-HELP assistance for a *VET unit of study, the provider must pay to the Commonwealth an amount equal to the amount of VET FEE-HELP assistance to which the person was entitled for the unit.
Note:
The provider must repay the amount under subclause (1) even if the person's HELP balance is not increased by an amount equal to the amount re-credited.
History
Pt 2 cl 56(1) amended by No 76 of 2018, s 3 and Sch 3 items 111 and 112, by substituting "*HELP balance" for "*FEE-HELP balance" and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Pt 2 cl 56(1) amended by No 168 of 2015, s 3 and Sch 1 item 15, by substituting "subclause 46(2), 46A(1) or 47(1)" for "subclause 46(2) or 47(1)", effective 31 December 2015.
56(2)
Subclause (1) does not apply to the provider if:
(a)
the person's *HELP balance was re-credited under subclause 46(2) (main case of re-crediting a person's HELP balance); and
(b)
the person enrolled in the unit in circumstances that make it a replacement unit within the meaning of the *VET tuition assurance requirements.
History
Pt 2 cl 56(2) amended by No 76 of 2018, s 3 and Sch 3 items 113 and 114, by substituting "*HELP balance" for "*FEE-HELP balance" and "re-crediting a person's HELP balance" for "re-crediting a person's FEE-HELP balance" in para (a), effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
56(3)
The *VET Guidelines may, in setting out the *VET tuition assurance requirements, specify, in relation to the re-crediting of a person's *HELP balance in circumstances to which subclause (2) applies:
(a)
the amount (if any) that is to be paid to the Commonwealth; and
(b)
the person (if any) who is to pay the amounts.
History
Pt 2 cl 56(3) amended by No 76 of 2018, s 3 and Sch 3 item 115, by substituting "*HELP balance" for "*FEE-HELP balance", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Pt 2 cl 56(3) amended by No 160 of 2012, s 3 and Sch 3 item 27, by omitting "Provider" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after a single 1 January 2013.
Re-crediting under subclause 46AA(1)
56(4)
If:
(a)
under subclause 46AA(1) (inappropriate conduct by provider or provider's agent), a person's *HELP balance is re-credited with an amount relating to *VET FEE-HELP assistance for a *VET unit of study with a *VET provider; and
(b)
the inappropriate conduct which the *Secretary is satisfied was reasonably likely to have been engaged in was, or included, the VET provider treating the person as being entitled to the assistance under clause 43, when the person was not entitled to that assistance;
the VET provider must pay to the Commonwealth an amount equal to the amount of VET FEE-HELP assistance to which the person was treated as being entitled for the unit.
Note:
The VET provider must repay the amount under subclause (4) even if the person's HELP balance is not increased by an amount equal to the amount re-credited.
History
Pt 2 cl 56(4) amended by No 160 of 2018, s 3 and Sch 2 item 5 and 6, by substituting "*HELP balance" for "*FEE-HELP balance" in para (a) and "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020.
Pt 2cl 56(4) substituted by No 160 of 2018, s 3 and Sch 1 item 5, effective 1 January 2019.
PART 3 - Administration
Division 10 - Introduction
SECTION 57
57
What this Part is about
This Part deals with the following administrative matters:
• payments made by the Commonwealth under this Schedule (see Division 11);
• administrative requirements that are imposed on VET providers (see Division 12);
• electronic communication between VET providers and students (see Division 13);
• management of information (see Division 14);
• tax file numbers of students (see Division 15);
• reconsideration and administrative review of certain decisions (see Division 16).
History
Pt 3 cl 57 amended by No 6 of 2012, s 3 and Sch 1 item 12, by substituting "management of information (see Division 14)" for "protection of VET personal information gained in the administration of Part 2 of this Schedule (see Division 14) and Chapter 4", applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
SECTION 58
58
The VET Guidelines
Administrative matters are also dealt with in the *VET Guidelines. The provisions of this Part may indicate when a particular matter is or may be dealt with in these Guidelines.
Note:
The VET Guidelines are made by the Minister under clause 99.
History
Pt 3 cl 58 amended by No 160 of 2012, s 3 and Sch 3 items 29 and 30, by omitting "Administration" before "Guidelines" from the section and the note, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Division 11 - Payments by the Commonwealth
SECTION 59
59
What this Division is about
This Division contains general provisions relating to how the Commonwealth makes payments under this Schedule to VET providers.
SECTION 60
Time and manner of payments
60(1)
Amounts payable by the Commonwealth to a *VET provider under this Schedule are to be paid in accordance with an applicable determination under subclause (2) or (3).
60(2)
The Minister may, by legislative instrument, determine the way (including payment in instalments or in arrears), and the times when, amounts payable by the Commonwealth under this Schedule are to be paid to specified kinds of *VET providers.
60(3)
The Minister may, in writing, determine the way (including payment in instalments or in arrears), and the times when, amounts payable by the Commonwealth under this Schedule are to be paid to a particular *VET provider.
60(4)
A determination under subclause (3) is not a legislative instrument.
History
Pt 3 cl 60 substituted by No 168 of 2015, s 3 and Sch 1 item 15A, applicable in relation to amounts payable on or after 1 January 2016. Cl 60 formerly read:
SECTION 60 Time and manner of payments
60(1)
Amounts payable by the Commonwealth to a *VET provider under this Schedule are to be paid in such a way, including payment in instalments, as the Minister determines.
60(2)
Payments of amounts payable by the Commonwealth to a *VET provider under this Schedule are to be made at such times as the *Secretary determines.
SECTION 61
Advances
61(1)
The *Secretary may determine that an advance is to be made to a *VET provider on account of an amount that is expected to become payable under a provision of this Schedule to the provider.
61(1A)
The *Secretary may vary or revoke a determination that an advance is to be made to a *VET provider if:
(a)
the Secretary is satisfied that the provider has not complied with this Schedule and the regulations (if any) relating to this Schedule, and the *VET Guidelines that apply to the provider; or
(b)
the Secretary is aware of information that suggests that the provider may not comply with this Schedule and the regulations (if any) relating to this Schedule, and the VET Guidelines that apply to the provider; or
(c)
the Secretary is aware of information that suggests that the provider may not remain financially viable.
History
Pt 3 cl 61(1A) amended by No 160 of 2012, s 3 and Sch 3 items 31 and 32, by substituting "*VET Guidelines" for "Guidelines made under clause 99" in para (a) and "VET Guidelines" for "Guidelines made under clause 99" in para (b), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 3 cl 61(1A) inserted by No 6 of 2012, s 3 and Sch 1 item 18, applicable to the variation or revocation of determinations made before, on or after 7 March 2012.
61(1B)
In deciding whether to take action under subclause (1A), the *Secretary may consider any or all of the following matters:
(a)
in the case of non-compliance or possible non-compliance by the *VET provider:
(i)
whether the non-compliance or possible non-compliance is of a minor or major nature; and
(ii)
the period for which the provider has been approved as a VET provider; and
(iii)
the provider's history of compliance with this Schedule and the regulations (if any) relating to this Schedule, and the *VET Guidelines that apply to the provider;
(b)
in any case, the impact of the VET provider's non-compliance, possible non-compliance or possible lack of financial viability, and of the proposed variation or revocation of the determination, on:
(i)
the VET provider's students; and
(ii)
vocational education and training provided by the VET provider; and
(iii)
the provision of vocational education and training generally;
(c)
in any case, the public interest;
(d)
in any case, any other matters specified in the VET Guidelines.
History
Pt 3 cl 61(1B) amended by No 160 of 2012, s 3 and Sch 3 items 33 and 34, by substituting "*VET Guidelines" for "Guidelines made under clause 99" in para (a)(iii) and "VET" for "*VET Administration" in para (d), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 3 cl 61(1B) inserted by No 6 of 2012, s 3 and Sch 1 item 18, applicable to the variation or revocation of determinations made before, on or after 7 March 2012.
61(2)
If the advance exceeds the amount that becomes payable, an amount equal to the excess may be:
(a)
deducted from any amount that is payable, or to be paid, to the provider under this Schedule; or
(aa)
deducted by the Commonwealth from any amount that is payable, or to be paid, to the provider:
(i)
if the provider is a higher education provider - under section 110-1 of this Act; or
(ii)
if the provider is an approved course provider under the VET Student Loans Act 2016 - under section 19 of that Act; or
(b)
recovered by the Commonwealth from the provider as a debt due to the Commonwealth.
History
Pt 3 cl 61(2) amended by No 17 of 2021, s 3 and Sch 1 item 3, by inserting para (aa), effective 2 March 2021.
61(3)
If the provider uses the advance for a purpose other than that for which it was given, an amount equal to the advance may be:
(a)
deducted from any amount that is payable, or to be paid, to the provider under this Schedule; or
(aa)
deducted by the Commonwealth from any amount that is payable, or to be paid, to the provider:
(i)
if the provider is a higher education provider - under section 110-1 of this Act; or
(ii)
if the provider is an approved course provider under the VET Student Loans Act 2016 - under section 19 of that Act; or
(b)
recovered by the Commonwealth from the provider as a debt due to the Commonwealth.
History
Pt 3 cl 61(3) amended by No 17 of 2021, s 3 and Sch 1 item 4, by inserting para (aa), effective 2 March 2021.
61(4)
The conditions that would be applicable to a payment of the amount on account of which the advance is made are applicable to the advance.
61(5)
This clause does not affect determinations of advances under section 164-10.
History
Pt 3 cl 61(5) inserted by No 6 of 2012, s 3 and Sch 1 item 19, effective 7 March 2012.
SECTION 61A
61A
Amounts owed by VET providers may be set off against amounts payable under this Act or the
VET Student Loans Act 2016
An amount payable by a *VET provider to the Commonwealth under this Schedule may, in whole or in part, be:
(a)
deducted by the Commonwealth from any amount that is payable, or to be paid, to the provider:
(i)
if the provider is a higher education provider - under section 110-1 of this Act; or
(ii)
if the provider is an approved course provider under the VET Student Loans Act 2016 - under section 19 of that Act; or
(b)
recovered by the Commonwealth from the provider as a debt due to the Commonwealth.
Example:
If the VET provider is an approved course provider under the VET Student Loans Act 2016, amounts payable by the provider to the Commonwealth under clause 56 of this Schedule may be set off against loan amounts payable to the provider under that Act.
History
Pt 3 cl 61A inserted by No 17 of 2021, s 3 and Sch 1 item 5, effective 2 March 2021.
SECTION 62
62
Rounding of amounts
If an amount payable by the Commonwealth under this Schedule is an amount made up of dollars and cents, round the amount down to the nearest dollar.
Division 12 - Administrative requirements on VET providers
SECTION 63
63
What this Division is about
This Division imposes a number of administrative requirements on VET providers.
SECTION 64
Notices
Who gets a notice?
64(1)
A *VET provider must give such notices as are required by the *VET Guidelines to a person:
(a)
who is enrolled with the provider for a *VET unit of study; and
(b)
who is seeking Commonwealth assistance under this Schedule for the unit.
History
Pt 3 cl 64(1) amended by No 160 of 2012, s 3 and Sch 3 item 35, by omitting "Administration" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Contents of notice
64(2)
A notice must contain the information set out in the *VET Guidelines as information that must be provided in such a notice.
History
Pt 3 cl 64(2) amended by No 160 of 2012, s 3 and Sch 3 item 35, by omitting "Administration" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Manner in which notice to be given
64(2A)
A notice must be given in the manner (if any) set out in the *VET Guidelines.
History
Pt 3 cl 64(2A) inserted by No 168 of 2015, s 3 and Sch 1 item 16, effective 31 December 2015.
Date by which notice to be given
64(3)
A notice must be given within the period set out in the *VET Guidelines.
History
Pt 3 cl 64(3) amended by No 160 of 2012, s 3 and Sch 3 item 35, by omitting "Administration" before "Guidelines.", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Purpose and effect of notice
64(4)
A notice under this clause is given for the purpose only of providing information to a person. Any liability or entitlement of a person under this Schedule is not affected by:
(a)
the failure of a *VET provider to give a notice under this clause; or
(b)
the failure of a VET provider to give such a notice by the date required under the *VET Guidelines; or
(c)
the notice containing an incorrect statement.
History
Pt 3 cl 64(4) amended by No 160 of 2012, s 3 and Sch 3 item 36, by omitting "Administration" before "Guidelines" in para (b), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
SECTION 65
Correction of notices
VET provider to correct notice
65(1)
If, after giving a person a notice under clause 64, a *VET provider is satisfied that a material particular in the notice was not, or has ceased to be, correct, the provider must give a further written notice to the person setting out the correct particular.
Person may request correction of notice
65(2)
A person who receives a notice from a *VET provider under clause 64 may give to the provider a written request for the notice to be corrected in respect of a material particular if the person considers that the notice was not, or has ceased to be, correct in that particular.
65(3)
The request must be given to an *appropriate officer of the provider either:
(a)
within 14 days after the day the notice was given; or
(b)
within such further period as the provider allows for the giving of the request.
65(4)
The request must:
(a)
specify the particular in the notice that the person considers is incorrect; and
(b)
specify the reasons the person has for considering that the particular is incorrect.
65(5)
The making of the request does not affect any liability or entitlement of the person under this Schedule.
VET provider to process request
65(6)
If a *VET provider receives a request under this clause the provider must, as soon as practicable:
(a)
determine the matter to which the request relates; and
(b)
notify the person in writing of the provider's determination; and
(c)
if the provider determines that a material particular in the notice was not, or has ceased to be, correct - give a further notice under subclause (1).
SECTION 66
66
Charging VET tuition fees
A *VET provider must not require a *domestic student who is enrolling in a unit in circumstances that make it a replacement unit within the meaning of the *VET tuition assurance requirements to pay to the provider the student's *VET tuition fee for the unit.
SECTION 67
Determining census dates
67(1)
A *VET provider must, for each *VET unit of study it provides or proposes to provide during a period ascertained in accordance with the *VET Guidelines, determine for that period a particular date to be the *census date for the unit.
Note:
If a VET provider provides the same unit over different periods, the unit is taken to be a different VET unit of study in respect of each period. Therefore the provider will have to determine a separate census date in respect of each period.
History
Pt 3 cl 67(1) amended by No 160 of 2012, s 3 and Sch 3 item 37, by omitting "Administration" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
67(2)
A date determined under subclause (1) must be determined in accordance with the *VET Guidelines.
History
Pt 3 cl 67(2) substituted by No 160 of 2012, s 3 and Sch 4 item 4, effective 1 January 2013. Pt 3 cl 67(2) formerly read:
67(2)
A date determined under subclause (1) must not occur less than 20% of the way through the period during which the unit is undertaken.
67(3)
The provider must publish the *census date for the unit by the date ascertained in accordance with, and in the manner specified in, the *VET Guidelines.
History
Pt 3 cl 67(3) amended by No 160 of 2012, s 3 and Sch 3 item 37, by omitting "Administration" before "Guidelines.", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Variations
67(4)
The provider must not vary the *census date for the unit after publication under subclause (3), unless the provider:
(a)
does so:
(i)
before the date ascertained in accordance with the *VET Guidelines; and
(ii)
in circumstances specified in the VET Guidelines; or
(b)
does so with the written approval of the Minister.
History
Pt 3 cl 67(4) amended by No 160 of 2012, s 3 and Sch 3 item 38, by omitting "Administration" before "Guidelines" in para (a)(i) and (ii), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
67(5)
If paragraph (4)(a) applies, the provider must publish the variation by the date ascertained in accordance with, and in the manner specified in, the *VET Guidelines.
History
Pt 3 cl 67(5) amended by No 160 of 2012, s 3 and Sch 3 item 39, by omitting "Administration" before "Guidelines.", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
67(6)
If paragraph (4)(b) applies, the provider must publish the variation by the date, and in the manner, specified by the Minister in the approval.
SECTION 68
68
Communications with the Commonwealth concerning students etc
In communications under, or for the purposes of, this Schedule between the Commonwealth and a *VET provider concerning a person who:
(a)
is enrolled, or seeking to enrol, in a *VET unit of study with the provider; and
(b)
has indicated that the person is seeking Commonwealth assistance under this Schedule for the unit;the provider must use any identifier for that person that the *Secretary has indicated must be used in such communications.
Division 13 - Electronic communications
SECTION 69
69
What this Divison is about
Certain documents that this Schedule requires or permits to be given between students and VET providers may be transmitted electronically.
SECTION 70
Guidelines may deal with electronic communications
70(1)
The *VET Guidelines may make provision for or in relation to requiring or permitting information or documents to be given by students to *VET providers, or by VET providers to students, in accordance with particular information technology requirements:
(a)
on a particular kind of data storage device; or
(b)
by means of a particular kind of electronic communication.
History
Pt 3 cl 70(1) amended by No 160 of 2012, s 3 and Sch 3 item 40, by omitting "Administration" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
70(2)
The *VET Guidelines may make provision for or in relation to requiring, in relation to an electronic communication from a student to a *VET provider:
(a)
that the communication contain an electronic signature (however described); or
(b)
that the communication contain a unique identification in an electronic form; or
(c)
that a particular method be used to identify the originator of the communication and to indicate the originator's approval of the information communicated.
History
Pt 3 cl 70(2) amended by No 160 of 2012, s 3 and Sch 3 item 40, by omitting "Administration" before "Guidelines", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
70(3)
The reference in subclause (1) to giving information includes a reference to anything that is
giving information
for the purposes of section 9 of the Electronic Transactions Act 1999.
70(4)
In this clause:
data storage device
has the same meaning as in the Electronic Transactions Act 1999.
"electronic communication"
has the same meaning as in the Electronic Transactions Act 1999.
information
has the same meaning as in the Electronic Transactions Act 1999.
information technology requirements
has the same meaning as in the Electronic Transactions Act 1999.
Division 14 - Management of information
History
Pt 3 Div 14 heading substituted by No 6 of 2012, s 3 and Sch 1 item 13, applicable in relation to information whether it was obtained or created before, on or after 7 March 2012. The heading formerly read:
Division 14 - Protection of VET personal information
Subdivision 14-A - (Repealed by No 156 of 2012)
History
Pt 3 Subdiv 14-A heading repealed by No 156 of 2012, s 3 and Sch 3 item 3, applicable to information obtained or created before, on or after 18 November 2012. The heading formerly read:
Subdivision 14-A - Protection of VET personal information
Pt 3 Subdiv 14-A heading inserted by No 6 of 2012, s 3 and Sch 1 item 13, applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
SECTION 71
71
What this Division is about
A VET officer who discloses, copies or records VET personal information otherwise than in the course of official employment, or causes unauthorised access to or modification of VET personal information, commits an offence unless an exception applies.
History
Pt 3 cl 71 amended by No 103 of 2019, s 3 and Sch 3 item 13, by inserting "unless an exception applies", applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
SECTION 72
72
Meaning of
VET personal information
VET personal information
is:
(a)
information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(i)
whether the information or opinion is true or not; and
(ii)
whether the information or opinion is recorded in a material form or not; and
(b)
obtained or created by a *VET officer for the purposes of:
(i)
Division 5A of Part 1, or Part 2, of this Schedule; or
(ii)
Chapter 4, to the extentthat it relates to this Schedule.
History
Pt 3 cl 72 amended by No 168 of 2015, s 3 and Sch 1 item 27, by substituting para (b), effective 31 December 2015. Para (b) formerly read:
(b)
obtained or created by a *VET officer for the purposes of Part 2 of this Schedule and Chapter 4.
Pt 3 cl 72 amended by No 197 of 2012, s 3 and Sch 5 item 45, by substituting para (a) in the definition of "VET personal information", effective 12 March 2014. Para (a) formerly read:
(a)
information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; and
SECTION 73
Use of VET personal information
Offence
73(1)
A *VET officer commits an offence if:
(a)
the officer either:
(i)
discloses information; or
(ii)
makes a copy or other record of information; and
(b)
the information is *VET personal information; and
(c)
the information was acquired by the officer in the course of the officer's *official employment; and
(d)
the disclosure did not occur, or the copy or record was not made, in the course of that official employment.
Penalty: Imprisonment for 2 years.
History
Pt 3 cl 73 amended by No 103 of 2019, s 3 and Sch 3 item 15, by inserting "(1)" before "A", applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
Exception - consent
73(2)
Subclause (1) does not apply if the person to whom the *VET personal information relates has consented to the disclosure, or the making of the copy or record.
Note:
A defendant bears an evidential burden in relation to the matter in this subclause: see subsection 13.3(3) of the Criminal Code.
History
Pt 3 cl 73(2) inserted by No 103 of 2019, s 3 and Sch 3 item 16, applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
Exception - authorised or required by a Commonwealth law
73(3)
Subclause (1) does not apply if the disclosure, or the making of the copy or record, is authorised or required by a law of the Commonwealth.
Note:
A defendant bears an evidential burden in relation to the matter in this subclause: see subsection 13.3(3) of the Criminal Code.
History
Pt 3 cl 73(3) inserted by No 103 of 2019, s 3 and Sch 3 item 16, applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
Exception - authorised or required by certain State or Territory laws
73(4)
Subclause (1) does not apply if the disclosure, or the making of the copy or record, is authorised or required by a law of a State or Territory:
(a)
that relates to the administration, regulation or funding of vocational education or training; or
(b)
that is specified in the *VET Guidelines for the purposes of this paragraph.
Note:
A defendant bears an evidential burden in relation to the matter in this subclause: see subsection 13.3(3) of the Criminal Code.
History
Pt 3 cl 73(4) inserted by No 103 of 2019, s 3 and Sch 3 item 16, applicable in relation to the disclosure, or the making of a copy or record, of information after 28 November 2019, whether the information was obtained or created before or after 28 November 2019.
SECTION 74
Meanings of
VET officer
etc and
official employment
Meaning of
VET officer
74(1)
A person is a
VET officer
if:
(a)
the person is or was a *Commonwealth officer (see subsection 179-15(2)); or
(aa)
the person is or was an *officer of a Tertiary Admission Centre (see subsection 179-15(3B)); or
(b)
the person is or was an *officer of a *VET provider (see subclause (2)).
History
Pt 3 cl 74(1) amended by No 121 of 2009, s 3 and Sch 2 item 10, by inserting para (aa), effective 7 December 2009.
74(2)
A person is an
officer of a VET provider
if the person is:
(a)
an officer or employee of the provider; or
(b)
a person who, although not an officer or employee of the provider, performs services for or on behalf of the provider.
Meaning of
official employment
74(3)
Official employment
of a *VET officer is:
(a)
for a *Commonwealth officer - the performance of duties or functions, or the exercise of powers:
(i)
under, or for the purposes of, this Schedule; or
(ii)
conferred as described in clause 39GB (about functions and powers under the Regulatory Powers Act); or
(aa)
for an *officer of a Tertiary Admission Centre - service as such an officer; or
(b)
for an *officer of a VET provider - service as such an officer.
History
Pt 3 cl 74(3) amended by No 168 of 2015, s 3 and Sch 1 item 28, by substituting para (a), effective 31 December 2015. Para (a) formerly read:
(a)
for a *Commonwealth officer - the performance of duties or functions, or the exercise of powers, under, or for the purposes of, this Schedule; or
Pt 3 cl 74(3) amended by No 121 of 2009, s 3 and Sch 2 item 11, by inserting para (aa), effective 7 December 2009.
SECTION 75
75
When information is disclosed in the course of official employment
Without limiting the matters that are disclosures that occur in the course of a *VET officer's *official employment for the purposes of paragraph 73(d), the following disclosures are taken to be disclosures that occur in the course of a VET officer's official employment:
(a)
disclosure by a *Commonwealth officer of *VET personal information to another Commonwealth officer to assist that other officer in the other officer's official employment;
(aa)
disclosure by a Commonwealth officer of VET personal information in accordance with Division 180;
(ab)
disclosure by a Commonwealth officer of VET personal information relating to a *civil penalty provision for purposes relating to:
(i)
monitoring or investigating compliance with the civil penalty provision; or
(ii)
enforcing the civil penalty provision; or
(iii)
issuing an infringement notice in relation to the civil penalty provision;
(b)
disclosure by a VET officer of VET personal information to the Administrative Review Tribunal in connection with a *reviewable VET decision;
(c)
disclosure by a Commonwealth officer of VET personal information to an *officer of a VET provider to assist the provider's officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Schedule;
(ca)
disclosure by a Commonwealth officer of VET personal information to an *officer of a Tertiary Admission Centre to assist the officer of the Tertiary Admission Centre to assist the officer of the Tertiary Admission Centre in performing duties or functions, or in exercising powers, under, or for the purposes of, this Schedule.
(cb)
disclosure by a Commonwealth officer of VET personal information to a person appointed to, or employed or engaged by, a *State or Territory VET regulator to assist the person in their service with that regulator;
(d)
disclosure by an officer of a VET provider of VET personal information to a Commonwealth officer to assist the Commonwealth officer in the Commonwealth officer's official employment;
(e)
disclosure by an officer of a VET provider of VET personal information to an officer of a Tertiary Admission Centre to assist the officer of the Tertiary Admission Centre in performing duties or functions, or in exercising powers, under, or for the purposes of, this Schedule;
(f)
disclosure by an officer of a Tertiary Admission Centre of VET personal information to a Commonwealth officer to assist the Commonwealth officer in the Commonwealth officer's official employment;
(g)
disclosure by an officer of a Tertiary Admission Centre of VET personal information to an officer of a VET provider to assist the provider's officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Schedule.
History
Pt 3 cl 75 amended by No 39 of 2024, s 3 and Sch 5 item 41, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal" in para (b), effective 14 October 2024.
Pt 3 cl 75 amended by No 168 of 2015, s 3 and Sch 1 items 17 and 29, by inserting para (ab) and (cb), effective 31 December 2015.
Pt 3 cl 75 amended by No 156 of 2012, s 3 and Sch 3 item 5, by inserting para (aa), applicable to information obtained or created before, on or after 18 November 2012.
Pt 3 cl 75 amended by No 121 of 2009, s 3 and Sch 2 items 12 and 13, by inserting paras (ca), (e), (f) and (g), effective 7 December 2009.
SECTION 76
Commissioner may disclose information
76(1)
Despite anything in an Act of which the *Commissioner has the general administration, the Commissioner, or a person authorised by the Commissioner, may communicate *VET personal information to a *VET officer for use by that officer:
(a)
in the case of a *Commonwealth officer - in the course of the officer's *official employment; or
(aa)
in the case of an *officer of a Tertiary Admission Centre - to assist the officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Schedule; or
(b)
in the case of an *officer of a *VET provider - to assist the officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Schedule.
History
Pt 3 cl 76(1) amended by No 121 of 2009, s 3 and Sch 2 item 14, by inserting para (aa), effective 7 December 2009.
76(2)
Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against an Act of which the *Commissioner has the general administration, the defendant does not bear an evidential burden in relation to whether this clause applies to a communication of *VET personal information.
SECTION 77
Oath or affirmation to protect information
77(1)
A *VET officer must, if and when required by the *Secretary or the *Commissioner to do so, make an oath or affirmation to protect information in accordance with this Division.
History
Pt 3 cl 77(1) amended by No 156 of 2012, s 3 and Sch 3 item 6, by substituting "Division" for "Subdivision", applicable to information obtained or created before, on or after 18 November 2012.
Pt 3 cl 77(1) amended by No 6 of 2011, s 3 and Sch 1 item 15, by substituting "Subdivision" for "Division", applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
77(2)
The *Secretary may determine, in writing:
(a)
the form of the oath or affirmation that the Secretary will require; and
(b)
the manner in which the oath or affirmation must be made.
77(3)
The *Commissioner may determine, in writing:
(a)
the form of the oath or affirmation that the Commissioner will require; and
(b)
the manner in which the oath or affirmation must be made.
SECTION 78
Unauthorised access to, or modification of, VET personal information
78(1)
A person commits an offence if:
(a)
the person causes any unauthorised access to, or modification of, *VET personal information:
(i)
that is held in a computer; and
(ii)
to which access is restricted by an access control system associated with a function of the computer; and
(b)
the person intends to cause the access or modification; and
(c)
the person knows that the access or modification is unauthorised; and
(d)
either of the following apply:
(i)
the VET personal information is held in a computer of a *VET provider;
(ii)
the VET personal information is held on behalf of a provider;
(iii)
the VET personal information is held on a computer of a *Tertiary Admission Centre;
(iv)
the VET personal information is held on behalf of a Tertiary Admission Centre.
Penalty: 2 years imprisonment.
History
Pt 3 cl 78(1) amended by No 121 of 2009, s 3 and Sch 2 item 15, by inserting para (d) (iii) and (iv) at the end of para (d), effective 8 December 2009.
78(2)
Absolute liability applies to paragraph (1)(d).
Subdivision 14-B - (Repealed by No 156 of 2012)
History
Subdiv 14-B heading repealed by No 156 of 2012, s 3 and Sch 3 item 7, applicable to information obtained or created before, on or after 18 November 2012. The heading formerly read:
Subdivision 14-B - Other rules about information
Subdiv 14-B inserted by No 6 of 2012, s 3 and Sch 1 item 16, applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
SECTION 78A
78A
Officer may use information
A *VET officer may use *VET personal information in the course of the officer's *official employment.
History
Pt 3 cl 78A substituted by No 156 of 2012, s 3 and Sch 3 item 8, applicable to information obtained or created before, on or after 18 November 2012. Cl 78A formerly read:
SECTION 78A Authorisation of certain uses and disclosures of information
Information this clause applies to
78A(1)
This clause applies to information that:
(a)
is *VET personal information obtained in connection with an application under clause9 (which is about applications for approval of bodies as *VET providers); or
(b)
is information that:
(i)
is obtained by a *Commonwealth officer for the purposes of this Schedule; and
(ii)
is not VET personal information.
Use of information
78A(2)
A *Commonwealth officer may use the information in the course of his or her *official employment within the meaning of section 179-15.
Disclosure to TEQSA and National VET Regulator
78A(3)
The *Secretary may:
(a)
disclose the information to *TEQSA for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, the *TEQSA Act; and
(b)
disclose the information to the *National VET Regulator for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, the National Vocational Education and Training Regulator Act 2011.
This clause does not limit use or disclosure
78A(4)
This clause does not limit the use or disclosure of the information.
Pt 3 cl 78A inserted by No 6 of 2012, s 3 and Sch 1 item 16, applicable in relation to information whether it was obtained or created before, on or after 7 March 2012.
SECTION 78B
78B
This Division does not limit disclosure or use of information
This Division does not limit the disclosure or use of *VET personal information.
Note:
The disclosure or use of VET personal information may also be authorised in other circumstances. For example, see Division 180 and the Privacy Act 1988.
History
Pt 3 cl 78B inserted by No 156 of 2012, s 3 and Sch 3 item 8, applicable to information obtained or created before, on or after 18 November 2012.
Division 15 - Tax file numbers
Subdivision 15-A - Introduction
SECTION 79
What this Division is about
Requirements relating to students' tax file numbers apply to assistance under Part 2 that gives rise to VET FEE-HELP debts.
The Commissioner may notify VET providers or the Secretary of matters relating to tax file numbers.
VET providers have obligations relating to notifying students about tax file number
VET providers have obligations in relating to notifying students about tax file number requirements.
VET providers have obligations relating to cancelling the enrolment of students who do not have tax file numbers.
Note:
Part VA of the Income Tax Assessment Act 1936 provides for issuing, cancelling or altering tax file numbers.
History
Pt 3 cl 79 amended by No 74 of 2016, s 3 and Sch 2 item 5, by substituting "The Commissioner may notify VET providers or the Secretary of matters relating to tax file numbers." for "The Commissioner may notify VET providers of matters relating to tax file numbers.", effective 24 November 2016. For transitional provisions, see note under s 180-28. No 74 of 2016, s 3 and Sch 2 item 20 contains the following application provision:
20 Application of amendments
20
The amendments to Subdivisions 15-A and 15-B of Schedule 1A to the Higher Education Support Act 2003 do not apply in relation to a student and a VET course of study if, immediately before the commencement of this Schedule, the student met the tax file number requirements for assistance under Part 2 of Schedule 1A to that Act in relation to the course of study.
Subdivision 15-B - What are the tax file number requirements for assistance under Part 2?
SECTION 80
Meeting the tax file number requirements
80(1)
A student who is enrolled, or proposes to enrol, with a *VET provider in a *VET unit of study
meets the tax file number requirements
for assistance under Part 2 if:
(a)
the student notifies his or her *tax file number to:
(i)
an *appropriate officer of the provider; and
(ii)
the *Secretary;
and the provider is satisfied (in accordance with subclause (4)) that this number is a valid tax file number; or
(b)
the student gives to the officer 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.
History
Pt 3 cl 80(1) amended by No 74 of 2016, s 3 and Sch 2 item 6, by substituting para (a), effective 24 November 2016. For application provision, see note under Sch 1A cl 79. For transitional provisions, see note under s 180-28. Para (a) formerly read:
(a)
the student notifies his or her *tax file number to an *appropriate officer of the provider, and the provider is satisfied (in accordance with subclause (4)) that this number is a valid tax file number; or
80(2)
Compliance by a person with subclause (1) in relation to a *VET course of study is to be ignored in determining whether there has been compliance by the person with subclause (1) in relation to any other VET course of study.
80(2A)
If the student is seeking *VET FEE-HELP assistance for a *VET unit of study, he or she does not meet the tax file number requirements for the assistance unless he or she complies with subclause (1) on or before the *census date for the unit.
80(3)
A notification under paragraph (1)(a) may be included in a *request for Commonwealth assistance that the student has given to the provider in relation to:
(a)
the *VET unit of study for which the assistance is sought; or
(b)
the *VET course of study of which the unit forms a part; or
(c)
any other VET unit of study forming part of that course.
80(4)
The *Commissioner may issue guidelines about the circumstances in which a *VET provider is to be, or is not to be, satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(a).
80(5)
A certificate under paragraph (1)(b) must be in the *approved form.
History
Pt 3 cl 80(5) amended by No 6 of 2012, s 3 and Sch 2 item 7, by substituting "the *approved form" for "a form approved by the *Commissioner", effective 7 March 2012.
80(6)
A guideline issued under subclause (4) is a legislative instrument.
SECTION 81
81
Who is an appropriate officer?
An
appropriate officer
of a *VET provider, means a person, or a person included in a class of persons, whom:
(a)
the chief executive officer of the provider; or
(b)
a delegate of the chief executive officer of the provider;
has appointed to be an appropriate officer of the provider for the purposes of this Schedule.
SECTION 82
82
Student to notify tax file number when issued
If a student *meets the tax file number requirements for the assistance under paragraph 80(1)(b):
(a)
the student must notify his or her *tax file number to:
(i)
an *appropriate officer of the *VET provider; and
(ii)
the *Secretary;
within 21 days from the day on which the *Commissioner issues the tax file number to the student; and
(b)
the provider must be satisfied (in accordance with subclause 80(4)) that this number is a valid tax file number.
History
Pt 3 cl 82 amended by No 74 of 2016, s 3 and Sch 2 item 7, by substituting para (a), effective 24 November 2016. For application provision, see note under Sch 1A cl 79. For transitional provisions, see note under s 180-28. Para (a) formerly read:
(a)
the student must notify his or her *tax file number to an *appropriate officer of the *VET provider within 21 days from the day on which the *Commissioner issues the tax file number to the student; and
Subdivision 15-C - Who can the Commissioner notify of tax file number matters?
History
Pt 3 Subdiv 15-C heading substituted by No 74 of 2016, s 3 and Sch 2 item 8, effective 24 November 2016. For transitional provisions, see note under s 180-28. The heading formerly read:
Subdivision 15-C - In what circumstances can VET providers be notified of tax file number matters?
SECTION 83
83
When tax file numbers are issued etc
The *Commissioner may give to a *VET provider, and to the *Secretary, written notice of the *tax file number of a student who is enrolled in a *VET course of study with the provider if the Commissioner:
(a)
issues the tax file number to the student; or
(b)
refuses to issue a tax file number to the student on the ground that the student already has a tax file number.
History
Pt 3 cl 83 amended by No 74 of 2016, s 3 and Sch 2 item 9, by inserting ", and to the *Secretary,", effective 24 November 2016. For transitional provisions, see note under s 180-28.
SECTION 84
When tax file numbers are altered
84(1)
The *Commissioner may give to a *VET provider, and to the *Secretary, written notice of the *tax file number of a student who is enrolled in a *VET course of study with the provider if the Commissioner issues a new tax file number to the student in place of a tax file number that has been withdrawn.
History
Pt 3 cl 84(1) amended by No 74 of 2016, s 3 and Sch 2 item 10, by inserting ", and to the *Secretary,", effective 24 November 2016. For transitional provisions, see note under s 180-28.
84(2)
That new number is taken to be the number that the student notified to the provider and to the *Secretary.
History
Pt 3 cl 84(2) amended by No 74 of 2016, s 3 and Sch 2 item 11, by inserting "and to the *Secretary", effective 24 November 2016. For transitional provisions, see note under s 180-28.
SECTION 85
When tax file numbers are incorrectly notified - students with tax file numbers
85(1)
If the *Commissioner is satisfied:
(a)
that the *tax file number that a student has notified to a *VET provider or the *Secretary (or both):
(i)
has been cancelled or withdrawn since the notification was given; or
(ii)
is otherwise wrong; and
(b)
that the student has a tax file number;
the Commissioner may give to the provider and the Secretary written notice of the incorrect notification and of the student's tax file number.
History
Pt 3 cl 85(1) amended by No 74 of 2016, s 3 and Sch 2 items 12 and 13, by inserting "or the *Secretary (or both)" in para (a) and "and the Secretary", effective 24 November 2016. For transitional provisions, see note under s 180-28.
85(2)
That number is taken to be the number that the student notified to the provider and to the *Secretary.
History
Pt 3 cl 85(2) amended by No 74 of 2016, s 3 and Sch 2 item 14, by inserting "and to the *Secretary", effective 24 November 2016. For transitional provisions, see note under s 180-28.
SECTION 86
When tax file numbers are incorrectly notified - students without tax file numbers
86(1)
If:
(a)
the *Commissioner is satisfied that the *tax file number that a student notified to a *VET provider or the *Secretary (or both):
(i)
has been cancelled since the notification was given; or
(ii)
is for any other reason not the student's tax file number; and
(b)
the Commissioner is not satisfied that the student has a tax file number;
the Commissioner may give to the provider and the Secretary a written notice informing the provider and the Secretary accordingly.
History
Pt 3 cl 86(1) amended by No 74 of 2016, s 3 and Sch 2 items 15 and 16, by inserting "or the *Secretary (or both)" in para (a) and substituting "and the Secretary a written notice informing the provider and the Secretary" for "a written notice informing the provider", effective 24 November 2016. For transitional provisions, see note under s 180-28.
86(2)
The *Commissioner must give a copy of any notice under subclause (1) to the student concerned, together with a written statement of the reasons for the decision to give the notice.
Note:
Decisions to give notice under subclause (1) are reviewable under section 202F of the Income Tax Assessment Act 1936.
SECTION 87
When applications are refused or tax file numbers are cancelled
87(1)
If the *Commissioner:
(a)
refuses a student's application for the issue of a *tax file number; or
(b)
cancels a tax file number issued to a student;
the Commissioner may give to a *VET provider with which the student is enrolled in a *VET course of study, and to the *Secretary, a written notice informing the provider and the Secretary accordingly.
History
Pt 3 cl 87(1) amended by No 74 of 2016, s 3 and Sch 2 item 17, by substituting ", and to the *Secretary, a written notice informing the provider and the Secretary" for "a written notice informing the provider", effective 24 November 2016. For transitional provisions, see note under s 180-28.
87(2)
The *Commissioner must give a copy of any notice under subclause (1) to the student concerned, together with a written statement of the reasons for the decision to give the notice.
Note:
Decisions to give notice under subclause (1) are reviewable under section 202F of the Income Tax Assessment Act 1936.
Subdivision 15-D - Other provisions relating to tax file numbers
SECTION 88
Giving information about tax file number requirements
Requests for VET FEE-HELP assistance - requirements on VET providers
88(1)
A *VET provider must notify a person in writing how to *meet the tax file number requirements if:
(a)
the person is enrolled in a *VET unit of study with the provider; and
(b)
the person has, on or before the *census date for the unit, completed, signed and given to the *appropriate officer of the provider a *request for Commonwealth assistance in relation to the unit or, where the *VET course of study of which the unit forms a part is undertaken with the provider, in relation to the VET course of study; and
(c)
in that request, the person requests *VET FEE-HELP assistance for the unit or the course; and
(d)
the request does not include a number that purports to be the person's *tax file number.
88(2)
The provider must notify the person under subclause (1):
(a)
on or before the *census date for the unit; or
(b)
within 7 days after the person gives the provider the *request for Commonwealth assistance;whichever is earlier.
88(3)
A
request for Commonwealth assistance
, in relation to a person enrolling in a *VET unit of study means a document:
(a)
in which the person requests the Commonwealth to provide assistance under this Act in relation to the unit or, where the unit forms part of a *VET course of study undertaken with the provider, in relation to the course of study; and
(aa)
if subclause (3A) applies to the person - that is signed by a *responsible parent of the person (in addition to being signed by the person); and
(b)
that is in the form approved by the Minister.
History
Pt 3 cl 88(3) amended by No 168 of 2015, s 3 and Sch 1 item 18, by inserting para (aa), effective 31 December 2015.
88(3A)
This subclause applies to the person if the person:
(a)
is under 18 years old; and
(b)
has at least one *responsible parent;
unless the person is receiving, or has received, youth allowance (within the meaning of the Social Security Act 1991) on the basis that the person is independent (within the meaning of Part 2.11 of that Act).
History
Pt 3 cl 88(3A) inserted by No 168 of 2015, s 3 and Sch 1 item 19, effective 31 December 2015.
Cases where there is no obligation to notify
88(4)
Subclauses (1) and (2) do not apply to the person if the person, in the *request for Commonwealth assistance, requests *VET FEE-HELP assistance but the person is not entitled to the assistance.
History
Pt 3 cl 88(4) amended by No 168 of 2015, s 3 and Sch 1 item 20, by substituting "Subclauses (1) and (2) do" for "This clause does", effective 31 December 2015.
SECTION 89
No entitlement to VET FEE-HELP assistance for students without tax file numbers
89(1)
This subclause applies to a person in relation to a *VET unit of study if:
(a)
the person is enrolled with a *VET provider in the unit; and
(b)
the provider receives notice under clause 86 or 87 to the effect that the person does not have, or no longer has, a *tax file number; and
(c)
at the end of 28 days after the provider receives that notice, the provider has not been notified of a number that the provider is satisfied (in accordance with subclause (3)) is a valid tax file number; and
(d)
the person is entitled to *VET FEE-HELP assistance for the unit (ignoring paragraph 43(1)(h)).
Note:
The person's HELP balance in relation to the unit is re-credited: see subclause 47(1).
History
Pt 2 cl 89(1) amended by No 76 of 2018, s 3 and Sch 3 item 116, by substituting "HELP balance" for "FEE-HELP balance" in the note, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
89(2)
A *VET provider must, in deciding whether it is satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(d), comply with the guidelines issued by the *Commissioner under subclause 80(4).
89(3)
A *VET provider must comply with any requirements, set out in guidelines issued by the *Commissioner, relating to procedures for informing persons of the need to obtain a valid *tax file number where the persons may be affected by subclause (1) applying to them.
89(4)
A guideline issued under subclause (3) is a legislative instrument.
Division 16 - Review of decisions
Subdivision 16-A - Introduction
SECTION 90
90
What this Division is about
Some decisions made under this Schedule are subject to reconsideration and then review by the Administrative Review Tribunal.
History
Pt 3 cl 90 amended by No 39 of 2024, s 3 and Sch 5 item 42, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal", effective 14 October 2024.
Subdivision 16-B - Which decisions are subject to review?
SECTION 91
91
Reviewable VET decisions etc
The following table sets out:
(a)
the
reviewable VET decisions
under this Schedule; and
(b)
the
decision maker
, for the purposes of this Division, in respect of each of those decisions.
Table
Table
Reviewable VET decisions
|
Item
|
Decision
|
Provision under which decision is made
|
Decision maker
|
1A |
A decision to impose a condition on the approval of a *VET provider |
subclause 12A(1) |
the Minister |
1B |
A decision to vary a condition imposed on the approval of a *VET provider |
subclause 12A(2) |
the Minister |
1C |
(Repealed by No 17 of 2021) |
|
|
1D |
(Repealed by No 17 of 2021) |
|
|
1E |
Refusal to grant a credit for a *VET provider's *VET FEE-HELP account |
paragraph 45D(2)(f) |
the *Secretary |
1F |
Granting a credit for a *VET provider's *VET FEE-HELP account |
paragraph 45D(2)(f) |
the *Secretary |
1G |
Refusal to remit the general interest charge |
subclause 45E(7) |
the *Secretary |
1H |
Remitting part of the general interest charge |
subclause 45E(7) |
the *Secretary |
1 |
Refusal to re-credit a person's *HELP balance |
subclause 46(2) |
(a) the *VET provider with whom the student is enrolled in the unit; or
(b) if the *Secretary made the decision to refuse the re crediting - the Secretary |
2 |
Refusal to re-credit a person's *HELP balance |
subclause 46A(1) |
the *Secretary |
3 |
Re-crediting a person's *HELP balance |
subclause 46A(1) |
the *Secretary |
4 |
Refusal of an application under subclause 46AA(3) to re-credit a person's *HELP balance |
subclause 46AA(1) |
the *Secretary |
5 |
A decision to re-credit a person's *HELP balance to which subclause 56(4) applies |
subclause 46AA(1) |
the *Secretary |
Note:
The decisions referred to in item 1 of the table are made by a VET provider on the Secretary's behalf.
History
Pt 3 cl 91 amended by No 17 of 2021, s 3 and Sch 1 item 16, by repealing table items 1C and 1D, effective 1 July 2021. For saving provision, see note under Div 5 heading. Table items 1C and 1D formerly read:
1C |
A decision to suspend a body's approval as a *VET provider |
subclause 36(5) |
the *Secretary |
1D |
A decision that concerns have not been satisfactorily resolved in accordance with a plan agreed with the Commonwealth |
paragraph 36(6)(b) |
the *Secretary |
Pt 3 cl 91 amended by No 160 of 2018, s 3 and Sch 2 item 7, by substituting "*HELP balance" for "*FEE-HELP balance" in table items 4 and 5, effective 1 January 2020.
Pt 3 cl 91 amended by No 76 of 2018, s 3 and Sch 3 items 117-119, by substituting "*HELP balance" for "*FEE-HELP balance" at table item 1, column headed "Decision", "*HELP balance" for "*FEE-HELP balance" at table item 2, column headed "Decision" and "*HELP balance" for "*FEE-HELP balance" at table item 3, column headed "Decision", effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
Pt 3 cl 91 amended by No 160 of 2018, s 3 and Sch 1 item 6, by inserting table items 4 and 5, effective 1 January 2019.
Pt 3 cl 91 amended by No 168 of 2015, s 3 and Sch 1 items 20A and 21, by inserting table items 1C to 1H, 2 and 3, effective 31 December 2015.
Pt 3 cl 91 amended by No 72 of 2011, s 3 and Sch 1 item 31, by inserting table items 1A and 1B, effective 30 June 2011.
SECTION 92
92
Deadlines for making reviewable VET decisions
If:
(a)
this Schedule provides for a person to apply to a *decision maker to make a *reviewable VET decision; and
(b)
a period is specified under this Schedule for giving notice of the decision to the applicant; and
(c)
the decision maker has not notified the applicant of the decision maker's decision within that period;the decision maker is taken, for the purposes of this Schedule, to have made a decision to reject the application.
SECTION 93
Decision maker must give reasons for reviewable VET decisions
93(1)
If this Schedule requires the *decision maker to notify a person of the making of a *reviewable VET decision, the notice must include reasons for the decision.
93(2)
Subclause (1) does not affect an obligation, imposed upon the *decision maker by any other law, to give reasons for a decision.
Subdivision 16-C - How are decisions reconsidered?
SECTION 94
Reviewer of decisions
94(1)
The
reviewer
of a *reviewable VET decision is:
(a)
if the *decision maker was a *VET provider acting on behalf of the *Secretary - the Secretary; or
(b)
in any other case - the decision maker, but see subclause (2).
94(2)
If:
(a)
a *reviewable VET decision was made by a delegate of a *decision maker; and
(b)
the decision is to be reconsidered by a delegate of the decision maker;then the delegate who reconsiders the decision must be a person who:
(c)
was not involved in making the decision; and
(d)
occupies a position that is senior to that occupied by any person involved in making the decision.
Note:
The Secretary may delegate to a review officer of a VET provider the power to reconsider reviewable VET decisions made under Part 2: see subclause 98(2).
SECTION 95
Reviewer may reconsider reviewable VET decisions
95(1)
The *reviewer of a *reviewable VET decision may reconsider the decision if the reviewer is satisfied that there is sufficient reason to do so.
95(2)
The *reviewer may reconsider the decision even if:
(a)
an application for reconsideration of the decision has been made under clause 96; or
(b)
the decision has been confirmed, varied or set aside under clause 96and an application has been made under clause 97 for review of the decision.
95(3)
After reconsidering the decision, the *decision maker must:
(a)
confirm the decision; or
(b)
vary the decision; or
(c)
set the decision aside and substitute a new decision.
95(4)
The *reviewer's decision (the
decision on review
) to confirm, vary or set aside the decision takes effect:
(a)
on the day specified in the decision on review; or
(b)
if a day is not specified - on the day on which the decision on review was made.
95(5)
The *reviewer must give written notice of the decision on review to the person to whom that decision relates.
95(6)
The notice:
(a)
must be given within a reasonable period after the decision is made; and
(b)
must contain a statement of the reasons for the *reviewer's decision on review.
Note:
Section 266 of the Administrative Review Tribunal Act 2024 requires the person to be notified of the person's review rights.
History
Pt 3 cl 95 amended by No 39 of 2024, s 3 and Sch 5 item 43, by substituting "Section 266 of the Administrative Review Tribunal Act 2024" for "Section 27A of the Administrative Appeals Tribunal Act 1975" in the note, effective 14 October 2024.
SECTION 96
Reconsideration of reviewable VET decisions on request
96(1)
A person whose interests are affected by a *reviewable VET decision may request the *reviewer to reconsider the decision.
96(2)
The person's request must be made by written notice given to the *reviewer within 28 days, or such longer period as the reviewer allows, after the day on which the person first received notice of the decision.
96(3)
The notice must set out the reasons for making the request.
96(4)
After receiving the request, the *reviewer must reconsider the decision and:
(a)
confirm the decision; or
(b)
vary the decision; or
(c)
set the decision aside and substitute a new decision.
96(5)
The *reviewer's decision (the
decision on review
) to confirm, vary or set aside the decision takes effect:
(a)
on the day specified in the decision on review; or
(b)
if a day is not specified - on the day on which the decision on review was made.
96(6)
The *reviewer must give the person written notice of the decision on review.
96(7)
The notice:
(a)
must be given within a reasonable period after the decision on review is made; and
(b)
must contain a statement of the reasons for the decision on review.
96(8)
The *reviewer is taken, for the purposes of this Division, to have confirmed the decision if the reviewer does not give notice of a decision to the person within 45 days after receiving the person's request.
Note:
Section 266 of the Administrative Review Tribunal Act 2024 requires the person to be notified of the person's review rights.
History
Pt 3 cl 96 amended by No 39 of 2024, s 3 and Sch 5 item 44, by substituting "Section 266 of the Administrative Review Tribunal Act 2024" for "Section 27A of the Administrative Appeals Tribunal Act 1975" in the note, effective 14 October 2024.
Subdivision 16-D - Which decisions are subject to ART review?
History
Pt 3 Subdiv 16-D heading amended by No 39 of 2024, s 3 and Sch 5 item 45, by substituting "
ART
" for "
AAT
", effective 14 October 2024.
SECTION 97
97
ART review of reviewable VET decisions
History
Pt 3 cl 97 heading amended by No 39 of 2024, s 3 and Sch 5 item 46, by substituting "
ART
" for "
AAT
", effective 14 October 2024.
An application may be made to the Administrative Review Tribunal for the review of a *reviewable VET decision that has been confirmed, varied or set aside under clause 95 or 96.
History
Pt 3 cl 97 amended by No 39 of 2024, s 3 and Sch 5 item 47, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal", effective 14 October 2024.
PART 4 - Miscellaneous
SECTION 97A
Compensation for acquisition of property
97A(1)
If the operation of this Schedule would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
97A(2)
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
97A(3)
In this clause:
acquisition of property
has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms
has the same meaning as in paragraph 51(xxxi) of the Constitution.
History
Pt 4 cl 97A inserted by No 168 of 2015, s 3 and Sch 1 item 21A, effective 31 December 2015.
SECTION 98
Delegations by Secretary
98(1)
The *Secretary may, in writing, delegate to an APS employee all or any of the powers of the Secretary under the *VET Guidelines.
Note:
Section 238-5 provides for the Minister to delegate his or her powers under this Act.
History
Pt 4 cl 98(1) amended by No 160 of 2012, s 3 and Sch 4 item 5, by omitting "in the Department" after "an APS employee", effective 1 January 2013.
Pt 4 cl 98(1) amended by No 160 of 2012, s 3 and Sch 3 item 41, by substituting "the *VET Guidelines" for "any Guidelines made under clause 99", applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Pt 4 cl 98(1) amended by No 5 of 2011, s 3 and Sch 1 item 65, by inserting "under any Guidelines made", effective 22 March 2011.
98(2)
The *Secretary may, in writing, delegate to a *review officer of a *VET provider the Secretary's powers under Subdivision 16-C to reconsider *reviewable VET decisions made by the provider relating to Part 2.
98(3)
In exercising powers under the delegation, the delegate must comply with any directions of the *Secretary.
SECTION 99
VET Guidelines
99(1)
The Minister may, by legislative instrument, make guidelines (the
VET Guidelines
), providing for matters:
(a)
required or permitted by this Schedule to be provided; or
(b)
necessary or convenient to be provided in order to carry out or give effect to this Schedule.
Note:
The VET Guidelines may make different provision with respect to different matters or different classes of matters (see subsection 33(3A) of the Acts Interpretation Act 1901). For example, the VET Guidelines may provide for different requirements for different kinds of VET providers.
History
Pt 4 cl 99(1) substituted by No 160 of 2012, s 3 and Sch 3 item 42, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013. Pt 3 cl 99(1) formerly read:
99(1)
The Minister may, by legislative instrument, make Guidelines, specified in the second column of the table, providing for matters:
(a)
required or permitted by the corresponding provisions specified in the third column of the table to be provided; or
(b)
necessary or convenient to be provided in order to carry out or give effect to those provisions.
Table
Table
Guidelines
|
Item
|
Guidelines
|
Provisions
|
1 |
*VET Provider Guidelines |
Part 1 |
2 |
*VET FEE HELP Guidelines |
Section 137-18 and Part 2 |
3 |
*VET Tuition Fee Guidelines |
Part 2 |
4 |
*VET Administration Guidelines |
Part 3 |
Pt 4 cl 99(1) amended by No 121 of 2009, s 3 and Sch 1 items 8 to 11, by substituting "provisions" for "Part" in para (a), substituting "those provisions" for "that Part" in para (b), substituting "Provisions" for the cell in table heading "Part" and substituting "Section 137-18 and Part 2" for "Part 2" in table item 2, effective 7 December 2009. No 121 of 2009, s 3 and Sch 1 item 12 contains the following transitional provision:
Transitional - guidelines made under clause 99 of Schedule 1A to the Higher Education Support Act 2003
(1)
Guidelines in force under clause 99 of Schedule 1A to the Higher Education Support Act 2003 immediately before 7 December 2009 have effect after that commencement as if they had been issued under that clause as amended.
(2)
Subitem (1) does not prevent the repeal or amendment of the guidelines.
Indexation
99(2)
The *VET Guidelines may provide for the indexation of any or all amounts in the VET Guidelines, using the method of indexation set out in Part 5-6.
History
Pt 4 cl 99(2) amended by No 160 of 2012, s 3 and Sch 3 items 43 and 44, by substituting "The *VET Guidelines" for "Guidelines" (first occurring) and "VET Guidelines" for "Guidelines" (second occurring), applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
Schedule 1 - Dictionary
Note:
Section 1-10 describes how asterisks are used to identify terms that are defined in this Act.
SECTION 1
Definitions
1(1)
In this Act, unless the contrary intention appears:
ABS Remoteness Structure
means the Remoteness Structure described in:
(a)
the document titled "Australian Statistical Geography Standard (ASGS): Volume 5 - Remoteness Structure, July 2016", published by the Australian Statistician, as amended from time to time; or
(b)
the most recent replacement of the document referred to in paragraph (a) that is published by the Australian Statistician, as amended from time to time.
Note:
The Australian Statistical Geography Standard (ASGS): Volume 5 - Remoteness Structure, July 2016 could in 2019 be viewed on the Australian Bureau of Statistics website (https://www.abs.gov.au).
History
Definition of "ABS Remoteness Structure" inserted by No 103 of 2019, s 3 and Sch 2 item 14, effective 1 January 2020.
academic freedom
means the following:
(a)
the freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research;
(b)
the freedom of academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research;
(c)
the freedom of academic staff and students to express their opinions in relation to the higher education provider in which they work or are enrolled;
(d)
the freedom of academic staff to participate in professional or representative academic bodies;
(e)
the freedom of students to participate in student societies and associations;
(f)
the autonomy of the higher education provider in relation to the choice of academic courses and offerings, the ways in which they are taught and the choices of research activities and the ways in which they are conducted.
History
Definition of "academic freedom" inserted by No 22 of 2021, s 3 and Sch 1 item 4, effective 23 March 2021.
accelerator program course
has the meaning given by subsection 128B-25(1).
History
Definition of "accelerator program course" inserted by No 36 of 2023, s 3 and Sch 1 item 66, effective 29 June 2023.
accelerator program course fee
has the meaning given by subsection 19-92(3).
History
Definition of "accelerator program course fee" inserted by No 36 of 2023, s 3 and Sch 1 item 66, effective 29 June 2023.
accredited course
means a *course of study (other than an *enabling course) that:
(a)
if a *registered higher education provider is authorised by or under the *TEQSA Act to self-accredit the course of study - is accredited by the provider; and
(b)
otherwise - is accredited by TEQSA.
History
Definition of "accredited course" substituted by No 74 of 2011, s 3 and Sch 2 item 23, effective 29 January 2012. The definition formerly read:
accredited course
means a course that:
(a)
is a *course of study; and
(b)
is accredited by a *government accreditation authority.
Definition of "accredited course" amended by No 72 of 2007, s 3 and Sch 1 item 50, by substituting para (b), effective 31 December 2007. Para (b) formerly read:
(b)
is accredited by the Commonwealth or by a State or Territory accreditation agency listed in the *Australian Qualifications Framework Register.
accredited VET course
(Repealed by No 14 of 2011)
History
Definition of "accredited VET course" repealed by No 14 of 2011, s 3 and Sch 1 item 48, effective 1 July 2011. The definition formerly read:
accredited VET course
means a course that:
(a)
is a *VET course of study; and
(b)
is accredited by the Commonwealth or by a State or Territory VET Course Accrediting Body listed in the *Australian Qualifications Framework Register; and
(c)
is listed as a current VET Diploma, VET Advanced Diploma, VET Graduate Diploma or VET Graduate Certificate qualification on *NTIS.
Definition of "accredited VET course" inserted by No 170 of 2007, s 3 and Sch 1 item 18, effective 1 January 2008.
accumulated HELP debt
has the meaning given by section 140-25.
additional SLE
means additional SLE that a person has under subsection 73-10(1).
History
Definition of "additional SLE" inserted by No 93 of 2020, s 3 and Sch 4B item 12, effective 1 January 2022.
Former definition of "additional SLE" repealed by No 104 of 2011, s 3 and Sch 2 item 27, 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. The definition formerly read:
additional SLE
, of a person, means the amount of *Student Learning Entitlement that the person has under section 73-20, as reduced (if applicable) under Division 76.
AEA Advisory Board
has the meaning given by section 42-10.
History
Definition of "AEA Advisory Board" inserted by No 5 of 2023, s 3 and Sch 1 item 11, effective 15 March 2023.
affected unit
, of an *original course, means a unit of study that a student was undertaking as part of a *course of study when a higher education provider *defaulted in relation to the student.
History
Definition of "affected unit" inserted by No 111 of 2019, s 3 and Sch 2 item 31, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
annual financial reporting period
has the meanings given by subsection 19-10(3) and subclause 15(3) of Schedule 1A.
History
Definition of "annual financial reporting period" substituted by No 170 of 2007, s 3 and Sch 1 item 19, effective 1 January 2008. The definition formerly read:
Annual financial reporting period
has the meaning given by subsection 19-10(3).
applicable court
means:
(a)
the Federal Court of Australia; or
(b)
the Federal Circuit and Family Court of Australia (Division 2); or
(c)
a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
History
Definition of "applicable court" amended by No 13 of 2021, s 3 and Sch 2 item 457, by substituting para (b), effective 1 September 2021. Para (b) formerly read:
(b)
the Federal Circuit Court of Australia; or
Definition of "applicable court" inserted by No 168 of 2015, s 3 and Sch 1 item 30, effective 31 December 2015.
appropriate officer
:
(a)
in relation to a higher education provider, has the meaning given by section 187-2; and
(b)
in relation to a *VET provider, has the meaning given by clause 81 of Schedule 1A
History
Definition of "appropriate officer" substituted by No 170 of 2007, s 3 and Sch 1 item 20, effective 1 January 2008. The definition formerly read:
Appropriate officer
has the meaning given by section 187-2.
approved form
has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.
History
Definition of "approved form" inserted by No 6 of 2012, s 3 and Sch 2 item 8, effective 7 March 2012.
assessed worldwide income
has the meaning given by section 154-17.
History
Definition of "assessed worldwide income" inserted by No 154 of 2015, s 3 and Sch 1 item 7, applicable in relation to the 2016-17 income year and later income years.
Assessing body
has the meaning given by section 104-55.
Assessing body of a State or Territory
has the meaning given by subsection 104-55(3).
Assessment statement
has the meaning given by section 104-50.
Australia's Economic Accelerator program
means a program specified in the Other Grants Guidelines under which grants for purposes specified in item 14 of the table in subsection 41-10(1) are to be paid.
History
Definition of "Australia's Economic Accelerator program" inserted by No 5 of 2023, s 3 and Sch 1 item 11, effective 15 March 2023.
Australia's Economic Accelerator program information
has the meaning given by section 181-10.
History
Definition of "Australia's Economic Accelerator program information" inserted by No 5 of 2023, s 3 and Sch 1 item 11, effective 15 March 2023.
Australia's greenhouse gas emissions reduction targets
means:
(a)
if:
(i)
Australia's current nationally determined contribution was communicated in accordance with Article 4 of the Paris Agreement in June 2022; and
(ii)
that nationally determined contribution has not been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement;
the greenhouse gas emissions reduction targets set out in paragraphs 10(1)(a) and (b) of the Climate Change Act 2022; or
(b)
in any other case - the greenhouse gas emissions reduction targets included in:
(i)
Australia's current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or
(ii)
if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement - that nationally determined contribution, as adjusted and in force from time to time.
History
Definition of "Australia's greenhouse gas emissions reduction targets" inserted by No 5 of 2023, s 3 and Sch 1 item 11, effective 15 March 2023.
Australian branch
, of a *Table C provider, means:
(a)
if that provider conducts its higher education operations in Australia through a branch of the body corporate that is listed in Table C in section 16-23 - that branch; or
(b)
otherwise - the body corporate through which that provider conducts its higher education operations in Australia.
Australian Qualifications Framework
means the framework for recognition and endorsement of qualifications established by the Council:
(a)
that is established by the Council consisting of the Ministers for the Commonwealth and each State and Territory responsible for higher education; and
(b)
that is to give effect to agreed standards in relation to the provision of education in Australia;
as in force from time to time.
History
Definition of "Australian Qualifications Framework" substituted by No 74 of 2011, s 3 and Sch 1 item 24, effective 29 January 2012. The definition formerly read:
Australian Qualifications Framework
means the framework for recognition and endorsement of qualifications established by the Council:
(a)
comprised of the Ministers responsible for education, employment, training and youth affairs for the Commonwealth and each State; and
(b)
known as the Ministerial Council on Education, Employment, Training and Youth Affairs;
to give effect to agreed standards in relation to the provision of education in Australia.
Australian Qualifications Framework Register
(Repealed by No 103 of 2019)
History
Definition of "Australian Qualifications Framework Register" repealed by No 103 of 2019, s 3 and Sch 3 item 17, effective 28 November 2019. The definition formerly read:
Australian Qualifications Framework Register
means the Register:
(a)
that is called the Register of Recognised Education Institutions and Authorised Accreditation Authorities in Australia; and
(b)
that is maintained by the advisory board to the *Australian Qualifications Framework.
Australian Quality Training Framework
means the arrangements agreed from time to time between the Commonwealth, the States and the Territories to ensure the high quality of vocational education and training (VET) services.
History
Definition of "Australian Quality Training Framework" inserted by No 170 of 2007, s 3 and Sch 1 item 21, effective 1 January 2008.
Australian Statistician
means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975.
Australian university
means a *registered higher education provider:
(a)
that, for the purposes of the *TEQSA Act, is registered in a provider category that permits the use of the word "university"; and
(b)
that:
(i)
is established by or under, or recognised by, a law of the Commonwealth, a State or a Territory; or
(ii)
is registered as a company under Part 2A.2 of the Corporations Act 2001.
History
Definition of "Australian university" substituted by No 74 of 2011, s 3 and Sch 1 item 25, effective 29 January 2012. The definition formerly read:
Australian university
means a body corporate:
(a)
that meets the requirements set out in the *National Protocols for entities referred to in the National Protocols as Australian universities; and
(b)
whose name is included, or who owns or controls a business name that is included, in the *Australian Qualifications Framework Register as an Australian university.
Definition of "Australian university" inserted by No 72 of 2007, s 3 and Sch 1 item 51, effective 31 December 2007.
available
(Repealed by No 104 of 2011)
History
Definition of "available" repealed by No 104 of 2011, s 3 and Sch 2 item 28, 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. The definition formerly read:
available
, in relation to the amount of a person's *Student Learning Entitlement, has the meaning given by section 82-5.
AWE
(Repealed by No 76 of 2018)
History
Definition of "AWE" repealed by No 76 of 2018, s 3 and Sch 1 item 13, effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years. The definition formerly read:
AWE
has the meaning given by subsection 154-25(2).
Basic grant amount
(Repealed by No 93 of 2020)
History
Definition of "Basic grant amount" repealed by No 93 of 2020, s 3 and Sch 1 item 31, effective 28 October 2020. For application provisions, see note under s 30-12. The definition formerly read:
Basic grant amount
has the meaning given in section 33-5.
Bridging course for overseas-trained professionals
has the meaning given by section 104-45.
census date
:
(a)
for a unit of study for a year, means:
(i)
if the student undertaking the unit has not accessed it through *Open Universities Australia - the date determined under subsection 169-25(1); and
(ii)
if the student undertaking the unit has accessed it through Open Universities Australia - the date determined under subsection 104-4(5); and
(aa)
for an *accelerator program course for a period ascertained in accordance with the Administration Guidelines, means the date determined for that period under subsection 169-25(1A); and
(b)
for a *VET unit of study for a year, means the date determined under clause 67 of Schedule 1A.
History
Definition of "census date" amended by No 36 of 2023, s 3 and Sch 1 items 67 and 68, by substituting "subsection 169-25(1)" for "section 169-25" in para (a)(i) and inserting para (aa), effective 29 June 2023.
Definition of "census date" substituted by No 170 of 2007, s 3 and Sch 1 item 22, effective 1 January 2008. The definition formerly read:
Census date
, for a unit of study for a year, means:
(a)
if the student undertaking the unit has not accessed it through *Open Universities Australia - the date determined under section 169-25; and
(b)
if the student undertaking the unit has accessed it through Open Universities Australia - the date determined under subsection 104-4(5).
census day
, for a course or a part of a course, has the same meaning as in the VET Student Loans Act 2016.
History
Definition of "census day" inserted by No 62 of 2020, s 3 and Sch 3 item 3, effective 19 June 2020.
Centrelink
(Repealed by No 32 of 2011)
History
Definition of "Centrelink" repealed by No 32 of 2011, s 3 and Sch 4 item 279, effective 1 July 2011. For transitional provisions see note under s 46-20(2). The definition formerly read:
Centrelink
means the Commonwealth Services Delivery Agency established by the Commonwealth Services Delivery Agency Act 1997.
Definition of "Centrelink" inserted by No 17 of 2010, s 3 and Sch 1 item 6, effective 1 April 2010.
Chief Executive Centrelink
has the same meaning as in the Human Services (Centrelink) Act 1997.
History
Definition of "Chief Executive Centrelink" inserted by No 32 of 2011, s 3 and Sch 4 item 280, effective 1 July 2011. For transitional provisions see note under s 46-20(2).
civil penalty provision
:
(a)
other than in Schedule 1A - has the same meaning as in the Regulatory Powers Act; and
(b)
in Schedule 1A - means each of the following clauses or subclauses of that Schedule:
(i)
subclauses 39DB(1) and (2);
(ii)
subclauses 39DC(1) and (2);
(iii)
clause 39DE;
(iv)
subclause 39DF(1);
(v)
subclause 39DG(1);
(vi)
subclauses 39DH(1) and (2);
(vii)
subclauses 39DI(1) and (2);
(viii)
clauses 39DJ, 39DK and 39DL.
History
Definition of "civil penalty provision" substituted by No 83 of 2017, s 3 and Sch 3 item 40, effective 17 August 2017. The definition formerly read:
civil penalty provision
means each of the following clauses or subclauses of Schedule 1A:
(a)
subclauses 39DB(1) and (2);
(b)
subclauses 39DC(1) and (2);
(c)
clause 39DE;
(d)
subclause 39DF(1);
(e)
subclause 39DG(1);
(f)
subclauses 39DH(1) and (2);
(g)
subclauses 39DI(1) and (2);
(h)
clauses 39DJ, 39DK and 39DL.
Definition of "civil penalty provision" inserted by No 168 of 2015, s 3 and Sch 1 item 30, effective 31 December 2015.
Commissioner
means the Commissioner of Taxation.
Commonwealth contribution amount
means an amount specified in subsection 33-10(1).
History
Definition of "Commonwealth contribution amount" amended by No 93 of 2020, s 3 and Sch 1 item 32, by substituting "subsection 33-10(1)" for "section 33-10", effective 28 October 2020. For application provisions, see note under s 30-12.
Commonwealth officer
has the meaning given by subsection 179-15(2).
Commonwealth scholarship
means a scholarship payable under Part 2-4.
Commonwealth supported student
has the meaning given by section 36-5.
compact and academic freedom requirements
are the requirements set out in Subdivision 19-G.
History
Definition of "compact and academic freedom requirements" inserted by No 104 of 2011, s 3 and Sch 3 item 7, applicable in relation to the year commencing on 1 January 2012 or a later year.
Compliance requirements
are the requirements set out in Subdivision 19-E.
compulsory repayment amount
means an amount that:
(a)
is required to be paid in respect of an *accumulated HELP debt under section 154-1 or 154-16; and
(b)
is included in a notice of an assessment made under section 154-35.
History
Definition of "compulsory repayment amount" amended by No 154 of 2015, s 3 and Sch 1 item 8, by inserting "or 154-16" in para (a), applicable in relation to the 2016-17 income year and later income years.
Consent
includes consent that can reasonably be inferred from the conduct of the person concerned.
contribution and fee requirements
are the requirements set out in Subdivision 19-F.
corrected basic amount
(Repealed by No 104 of 2011)
History
Definition of "corrected basic amount" repealed by No 104 of 2011, s 3 and Sch 1 item 29, applicable in relation to the year commencing on 1 January 2012 or a later year. The definition formerly read:
corrected basic amount
has the meaning given by subsection 33-25(5).
Course of study
means:
(a)
an *enabling course; or
(b)
a single course leading to a *higher education award; or
(c)
a course recognised by the higher education provider at which the course is undertaken as a combined or double course leading to 1 or more *higher education awards; or
Example:
An example of a combined or double course covered by paragraph (c) is a course that leads to the higher education awards of Bachelor of Arts and Bachelor of Laws.
(d)
in Part 3-3 and any other provision of this Act, to the extent that the provision applies, or relates, to *FEE-HELP assistance (and without limiting paragraph (a), (b) or (c) of this definition) - a *microcredential course.
History
Definition of "Course of study" amended by No 64 of 2022, s 3 and Sch 1 item 15, by inserting para (d), effective 30 November 2022.
course of study in aviation
see subsection 128-20(2).
History
Definition of "course of study in aviation" inserted by No 103 of 2019, s 3 and Sch 1 item 3, effective 1 January 2020.
course of study in dentistry
means a *course of study, completion of which would satisfy the minimum academic requirements for registration as a dentist by an authority of a State, a Territory or the Commonwealth, regardless of whether further dentistry study is completed before registration is sought.
History
Definition of "course of study in dentistry" amended by No 38 of 2012, s 3 and Sch 1 items 12 and 13, by inserting "minimum" and ", regardless of whether further dentistry study is completed before registration is sought", applicable for the purposes of working out the FEE-HELP limit in relation to the following persons: (a) a person who is enrolled in a course of study in dentistry or a course of study in veterinary science on 16 April 2012; (b) a person who enrols in a course of study in dentistry or a course of study in veterinary science on or after 16 April 2012.
Definition of "course of study in dentistry" inserted by No 121 of 2006, s 3 and Sch 2 item 7, effective 1 January 2007.
course of study in education
: see section 142-5.
History
Definition of "course of study in education" inserted by No 103 of 2019, s 3 and Sch 2 item 14, effective 1 January 2020.
course of study in medicine
means a *course of study, completion of which would allow provisional registration as a medical practitioner by an authority of a State, a Territory or the Commonwealth.
History
Definition of "course of study in medicine" substituted by No 119 of 2007, s 3 and Sch 5 item 2, effective 1 January 2008. The definition formerly read:
course of study in medicine
has the meaning given by subsection 36-35(4).
course of study in veterinary science
means a *course of study, completion of which would satisfy the minimum academic requirements for registration as a veterinary surgeon or veterinary practitioner by an authority of a State, a Territory or the Commonwealth, regardless of whether further veterinary science study is completed before registration is sought.
History
Definition of "course of study in veterinary science" amended by No 38 of 2012, s 3 and Sch 1 items 14 and 15, by inserting "minimum" and ", regardless of whether further veterinary science study is completed before registration is sought", applicable for the purposes of working out the FEE-HELP limit in relation to the following persons: (a) a person who is enrolled in a course of study in dentistry or a course of study in veterinary science on 16 April 2012; (b) a person who enrols in a course of study in dentistry or a course of study in veterinary science on or after 16 April 2012.
Definition of "course of study in veterinary science" inserted by No 121 of 2006, s 3 and Sch 2 item 8, effective 1 January 2007.
covered
(Repealed by No 104 of 2011)
History
Definition of "covered" repealed by No 104 of 2011, s 3 and Sch 2 item 29, 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. The definition formerly read:
covered
: Division 82 defines whether a unit of study is covered by a person's *Student Learning Entitlement.
covered by a person's Student Learning Entitlement
has the meaning given by subsections 82-1(1) and (2) and 82-5(2).
History
Definition of "covered by a person's Student Learning Entitlement" inserted by No 93 of 2020, s 3 and Sch 4B item 12, effective 1 January 2022.
decision maker
:
(a)
for a *reviewable decision, means the person listed in column 3 of the table in section 206-1, in respect of a decision in column 2 of the table, as the decision maker in respect of that decision; and
(b)
for a *reviewable VET decision, means the person listed in column 3 of the table in clause 91 of Schedule 1A, in respect of a decision in column 2 of the table, as the decision maker in respect of that decision.
History
Definition of "decision maker" substituted by No 170 of 2007, s 3 and Sch 1 item 23, effective 1 January 2008. The definition formerly read:
decision maker
, for a *reviewable decision, means the person listed in column 3 of the table in section 206-1, in respect of a decision in column 2 of the table, as the decision maker in respect of that decision. domestic student means a student who is not an *overseas student.
default
: see section 166-10.
History
Definition of "default" inserted by No 111 of 2019, s 3 and Sch 2 item 31, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
demand driven higher education course
means a *course of study that:
(a)
is undertaken by an *Indigenous person; and
(b)
is leading to a *higher education award that is a bachelor degree or bachelor honours degree; and
(c)
is not a *designated higher education course.
History
Definition of "demand driven higher education course" amended by No 89 of 2023, s 3 and Sch 1 item 1, by substituting para (a), effective 6 November 2023 and applicable in relation to the following: (a) funding agreements entered into under Part 2-2 of that Act in respect of 2024 and later calendar years; (b) grants payable under that Part for 2024 and later calendar years. Para (a) formerly read:
(a)
is undertaken by an *eligible Indigenous person for the course of study with a *Table A provider; and
Definition of "demand driven higher education course" inserted by No 93 of 2020, s 3 and Sch 1 item 33, effective 28 October 2020. For application provisions, see note under s 30-12.
Departmental investigator
means a person appointed under subclause 39GA(1) of Schedule 1A.
History
Definition of "Departmental investigator" inserted by No 168 of 2015, s 3 and Sch 1 item 30, effective 31 December 2015.
dependent child
means a person who is aged under 18 and does not have a spouse or de facto partner (within the meaning of the Acts Interpretation Act 1901).
History
Definition of "dependent child" inserted by No 160 of 2015, s 3 and Sch 1 item 11, applicable in relation to a unit of study that has a census date on or after 1 January 2016.
designated courses of study
(Repealed by No 93 of 2020)
History
Definition of "designated courses of study" repealed by No 93 of 2020, s 3 and Sch 1 item 34, effective 28 October 2020. For application provisions, see note under s 30-12. The definition formerly read:
designated courses of study
has the meaning given by subsection 30-12(1).
Definition of "designated courses of study" inserted by No 104 of 2011, s 3 and Sch 1 item 30, applicable in relation to the year commencing on 1 January 2012 or a later year.
designated higher education course
has the meaning given by subsection 30-12(1).
History
Definition of "designated higher education course" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
EFTSL
has the meaning given by section 169-27.
History
Definition of "EFTSL" amended by No 104 of 2011, s 3 and Sch 2 item 30, by substituting "169-27" for "73-10", 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.
EFTSL value
:
(a)
of a unit of study - has the meaning given by subsection 169-28(1); or
(b)
of an *accelerator program course - has the meaning given by subsection 169-28(3A).
History
Definition of "EFTSL value" substituted by No 36 of 2023, s 3 and Sch 1 item 69, by , effective 29 June 2023. The definition formerly read:
EFTSL value
, of a unit of study, has the meaning given by section 169-28.
Definition of "EFTSL value" amended by No 104 of 2011, s 3 and Sch 2 item 31, by substituting "169-28" for "73-15", 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.
Electronic communication
has the meaning given by the Electronic Transactions Act 1999.
eligible former permanent humanitarian visa holder
means a person who:
(a)
is not a *permanent humanitarian visa holder; and
(b)
was previously a permanent humanitarian visa holder; and
(c)
is the holder of a visa in a class or subclass of visas specified in a determination under subclause (1A).
History
Definition of "eligible former permanent humanitarian visa holder" inserted by No 55 of 2021, s 3 and Sch 1 item 4, effective 1 January 2022.
eligible Indigenous person
(Repealed by No 89 of 2023)
History
Definition of "eligible Indigenous person" repealed by No 89 of 2023, s 3 and Sch 1 item 2, effective 6 November 2023 and applicable in relation to the following: (a) funding agreements entered into under Part 2-2 of that Act in respect of 2024 and later calendar years; (b) grants payable under that Part for 2024 and later calendar years. The definition formerly read:
eligible Indigenous person
: an Indigenous person is an
eligible Indigenous person
for a *course of study with a *Table A provider if, at the time the person first enrols in a course of study with that provider, the person's permanent residential address is in a *regional area or a *remote area.
Definition of "eligible Indigenous person" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
eligible person
has the meaning given by subsection 73-5(4).
History
Definition of "eligible person" inserted by No 93 of 2020, s 3 and Sch 4B item 12, effective 1 January 2022.
Former definition of "eligible person" repealed by No 104 of 2011, s 3 and Sch 2 item 32, 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. The definition formerly read:
eligible person
has the meaning given by subsection 73-5(3).
Eligible scholarship provider
has the meaning given by subsection 46-15(3).
employee
(Repealed by No 32 of 2011)
History
Definition of "employee" repealed by No 32 of 2011, s 3 and Sch 4 item 281, effective 1 July 2011. For transitional provisions see note under s 46-20(2). The definition formerly read:
employee
of Centrelink means an employee within the meaning of the Commonwealth Services Delivery Agency Act 1997.
Definition of "employee" inserted by No 17 of 2010, s 3 and Sch 1 item 7, effective 1 April 2010.
Employer contribution amount
, for a unit of study, is the amount that an employer has contributed, towards the cost of the unit, for a student enrolled in the unit under a *restricted access arrangement for the *course of study of which the unit forms a part.
employer reserved place
means a place, in a *course of study, made available under a *restricted access arrangement for the course.
enabling course
means a course of instruction provided to a person for the purpose of enabling the person to undertake a course leading to a *higher education award, but does not include:
(a)
a course leading to a higher education award; or
(b)
any course that the Minister determines is not an enabling course for the purposes of this Act.
enrolled
:
(a)
a person
enrolled
in a *course of study includes a person undertaking the course of study; and
(aa)
a person
enrolled
in an *accelerator program course includes a person undertaking the accelerator program course; and
(b)
a person
enrolled
in a *VET course of study includes a person undertaking the VET course of study.
History
Definition of "enrolled" amended by No 36 of 2023, s 3 and Sch 1 item 70, by inserting para (aa), effective 29 June 2023.
Definition of "enrolled" substituted by No 170 of 2007, s 3 and Sch 1 item 24, effective 1 January 2008. The definition formerly read:
enrolled
: a person enrolled in a *course of study includes a person undertaking the course of study.
exempt foreign income
has the meaning given by subsection 154-5(4).
Exempt student
has the meaning given by section 169-20.
Fairness requirements
are the requirements set out in Subdivision 19-D.
Federal Register of Legislation
means the Federal Register of Legislation established under the Legislation Act 2003.
History
Definition of "Federal Register of Legislation" inserted by No 126 of 2015, s 3 and Sch 1 item 296, effective 5 March 2016.
Federal Register of Legislative Instruments
(Repealed by No 126 of 2015)
History
Definition of "Federal Register of Legislative Instruments" repealed by No 126 of 2015, s 3 and Sch 1 item 297, effective 5 March 2016. The definition formerly read:
Federal Register of Legislative Instruments
means the Federal Register of Legislative Instruments established under the Legislative Instruments Act 2003.
Definition of "Federal Register of Legislative Instruments" inserted by No 160 of 2012, s 3 and Sch 2 item 17, applicable in relation to decisions to revoke a body's approval as a higher education provider or VET provider made on or after 29 November 2012.
fee
, for a unit of study for a year:
(a)
if the student undertaking the unit has not accessed it through *Open Universities Australia - has the meaning given by section 19-102; and
(b)
if the student undertaking the unit has accessed it through Open Universities Australia - has the meaning given by subsections 104-4(3) and (4).
FEE-HELP assistance
means assistance payable under Part 3-3.
FEE-HELP balance
(Repealed by No 76 of 2018)
History
Definition of "FEE-HELP balance" repealed by No 76 of 2018, s 3 and Sch 3 item 120, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading. The definition formerly read:
FEE-HELP balance
has the meaning given by section 104-15.
FEE-HELP debt
has the meaning given by section 137-10.
FEE-HELP limit
(Repealed by No 76 of 2018)
History
Definition of "FEE-HELP limit" repealed by No 76 of 2018, s 3 and Sch 3 item 120, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading. The definition formerly read:
FEE-HELP limit
has the meaning given by section 104-20.
Financial viability requirements
are the requirements set out in Subdivision 19-B.
first funding cluster
means the *funding cluster referred to in item 1 of the table in section 30-15.
History
Definition of "first funding cluster" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
foreign resident
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
History
Definition of "foreign resident" inserted by No 154 of 2015, s 3 and Sch 1 item 9, applicable in relation to the 2016-17 income year and later income years.
former accumulated HELP debt
has the meaning given by section 140-5.
Funding clusters
has the meaning given by section 30-15.
general interest charge rate
has the same meaning as in section 8AAD of the Taxation Administration Act 1953.
History
Definition of "general interest charge rate" inserted by No 168 of 2015, s 3 and Sch 1 item 22, effective 31 December 2015.
government accreditation authority
(Repealed by No 74 of 2011)
History
Definition of "government accreditation authority" repealed by No 74 of 2011, s 3 and Sch 2 item 26, effective 29 January 2012. The definition formerly read:
government accreditation authority
means:
(a)
the Commonwealth; or
(b)
a State or Territory accreditation agency listed in the *Australian Qualifications Framework Register.
Definition of "government accreditation authority" inserted by No 72 of 2007, s 3 and Sch 1 item 52, effective 31 December 2007.
grandfathered Commonwealth contribution amount
has the meaning given by subsection 33-10(2).
History
Definition of "grandfathered Commonwealth contribution amount" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
grandfathered funding cluster part
means:
(a)
any part of the *first funding cluster other than the Society and Culture part of that cluster; or
(b)
the Social Studies or Behavioural Science subpart of the Society and Culture part of the first funding cluster; or
(c)
any other subpart of the Society and Culture part of the first funding cluster; or
(d)
any part of the *second funding cluster.
History
Definition of "grandfathered funding cluster part" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
grandfathered student
: a person is a
grandfathered student
if:
(a)
any of the following apply in relation to the person:
(i)
the person commenced a *course of study (the
ongoing course
) with a higher education provider before 1 January 2021 but has not completed the ongoing course immediately before that day;
(ia)
the person commenced a course of study (the
ongoing course
) with a higher education provider before 1 January 2021 and, on or after that day, the person completes the ongoing course and commences another course of study (the
honours course
) that relates to the ongoing course and that is leading to a *higher education award that is an honours degree;
(ii)
the person completed a course of study (the
earlier course
) with a higher education provider before 1 January 2021 and, on or after that day, the person commences another course of study (the
honours course
) that relates to the earlier course and that is leading to a higher education award that is an honours degree;
(iii)
the person was undertaking, in 2020, an *enabling course and, on or after 1 January 2021, the person commences another course of study (the
later course
) that is leading to a higher education award;
(iv)
the person was undertaking, in 2020, a course of study (the
UC course
) leading to a higher education award that is an undergraduate certificate and, on or after 1 January 2021, the person commences another course of study (the
higher qualification course
) that relates to the UC course and that is leading to a higher education award that is a bachelor degree; and
(b)
the person was, at any time before 1 January 2021, a *Commonwealth supported student in relation to a unit of study in the ongoing course, earlier course, enabling course or UC course (as the case may be); and
(c)
the person undertakes a unit of study (the
later unit of study
) that has a *census date on or after 1 January 2021; and
(d)
the later unit of study is one of the following:
(i)
part of the ongoing course, honours course, later course or higher qualification course (as the case may be);
(ii)
a *replacement unit in relation to an *affected unit of that course;
(iii)
part of a *replacement course in relation to that course.
Note 1:
An undergraduate certificate is an award conferred by higher education providers under the Australian Qualifications Framework.
Note 2:
For the effect of a restructure of an ongoing course (or of a replacement course in relation to an ongoing course), see subclause (1C).
History
Definition of "grandfathered student" amended by No 3 of 2023, s 3 and Sch 1 items 1 and 2, by inserting para (a)(ia) and substituting "higher education award" for "*higher education award" in para (a)(ii), effective 21 February 2023. For application and transitional provisions, see note under Sch 1 cl 1(1CA).
Definition of "grandfathered student" amended by No 55 of 2021, s 3 and Sch 1 items 28-30, by substituting para (c) and (d) for para (c), "Note 1" for "Note" and inserting note 2, effective 25 June 2021 and applicable in relation to the following: (a) funding agreements entered into under Part 2-2 of that Act in respect of 2021 and later calendar years; (b) grants payable under Part 2-2 of that Act for 2021 and later calendar years; (c) units of study with a census date on or after 1 January 2021. Para (c) formerly read:
(c)
the person undertakes a unit of study as part of the ongoing course, honours course, later course or higher qualification course (as the case may be) that has a *census date that is on or after 1 January 2021.
Definition of "grandfathered student" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
grant year
has the meaninggiven by subsection 30-25(1).
History
Definition of "grant year" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
HECS-HELP assistance
means assistance payable under Part 3-2.
HECS-HELP benefit
(Repealed by No 55 of 2016)
History
Definition of "HECS-HELP benefit" repealed by No 55 of 2016, s 3 and Sch 3 item 15, effective 1 July 2017. For application and saving provision, see note under Div 157 heading. The definition formerly read:
HECS-HELP benefit
means a benefit for an *income year that:
(a)
if a *compulsory repayment amount is required to be paid - has the effect of reducing the amount actually payable for that year; and
(b)
if a compulsory repayment amount is not required to be paid - reduces a person's *accumulated HELP debt for that year.
Definition of "HECS-HELP benefit" inserted by No 43 of 2008, s 3 and Sch 1 item 16, applicable in respect of the 2008-2009 and later income years.
HECS-HELP debt
has the meaning given by section 137-5.
HECS-HELP discount
(Repealed by No 64 of 2022)
History
Definition of "HECS-HELP discount" repealed by No 64 of 2022, s 3 and Sch 4 item 15, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2023. The definition formerly read:
HECS-HELP discount
has the meaning given by subsection 96-2(5).
Definition of "HECS-HELP discount" inserted by No 93 of 2020, s 3 and Sch 4A item 11, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2021.
Former definition of "HECS-HELP discount" repealed by No 169 of 2015, s 3 and Sch 3 item 9, applicable in relation to an up-front payment made in relation to a unit of study that has a census date on or after 1 January 2017. The definition formerly read:
HECS-HELP discount
has the meaning given by subsection 96-5(4).
HELP balance
has the meaning given by section 128-15.
History
Definition of "HELP balance" inserted by No 76 of 2018, s 3 and Sch 3 item 121, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
HELP debt
has the meaning given by section 137-1.
HELP debt indexation factor
has the meaning given by section 140-10.
HELP loan limit
has the meaning given by section 128-20.
History
Definition of "HELP loan limit" inserted by No 76 of 2018, s 3 and Sch 3 item 121, effective 1 January 2020. For application and transitional provisions, see note under Div 97 heading.
HELP program
has the meaning given by subsection 180-28(6).
History
Definition of "HELP program" inserted by No 74 of 2016, s 3 and Sch 2 item 18, effective 24 November 2016. For transitional provisions, see note under s 180-28.
HELP program Commonwealth officer
has the meaning given by subsection 180-28(7).
History
Definition of "HELP program Commonwealth officer" inserted by No 74 of 2016, s 3 and Sch 2 item 18, effective 24 November 2016. For transitional provisions, see note under s 180-28.
HELP Tuition Protection Director
(Repealed by No 101 of 2020)
History
Definition of "HELP Tuition Protection Director" repealed by No 101 of 2020, s 3 and Sch 2 item 67(a), effective 1 January 2021. The definition formerly read:
HELP Tuition Protection Director
means the person referred to in section 167-15.
Definition of "HELP Tuition Protection Director" inserted by No 111 of 2019, s 3 and Sch 2 item 31, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
HELP Tuition Protection Fund
(Repealed by No 101 of 2020)
History
Definition of "HELP Tuition Protection Fund" repealed by No 101 of 2020, s 3 and Sch 2 item 67(b), effective 1 January 2021. The definition formerly read:
HELP Tuition Protection Fund
means the *HELP Tuition Protection Fund established by section 167-1.
Definition of "HELP Tuition Protection Fund" inserted by No 111 of 2019, s 3 and Sch 2 item 31, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
HELP Tuition Protection Fund Advisory Board
(Repealed by No 101 of 2020)
History
Definition of "HELP Tuition Protection Fund Advisory Board" repealed by No 101 of 2020, s 3 and Sch 2 item 67(c), effective 1 January 2021. The definition formerly read:
HELP Tuition Protection Fund Advisory Board
means the HELP Tuition Protection Fund Advisory Board established by section 167-30.
Definition of "HELP Tuition Protection Fund Advisory Board" inserted by No 111 of 2019, s 3 and Sch 2 item 31, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
HELP tuition protection levy
means levy imposed by the Higher Education Support (HELP Tuition Protection Levy) Act 2019.
History
Definition of "HELP tuition protection levy" inserted by No 111 of 2019, s 3 and Sch 2 item 31, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
HESA investigator
means a person appointed under subsection 215-35(1).
History
Definition of "HESA investigator" inserted by No 83 of 2017, s 3 and Sch 3 item 41, effective 17 August 2017.
Higher education award
means:
(a)
a degree, status, title or description of bachelor, master or doctor; or
(b)
an award of graduate diploma or graduate certificate; or
(c)
any other award offered or conferred by a higher education provider under the *Australian Qualifications Framework, except an award offered or conferred for completing a *VET course of study.
History
Definition of "Higher education award" amended by No 103 of 2019, s 3 and Sch 3 item 18, by substituting para (c), effective 28 November 2019. Para (c) formerly read:
(c)
any other award specified as a higher education award under the *Australian Qualifications Framework.
higher education course
means a *course of study other than the following:
(a)
a course of study that is a *designated higher education course;
(b)
a course of study that is a *demand driven higher education course.
History
Definition of "higher education course" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
higher education provider
has the meaning given by section 16-1.
higher education provider charge
means charge imposed by the Higher Education Support (Charges) Act 2019.
History
Definition of "higher education provider charge" inserted by No 86 of 2019, s 3 and Sch 1 item 4, effective 1 January 2020.
Higher Education Support Act information
has the meaning given by section 180-5.
History
Definition of "Higher Education Support Act information" inserted by No 156 of 2012, s 3 and Sch 3 item 9, applicable to information obtained or created before, on or after 18 November 2012.
Higher Education Tuition Protection Director
means the person referred to in section 167-15.
History
Definition of "Higher Education Tuition Protection Director" inserted by No 101 of 2020, s 3 and Sch 2 item 68, effective 1 January 2021.
Higher Education Tuition Protection Fund
means the Fund established by section 167-1.
History
Definition of "Higher Education Tuition Protection Fund" inserted by No 101 of 2020, s 3 and Sch 2 item 68, effective 1 January 2021.
Higher Education Tuition Protection Fund Advisory Board
means the Board established by section 167-30.
History
Definition of "Higher Education Tuition Protection Fund Advisory Board" inserted by No 101 of 2020,s 3 and Sch 2 item 68, effective 1 January 2021.
Income tax
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
Income tax law
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
Income year
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
Indexation factor
has the meaning given by section 198-15.
indexation period
(Repealed by No 55 of 2016)
History
Definition of "indexation period" repealed by No 55 of 2016, s 3 and Sch 2 item 4, effective 1 January 2018. The definition formerly read:
indexation period
has the meaning given by subsection 198-20(7).
Definition of "indexation period" inserted by No 111 of 2010, s 3 and Sch 1 item 5, applicable in respect of the Higher Education Grants Index number published by the Minister in the Gazette for the 2012 year and subsequent years.
index number
:
(a)
for the purposes of Parts 4-1 and 4-2, has the meaning given by clause 2 of this Schedule; and
(b)
for the purposes of Part 5-6, has the meaning given by section 198-20.
History
Definition of "index number" amended by No 76 of 2018, s 3 and Sch 1 item 14, by substituting para (a), effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years. Para (a) formerly read:
(a)
for the purposes of Part 4-1, has the meaning given by section 140-15; and
Indigenous person
has the same meaning as in the Indigenous Education (Targeted Assistance) Act 2000.
History
Definition of "Indigenous person" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
ineligible work experience unit
for a *non-grandfathered student or a *grandfathered student means a unit of study that the student is enrolled in that meets the following conditions:
(a)
the unit wholly consists of *work experience in industry;
(b)
either:
(i)
the student is exempt from paying his or her *student contribution amount in relation to the unit; or
(ii)
the unit does not meet the requirements specified by the Administration Guidelines for the purposes of this subparagraph.
History
Definition of "ineligible work experience unit" inserted by No 93 of 2020, s 3 and Sch 1 item 35, effective 28 October 2020. For application provisions, see note under s 30-12.
judicial officer
means:
(a)
a magistrate; or
(b)
a Judge of a court of a State or Territory; or
(c)
a Judge of the Federal Circuit and Family Court of Australia (Division 2); or
(d)
a Judge of the Federal Court of Australia.
History
Definition of "judicial officer" amended by No 13 of 2021, s 3 and Sch 2 item 458, by substituting para (c), effective 1 September 2021. Para (c) formerly read:
(c)
a Judge of the Federal Circuit Court of Australia; or
Definition of "judicial officer" inserted by No 168 of 2015, s 3 and Sch 1 item 30, effective 31 December 2015.
Information system
has the meaning given by the Electronic Transactions Act 1999.
lifelong SLE
means lifelong SLE that a person has under subsection 73-15(1).
History
Definition of "lifelong SLE" inserted by No 93 of 2020, s 3 and Sch 4B item 12, effective 1 January 2022.
Former definition of "lifelong SLE" repealed by No 104 of 2011, s 3 and Sch 2 item 33, 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. The definition formerly read:
lifelong SLE
, of a person, means the amount of *Student Learning Entitlement that the person has under section 73-22, as reduced (if applicable) under Division 76.
Listed professional occupation
has the meaning given by section 104-60.
Listed provider
has the meaning given by section 16-10.
Listed self-accrediting entity
(Repealed by No 72 of 2007)
History
Definition of "Listed self-accrediting entity" repealed by No 72 of 2007, s 3 and Sch 1 item 53, effective 31 December 2007. The definition formerly read:
Listed self-accrediting entity
means a person who:
(a)
is included; or
(b)
who owns or controls a business name that is included;
in the *Australian Qualifications Framework Register as the name of a higher education institution empowered to issue its own qualifications.
location-preferred HELP debtor (health practitioner)
: see section 144-1.
History
Definition of "location-preferred HELP debtor (health practitioner)" inserted by No 3 of 2023, s 3 and Sch 2 item 37, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
location-preferred HELP debtor (teacher)
: see section 142-1.
History
Definition of "location-preferred HELP debtor (teacher)" inserted by No 3 of 2023, s 3 and Sch 2 item 37, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading.
maximum basic grant amount
has the meaning given by section 30-27.
History
Definition of "maximum basic grant amount" amended by No 93 of 2020, s 3 and Sch 1 item 36, by substituting "section 30-27" for "subsection 30-27(1)", effective 28 October 2020. For application provisions, see note under s 30-12.
Definition of "maximum basic grant amount" inserted by No 104 of 2011, s 3 and Sch 1 item 31, applicable in relation to the year commencing on 1 January 2012 or a later year.
maximum OS-HELP amount
(Repealed by No 112 of 2013)
History
Definition of "maximum OS-HELP amount" repealed by No 112 of 2013, s 3 and Sch 1 item 24, effective 30 June 2013. For application provisions see note under s 121-1. The definition formerly read:
maximum OS-HELP amount
has the meaning given by section 121-5.
maximum OS-HELP (Asian language study) amount
has the meaning given by section 121-15.
History
Definition of "maximum OS-HELP (Asian language study) amount" inserted by No 112 of 2013, s 3 and Sch 1 item 25, effective 30 June 2013. For application provisions see note under s 121-1.
maximum OS-HELP (overseas study) amount
has the meaning given by section 121-5.
History
Definition of "maximum OS-HELP (overseas study) amount" inserted by No 112 of 2013, s 3 and Sch 1 item 25, effective 30 June 2013. For application provisions see note under s 121-1.
maximum student contribution amount for a place
has the meaning given by section 93-10.
History
Definition of "maximum student contribution amount" amended by No 93 of 2020, s 3 and Sch 2 item 8, by substituting "section 93-10" for "subsection 93-10(1)", effective 28 October 2020.
Definition of "maximum student contribution amount" amended by No 119 of 2007, s 3 and Sch 7 item 6, by substituting "subsection 93-10(1)" for "section 93-10", effective 1 January 2008.
Medicare levy
means the Medicare levy imposed by the Medicare Levy Act 1986.
meets the tax file number requirements
has the meanings given by section 187-1 and clause 80 of Schedule 1A.
History
Definition of "meets the tax file number requirements" substituted by No 170 of 2007, s 3 and Sch 1 item 25, effective 1 January 2008. The definition formerly read:
Meets the tax file number requirements
has the meaning given by section 187-1.
microcredential course
means a course of instruction:
(a)
that consists of one or more units of study; and
(b)
that meets the requirements specified in the FEE-HELP Guidelines.
History
Definition of "microcredential course" inserted by No 64 of 2022, s 3 and Sch 1 item 16, effective 30 November 2022.
Military Rehabilitation and Compensation Commission
means the Military Rehabilitation and Compensation Commission established by section 361 of the Military Rehabilitation and Compensation Act 2004.
History
Definition of "Military Rehabilitation and Compensation Commission" inserted by No 17 of 2010, s 3 and Sch 1 item 8, effective 1 April 2010.
Minimum OS-HELP amount
(Repealed by No 112 of 2013)
History
Definition of "Minimum OS-HELP amount" repealed by No 112 of 2013, s 3 and Sch 1 item 26, effective 30 June 2013. For application provisions see note under s 121-1. The definition formerly read:
Minimum OS-HELP amount
means an amount determined under section 121-10.
minimum OS-HELP (Asian language study) amount
, in relation to a higher education provider, means an amount determined by the provider under section 121-20.
History
Definition of "minimum OS-HELP (Asian language study) amount" inserted by No 112 of 2013, s 3 and Sch 1 item 27, effective 30 June 2013. For application provisions see note under s 121-1.
minimum OS-HELP (overseas study) amount
, in relation to a higher education provider, means an amount determined by the provider under section 121-10.
History
Definition of "minimum OS-HELP (overseas study) amount" inserted by No 112 of 2013, s 3 and Sch 1 item 27, effective 30 June 2013. For application provisions see note under s 121-1.
Minimum repayment income
has the meaning given by section 154-10.
National priority
has the meaning given by section 30-20.
National Protocol 1
(Repealed by No 72 of 2007)
History
Definition of "National Protocol 1" inserted by No 72 of 2007, s 3 and Sch 1 item 54, effective 31 December 2007. The definition formerly read:
National Protocol 1
means "Protocol 1 - Criteria and processes for recognition of universities", in the *National Protocols.
National Protocol 3
(Repealed by No 72 of 2007)
History
Definition of "National Protocol 3" repealed by No 72 of 2007, s 3 and Sch 1 item 55, effective 31 December 2007. The definition formerly read:
National Protocol 3
means "Protocol 3 - The accreditation of higher education courses to be offered by non self-accrediting providers", in the *National Protocols.
National Protocols
(Repealed by No 74 of 2011)
History
Definition of "National Protocols" repealed by No 74 of 2011, s 3 and Sch 2 item 27, effective 29 January 2012. The definition formerly read:
National Protocols
means the National Protocols for Higher Education Approval Processes (first endorsed by the Ministerial Council on Employment, Education, Training and Youth Affairs on 31 March 2000), as in force from time to time.
National Register
has the same meaning as in the National Vocational Education and Training Regulator Act 2011.
History
Definition of "National Register" inserted by No 14 of 2011, s 3 and Sch 1 item 49, effective 1 July 2011.
National VET Regulator
has the same meaning as in the National Vocational Education and Training Regulator Act 2011.
History
Definition of "National VET Regulator" inserted by No 14 of 2011, s 3 and Sch 1 item 50, effective 1 July 2011.
non-award basis
: an enrolment in:
(a)
a subject or unit that a person may undertake with a higher education provider as part of a *course of study; or
(b)
a course of instruction with a higher education provider; or
(c)
a tuition and training program with a higher education provider;
is an enrolment on anon-award basis
if the unit, course or program is not being undertaken as part of a course of study.
non-designated courses of study
(Repealed by No 93 of 2020)
History
Definition of "non-designated courses of study" repealed by No 93 of 2020, s 3 and Sch 1 item 37, effective 28 October 2020. For application provisions, see note under s 30-12. The definition formerly read:
non-designated courses of study
means *courses of study other than *designated courses of study.
Definition of "non-designated courses of study" inserted by No 104 of 2011, s 3 and Sch 1 item 32, applicable in relation to the year commencing on 1 January 2012 or a later year.
non-grandfathered student
means a person other than a *grandfathered student.
History
Definition of "non-grandfathered student" inserted by No 93 of 2020, s 3 and Sch 1 item 38, effective 28 October 2020. For application provisions, see note under s 30-12.
non self-accrediting entity
means a body corporate that:
(a)
is a *registered higher education provider; and
(b)
has no authorisation conferred by or under the *TEQSA Act to self-accredit any *course of study that leads to a *higher education award.
History
Definition of "non self-accrediting entity" substituted by No 74 of 2011, s 3 and Sch 2 item 28, effective 29 January 2012. The definition formerly read:
non self-accrediting entity
means a body corporate (other than an *Australian university or a *self-accrediting entity):
(a)
whose name is included; or
(b)
who owns or controls a business name that is included;in the *Australian Qualifications Framework Register as a body authorised to offer *courses of study leading to *higher education awards, but not to accredit any of those courses.
Definition of "non self-accrediting entity" inserted by No 72 of 2007, s 3 and Sch 1 item 56, effective 31 December 2007.
non self-accrediting provider
(Repealed by No 72 of 2007)
History
Definition of "non self-accrediting provider" repealed by No 72 of 2007, s 3 and Sch 1 item 57, effective 31 December 2007. The definition formerly read:
non-self-accrediting provider
has the meaning given by subsection 16-25(4).
NTIS
(Repealed by No 14 of 2011)
History
Definition of "NTIS" repealed by No 14 of 2011, s 3 and Sch 1 item 51, effective 1 July 2011. The definition formerly read:
NTIS
means the National Training Information Service maintained by the Commonwealth in conjunction with the States and Territories.
Definition of "NTIS" inserted by No 170 of 2007, s 3 and Sch 1 item 26, effective 1 January 2008.
number of Commonwealth supported places
means:
(a)
in relation to an allocation of a number of Commonwealth supported places for a *funding cluster or a *grandfathered funding cluster part - the number of places allocated under section 30-10 for that funding cluster or that grandfathered funding cluster part; or
(b)
in relation to the provision of a number of Commonwealth supported places in respect of *non-grandfathered students - the number worked out under subsection 33-30(1); or
(c)
in relation to the provision of a number of Commonwealth supported places in respect of *grandfathered students - the number worked out under subsection 33-30(1A).
History
Definition of "number of Commonwealth supported places" substituted by No 93 of 2020, s 3 and Sch 1 item 39, effective 28 October 2020. For application provisions, see note under s 30-12. The definition formerly read:
Number of Commonwealth supported places
means:
(a)
in relation to an allocation of a number of Commonwealth supported places under section 30-10 in relation to a *funding cluster-the number allocated under that section in relation to that funding cluster; or
(b)
in relation to the provision of a number of Commonwealth supported places-the number worked out under section 33-30.
means:
(a)
in relation to an allocation of a number of Commonwealth supported places under section 30-10 in relation to a *funding cluster-the number allocated under that section in relation to that funding cluster; or
(b)
in relation to the provision of a number of Commonwealth supported places-the number worked out under section 33-30.
NVETR Commissioner
(Repealed by No 77 of 2020)
History
Definition of "NVETR Commissioner" repealed by No 77 of 2020, s 3 and Sch 1 item 66, effective 1 January 2021. The definition formerly read:
NVETR Commissioner
means:
(a)
the Chief Commissioner; or
(b)
a Commissioner;
within the meaning of the National Vocational Education and Training Regulator Act 2011.
Definition of "NVETR Commissioner" inserted by No 168 of 2015, s 3 and Sch 1 item 30, effective 31 December 2015.
NVETR investigator
means a person appointed under subclause 39GA(2) of Schedule 1A.
History
Definition of "NVETR investigator" inserted by No 168 of 2015, s 3 and Sch 1 item 30, effective 31 December 2015.
NVETR staff member
means a member of the staff of the Regulator (within the meaning of the National Vocational Education and Training Regulator Act 2011).
History
Definition of "NVETR staff member" inserted by No 168 of 2015, s 3 and Sch 1 item 30, effective 31 December 2015.
Occupation
includes the meaning given by section 104-65.
offering
(Repealed by No 74 of 2011)
History
Definition of "offering" repealed by No 74 of 2011, s 3 and Sch 2 item 29, effective 29 January 2012. The definition formerly read:
offering
, in relation to an external Territory, has the meaning given by subsection 228-15(2).
Definition of "offering" substituted by No 72 of 2007, s 3 and Sch 1 item 58, effective 31 December 2007. The definition formerly read:
Offering
has the meaning given by subsection 228-15(2).
Officer
has the meaning given by subsection 179-15(1).
Officer of a higher education provider
has the meaning given by subsection 179-15(3).
officer of a registered higher education provider
has the meaning given by subsection 179-15(3AA).
History
Definition of "officer of a registered higher education provider" inserted by No 101 of 2020, s 3 and Sch 2 item 80, effective 1 January 2021.
officer of a Tertiary Admission Centre
has the meaning given by subsection 179-15(3B).
History
Definition of "officer of a Tertiary Admission Centre" inserted by No 121 of 2009, s 3 and Sch 2 item 16, effective 7 December 2009.
officer of a VET provider
has the meaning given by subclause 74(3) of Schedule 1A.
History
Definition of "officer of a VET provider" inserted by No 170 of 2007, s 3 and Sch 1 item 27, effective 1 January 2008.
Officer of Open Universities Australia
has the meaning given by subsection 179-15(3A).
official employment
has the meanings given by subsection 179-15(4) and subclause 74(3) of Schedule 1A.
History
Definition of "official employment" substituted by No 170 of 2007, s 3 and Sch 1 item 28, effective 1 January 2008. The definition formerly read:
official employment
has the meaning given by subsection 179-15(4).
Open Universities Australia
means Open Universities Australia Pty Ltd (ACN 053 431 888).
operating
(Repealed by No 74 of 2011)
History
Definition of "operating" repealed by No 74 of 2011, s 3 and Sch 2 item 30, effective 29 January 2012. The definition formerly read:
operating
, in relation to an external Territory, has the meaning given by subsections 228-15(1A) and (1).
Definition of "operating" substituted by No 72 of 2007, s 3 and Sch 1 item 59, effective 31 December 2007. The definition formerly read:
Operating
has the meaning given by subsection 228-15(1).
ordinary SLE
means ordinary SLE that a person has under subsection 73-5(1) or (2).
History
Definition of "ordinary SLE" inserted by No 93 of 2020, s 3 and Sch 4B item 12, effective 1 January 2022.
Former definition of "ordinary SLE" repealed by No 104 of 2011, s 3 and Sch 2 item 34, 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. The definition formerly read:
ordinary SLE
of a person means the amount of *Student Learning Entitlement that the person has under section 73-5, as reduced (if applicable) under Division 76.
original course
means a *course of study in relation to which a higher education provider has *defaulted.
History
Definition of "original course" inserted by No 111 of 2019, s 3 and Sch 2 item 31, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
OS-HELP assistance
means assistance payable under Part 3-4.
OS-HELP debt
has the meaning given by section 137-15.
Overseas student
means a person who:
(a)
is not an Australian citizen; and
(b)
is enrolled, or proposes to become enrolled, in:
(i)
a *course of study with a higher education provider; or
(ii)
a unit of study access to which was provided by *Open Universities Australia; but does not include:
(c)
a person entitled to stay in Australia, or to enter and stay in Australia, without any limitation as to time; or
(d)
a New Zealand citizen; or
(e)
a diplomatic or consular representative of New Zealand, a member of the staff of such a representative or the spouse, de facto partner (within the meaning of the Acts Interpretation Act 1901) or dependent relative of such a representative.
Note:
In relation to paragraph (e) of the definition of
Overseas student
, see also subclause (2).
History
Definition of "Overseas student" amended by No 144 of 2008, s 3 and Sch 5 items 7 and 8, by inserting ", de facto partner (within the meaning of the Acts Interpretation Act 1901)" after "spouse" in para (e) and inserting the note at the end, effective 10 December 2008.
Pacific engagement visa holder
means the holder of:
(a)
a visa referred to in the regulations made under the Migration Act 1958 as a Subclass 192 (Pacific Engagement) visa; or
(b)
a visa of a kind determined under subclause (4).
History
Definition of "Pacific engagement visa holder" inserted by No 100 of 2023, s 3 and Sch 1 item 10, effective 29 March 2024.
Paris Agreement
means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time.
Note:
The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
History
Definition of "Paris Agreement" inserted by No 5 of 2023, s 3 and Sch 1 item 11, effective 15 March 2023.
permanent humanitarian visa holder
means the holder of a visa that is, or has at any time been, defined as a permanent humanitarian visa for the purposes of the regulations made under the Migration Act 1958.
Permanent visa holder
means the holder of a permanent visa within the meaning of subsection 30(1) of the Migration Act 1958.
Personal information
has the meaning given by section 179-5.
Postgraduate course of study
means a *course of study that:
(a)
leads to one or more of the following *higher education awards:
(i)
a graduate diploma;
(ii)
a graduate certificate;
(iii)
a master's degree;
(iv)
a doctoral degree; and
(b)
does not lead to any other higher education award.
pre-1 July 2019 VSL debt
has the meaning given by subsection 137-19(1).
History
Definition of "pre-1 July 2019 VSL debt" inserted by No 116 of 2018, s 3 and Sch 1 item 11, effective 1 July 2019.
provider obligation period
: see subsection 166-25(2).
History
Definition of "provider obligation period" inserted by No 101 of 2020, s 3 and Sch 2 item 103, applicable in relation to provider defaults that occur on or after 1 January 2021.
qualified auditor
means:
(a)
a registered company auditor (within the meaning of the Corporations Act 2001); or
(b)
(Repealed by No 83 of 2017)
(c)
(Repealed by No 83 of 2017)
(d)
a person approved by the Minister in writing as a qualified auditor for the purposes of this Act.
History
Definition of "qualified auditor" amended by No 83 of 2017, s 3 and Sch 3 item 42, by substituting para (a) for para (a) to (c), effective 17 August 2017 and applicable in relation to financial statements provided for annual financial reporting periods that commence on or after 1 July 2018. Para (a) to (c) formerly read:
(a)
the Auditor-General of a State, of the Australian Capital Territory or of the Northern Territory; or
(b)
a person registered as a company auditor or a public accountant under a law in force in a State, the Australian Capital Territory or the Northern Territory; or
(c)
a member of the Institute of Chartered Accountants in Australia, or of the Australian Society of Certified Practising Accountants; or
qualifying VET course
means a structured and integrated program of vocational education or vocational training, usually consisting of a number of modules (units of study) or shorter programs, and leading to the award of a *VET diploma, *VET advanced diploma, *VET graduate diploma or *VET graduate certificate.
History
Definition of "qualifying VET course" inserted by No 168 of 2015, s 3 and Sch 1 item 22, effective 31 December 2015.
quality and accountability requirements
has the meaning given by section 19-1.
quality auditing body
(Repealed by No 74 of 2011)
History
Definition of "quality auditing body" repealed by No 74 of 2011, s 3 and Sch 2 item 31, effective 29 January 2012. The definition formerly read:
quality auditing body
, for a higher education provider, means a body listed in the Higher Education Provider Guidelines as a quality auditing body for providers of that kind.
Definition of "quality auditing body" substituted by No 89 of 2008, s 3 and Sch 1 item 9, effective 20 September 2008. The definition formerly read:
Quality auditing body
means a body listed in the Higher Education Provider Guidelines as such a body.
quality requirements
are the requirements set out in Subdivision 19-C.
quarter
means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.
reference period
(Repealed by No 76 of 2018)
History
Definition of "reference period" repealed by No 76 of 2018, s 3 and Sch 1 item 15, effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years. The definition formerly read:
reference period
has the meaning given by subsection 154-25(3)
regional area
(Repealed by No 89 of 2023)
History
Definition of "regional area" repealed by No 89 of 2023, s 3 and Sch 1 item 3, effective 6 November 2023 and applicable in relation to the following: (a) funding agreements entered into under Part 2-2 of that Act in respect of 2024 and later calendar years; (b) grants payable under that Part for 2024 and later calendar years. The definition formerly read:
regional area
means an area that is classified as inner regional Australia, or outer regional Australia, under the *ABS Remoteness Structure.
Definition of "regional area" inserted by No 93 of 2020, s 3 and Sch 1 item 40, effective 28 October 2020. For application provisions, see note under s 30-12.
registered higher education provider
has the same meaning as in the *TEQSA Act.
History
Definition of "registered higher education provider" inserted by No 74 of 2011, s 3 and Sch 2 item 32, effective 29 January 2012.
registered training organisation
has the same meaning as in the National Vocational Education and Training Regulator Act 2011.
History
Definition of "registered training organisation" inserted by No 14 of 2011, s 3 and Sch 1 item 52, effective 1 July 2011.
Regulatory Powers Act
means the Regulatory Powers (Standard Provisions) Act 2014.
History
Definition of "Regulatory Powers Act" inserted by No 168 of 2015, s 3 and Sch 1 item 30, effective 31 December 2015.
Related body corporate
has the meaning given by section 9 of the Corporations Act 2001.
remote area
(Repealed by No 89 of 2023)
History
Definition of "remote area" repealed by No 89 of 2023, s 3 and Sch 1 item 4, effective 6 November 2023 and applicable in relation to the following: (a) funding agreements entered into under Part 2-2 of that Act in respect of 2024 and later calendar years; (b) grants payable under that Part for 2024 and later calendar years. The definition formerly read:
remote area
means an area that is classified as remote Australia, or very remote Australia, under the *ABS Remoteness Structure.
Definition of "remote area" inserted by No 93 of 2020, s 3 and Sch 1 item 40, effective 28 October 2020. For application provisions, see note under s 30-12.
Rental property loss
(Repealed by No 27 of 2009)
History
Definition of "rental property loss" repealed by No 27 of 2009, s 3 and Sch 3 item 39, applicable in relation to income years starting on or after 1 July 2009. The definition formerly read:
Rental property loss
has the meaning given by subsection 154-5(2).
Repatriation Commission
means the body corporate continued in existence by section 179 of the Veterans' Entitlements Act 1986.
History
Definition of "Repatriation Commission" inserted by No 17 of 2010, s 3 and Sch 1 item 9, effective 1 April 2010.
Repayable debt
, for an *income year, has the meaning given by section 154-15.
Repayment income
has the meaning given by section 154-5.
replacement course
means a *course of study that enables a student to finish:
(a)
an *original course; or
(b)
a course that is equivalent to an *original course.
History
Definition of "replacement course" inserted by No 111 of 2019, s 3 and Sch 2 item 31, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
replacement unit
means a unit of study that replaces an *affected unit of an *original course.
History
Definition of "replacement unit" amended by No 101 of 2020, s 3 and Sch 2 item 104, by omitting "of a *replacement course" after "unit of study", applicable in relation to provider defaults that occur on or after 1 January 2021.
Definition of "replacement unit" inserted by No 111 of 2019, s 3 and Sch 2 item 31, effective 1 January 2020. For application and transitional provisions, see note under s 16-25.
request for Commonwealth assistance
:
(a)
in relation to a person enrolling in a unit of study with a higher education provider (where access to the unit is not provided by *Open Universities Australia) - has the meaning given by subsection 36-40(3); and
(b)
in relation to a person to whom access to a unit of study is provided by Open Universities Australia-has the meaning given by subsection 193-1(2C); and
(ba)
in relation to a *student services and amenities fee imposed on a person enrolled with a higher education provider in a *course of study or *bridging course for overseas-trained professionals, or an *accelerator program course - has the meaning given by subsection 126-1(2); and
(bb)
in relation to a person enrolling in an accelerator program course - has the meaning given by subsection 128B-1(6); and
(c)
in relation to a person enrolling in a *VET unit of study has the meaning given by subclause 88(3) of Schedule 1A.
History
Definition of "request for Commonwealth assistance" amended by No 36 of 2023, s 3 and Sch 1 items 71 and 72, by inserting ", or an *accelerator program course" in para (ba) and inserting para (bb), effective 29 June 2023.
Definition of "request for Commonwealth assistance" amended by No 130 of 2011, s 3 and Sch 1 item 40, by inserting para (ba), effective 1 January 2012.
Definition of "request for Commonwealth assistance" amended by No 170 of 2007, s 3 and Sch 1 item 29, by inserting para (c), effective 1 January 2008.
requirements for entry
, to a *listed professional occupation, has the meaning given by section 104-70.
responsible parent
has the same meaning as in the Australian Citizenship Act 2007.
History
Definition of "responsible parent" inserted by No 168 of 2015, s 3 and Sch 1 item 22, effective 31 December 2015.
Restricted access arrangement
, for a *course of study, means an arrangement:
(a)
that was entered into between the higher education provider providing the course and an employer or industry body; and
(b)
that limits or restricts enrolments in some or all of the places in the course.
return
means an income tax return within the meaning of subsection 995-1(1) of the Income Tax Assessment Act 1997.
reversed
: see the following provisions for when an amount of *STARTUP-HELP assistance that a person received for an *accelerator program course with a higher education provider is
reversed
:
(a)
subsection 128E-1(2) (special circumstances);
(b)
section 128E-20 (no tax file number);
(c)
section 128E-25 (provider completes request for assistance);
(d)
section 128E-30 (no entitlement);
(e)
section 128E-35 (no assessment of whether academically suited);
(f)
section 128-40 (provider non-compliance).
History
Definition of "reversed" inserted by No 36 of 2023, s 3 and Sch 1 item 73, effective 29 June 2023.
Reviewable decision
means a decision listed in the table in section 206-1.
reviewable VET decision
means a decision listed in the table in clause 91 of Schedule 1A.
History
Definition of "reviewable VET decision" inserted by No 170 of 2007, s 3 and Sch 1 item 30, effective 1 January 2008.
reviewer
has the meanings given by section 209-1 and clause 94 of Schedule 1A.
History
Definition of "reviewer" substituted by No 170 of 2007, s 3 and Sch 1 item 31, effective 1 January 2008. The definition formerly read:
Reviewer
has the meaning given by section 209-1.
Review officer
:
(a)
of a higher education provider - has the meaning given by subsection 19-50(2); and
(b)
of *Open Universities Australia - has the meaning given by subsection 238-1(2B).; and
(c)
of a *VET provider - has the meaning given by subclause 21(2) of Schedule 1A.
History
Definition of "Review officer" amended by No 170 of 2007, s 3 and Sch 1 item 32, by inserting para (c), effective 1 January 2008.
SA-HELP assistance
means assistance payable under Part 3-5.
History
Definition of "SA-HELP assistance" inserted by No 130 of 2011, s 3 and Sch 1 item 41, effective 1 January 2012.
SA-HELP debt
has the meaning given by section 137-16.
History
Definition of "SA-HELP debt" inserted by No 130 of 2011, s 3 and Sch 1 item 42, effective 1 January 2012.
second funding cluster
means the *funding cluster referred to in item 2 of the table in section 30-15.
History
Definition of "second funding cluster" inserted by No 93 of 2020, s 3 and Sch 1 item 40, effective 28 October 2020. For application provisions, see note under s 30-12.
Secretary
means the Secretary of the Department.
self-accrediting entity
means a body corporate that:
(a)
is a *registered higher education provider; and
(b)
is authorised by or under the *TEQSA Act to self-accredit one or more *courses of study that lead to a *higher education award.
History
Definition "self-accrediting entity" substituted by No 74 of 2011, s 3 and Sch 2 item 33, effective 29 January 2012. The definition formerly read:
self-accrediting entity
means a body corporate (other than an *Australian university):
(a)
whose name is included; or
(b)
who owns or controls a business name that is included;in the *Australian Qualifications Framework Register as a body authorised to accredit *courses of study leading to *higher education awards.
Definition of "self-accrediting entity" inserted by No 72 of 2007, s 3 and Sch 1 item 60, effective 31 December 2007.
self-accrediting provider
(Repealed by No 72 of 2007)
History
Definition of "self-accrediting provider" repealed by No 72 of 2007, s 3 and Sch 1 item 61, effective 31 December 2007. The definition formerly read:
self-accrediting provider
has the meaning given by subsection 16-25(3).
SLE
(Repealed by No 104 of 2011)
History
Definition of "SLE" repealed by No 104 of 2011, s 3 and Sch 2 item 35, 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. The definition formerly read:
SLE
means *Student Learning Entitlement.
SLE amount
has the meaning given by subsection 73-1(2).
History
Definition of "SLE amount" inserted by No 93 of 2020, s 3 and Sch 4B item 12, effective 1 January 2022.
STARTUP-HELP assistance
means assistance payable under Part 3-7.
History
Definition of "STARTUP-HELP assistance" inserted by No 36 of 2023, s 3 and Sch 1 item 73A, effective 29 June 2023.
STARTUP-HELP debt
has the meaning given by section 137-17.
History
Definition of "STARTUP-HELP debt" inserted by No 36 of 2023, s 3 and Sch 1 item 73A, effective 29 June 2023.
State or Territory VET regulator
means an agency or authority of a State or Territory responsible for regulating vocational education or vocational training in the State or Territory.
History
Definition of "State or Territory VET regulator" inserted by No 168 of 2015, s 3 and Sch 1 item 22, effective 31 December 2015.
student
means:
(a)
a person who is enrolled in a *course of study with a higher education provider, and includes a person who is enrolled in a unit of study access to which was provided by *Open Universities Australia; or
(aa)
a person who is enrolled in an *accelerator program course; or
(b)
a person who is enrolled in a *VET course of study with a *VET provider.
History
Definition of "student" amended by No 36 of 2023, s 3 and Sch 1 item 74, by inserting para (aa), effective 29 June 2023.
Definition of "student" substituted by No 170 of 2007, s 3 and Sch 1 item 33, effective 1 January 2008. The definition formerly read:
student
means a person who is enrolled in a *course of study with a higher education provider, and includes a person who is enrolled in a unit of study access to which was provided by *Open Universities Australia.
student cohort
(Repealed by No 121 of 2006)
History
Definition of "student cohort" repealed by No 121 of 2006, s 3 and Sch 3 item 10, effective 4 November 2006. The definition formerly read:
student cohort
has the meaning given by section 19-101.
Student contribution amount
has the meaning given by section 93-5.
Student contribution amount for a place
has the meaning given by subsection 93-5(1).
student entry procedure
has the meaning given by subclause 23B(3) of Schedule 1A.
History
Definition of "student entry procedure" inserted by No 168 of 2015, s 3 and Sch 1 item 22, effective 31 December 2015.
student identifier
has the same meaning as in the Student Identifiers Act 2014.
History
Definition of "student identifier" inserted by No 62 of 2020, s 3 and Sch 1 item 5, effective 1 January 2021. For application provisions, see note under s 36-10(1).
Student Learning Entitlement
has the meaning given by subsection 73-1(1).
History
Definition of "Student Learning Entitlement" inserted by No 93 of 2020, s 3 and Sch 4B item 12, effective 1 January 2022.
Former definition of "Student Learning Entitlement" repealed by No 104 of 2011, s 3 and Sch 2 item 36, 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. The definition formerly read:
Student Learning Entitlement
has the meaning given by section 73-1.
student services and amenities fee
has the meaning given by subsection 19-37(5).
History
Definition of "student services and amenities fee" inserted by No 130 of 2011, s 3 and Sch 1 item 43, effective 1 January 2012.
subject to review
: a decision (however described) is subject to review until:
(a)
any applicable time limits for applying for a review (however described) or lodging an appeal (however described) of or in relation to the decision have expired; and
(b)
if there is such a review or appeal of or in relation to the decision - the review or appeal (and any later reviews or appeals) have been finally disposed of.
History
Definition of "subject to review" inserted by No 23 of 2013, s 3 and Sch 1 item 7, applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013.
supplementary amount for Asian language study
means a supplementary amount of *OS-HELP assistance included under paragraph 121-1(1)(b).
History
Definition of "supplementary amount for Asian language study" inserted by No 112 of 2013, s 3 and Sch 1 item 28, effective 30 June 2013. For application provisions see note under s 121-1.
Table A provider
means a body listed in Table A in section 16-15.
Table B provider
means a body listed in Table B in section 16-20.
Table C provider
means a body listed in Table C in section 16-22.
Taxable income
has the meaning given by section 4-15 of the Income Tax Assessment Act 1997.
Tax file number
: a person's tax file number is a number that the *Commissioner has issued to the person and that is either:
(a)
a number issued under Part VA of the Income Tax Assessment Act 1936; or
(b)
a number issued to a person under section 44 or 48 of the Higher Education Funding Act 1988; or
(c)
a number that the Commissioner notified to the person as the person's income tax file number.
TEQSA
(short for Tertiary Education Quality and Standards Agency) means the body established by section 132 of the *TEQSA Act.
History
Definition of "TEQSA" inserted by No 74 of 2011, s 3 and Sch 2 item 34, effective 29 January 2012.
TEQSA Act
means the Tertiary Education Quality and Standards Agency Act 2011.
History
Definition of "TEQSA Act" inserted by No 74 of 2011, s 3 and Sch 2 item 35, effective 29 January 2012.
TEQSA investigator
means a person appointed under subsection 215-35(2).
History
Definition of "TEQSA investigator" inserted by No 83 of 2017, s 3 and Sch 3 item 43, effective 17 August 2017.
Tertiary Admission Centre
means a person, body or organisation that provides services in relation to student admissions and enrolments on behalf of:
(a)
higher education providers; or
(b)
*VET providers; or
(c)
both higher education providers and VET providers.
Definition of "Tertiary Admission Centre" inserted by No 121 of 2009, s3 and Sch 2 item 17, effective 7 December 2009.
total basic grant amount
has the meaning given by section 33-5
History
Definition of "total basic grant amount" inserted by No 93 of 2020, s 3 and Sch 1 item 40, effective 28 October 2020. For application provisions, see note under s 30-12.
tuition assurance requirements
(Repealed by No 111 of 2019)
History
Definition of "tuition assurance requirements" repealed by No 111 of 2019, s 3 and Sch 1 item 32, effective 1 January 2020. The definition formerly read:
tuition assurance requirements
means the requirements set out in section 16-30.
Tuition fee
:
(a)
in relation to a unit of study access to which is not provided by *Open Universities Australia - has the meaning given by section 19-105; and
(b)
in relation to a unit of study access to which is provided by Open Universities Australia - means:
(i)
if only one fee has been determined for the unit under subsection 104-4(2) - that fee; or
(ii)
if more than one fee has been determined for the unit under that subsection - the fee determined under that subsection that applies to the person.
History
Definition of "Tuition fee" amended by No 121 of 2006, s 3 and Sch 3 item 11, by substituting para (b), effective 4 November 2006. Para (b) formerly read:
(b)
in relation to a unit of study access to which is provided by Open Universities Australia - means a fee determined under subsection 104-4(2).
tuition protection requirements
has the meaning given by section 16-30.
History
Definition of "tuition protection requirements" inserted by No 111 of 2019, s 3 and Sch 2 item 33, effective 1 January 2020.
Undergraduate course of study
means a *course of study that is neither an *enabling course nor a *postgraduate course of study.
unit of study
means:
(a)
a subject or unit that a person may undertake with a higher education provider as part of a *course of study; or
(b)
a subject or unit made available by a higher education provider:
(i)
access to which was provided by *Open Universities Australia; and
(ii)
that a person could undertake as part of a course of study leading to a *higher education award; or
(c)
a part of a *bridging course for overseas-trained professionals.
If a higher education provider provides the same such subject or unit in respect of more than one period, the subject or unit is taken to be a different unit of study in respect of each period.
university
(Repealed by No 72 of 2007)
History
Definition of "university" repealed by No 72 of 2007, s 3 and Sch 1 item 62, effective 31 December 2007. The definition formerly read:
university
has the meaning given by subsection 16-25(2).
up-front payment
:
(a)
in relation to a unit of study, has the meaning given by section 93-15 or 107-5; or
(b)
in relation to an *accelerator program course, has the meaning given by section 128C-5.
History
Definition of "up-front payment" substituted by No 36 of 2023, s 3 and Sch 1 item 76, effective 29 June 2023. The definition formerly read:
up-front payment
, in relation to a unit of study, has the meaning given by section 93-15 or 107-5.
Up-front Payments Guidelines
means the guidelines made under section 26B of the *TEQSA Act.
History
Definition of "Up-front Payments Guidelines" inserted by No 101 of 2020, s 3 and Sch 2 item 68, effective 1 January 2021.
up-front payments tuition protection levy
means levy imposed by the Higher Education (Up-front Payments Tuition Protection Levy) Act 2020.
History
Definition of "up-front payments tuition protection levy" inserted by No 101 of 2020, s 3 and Sch 2 item 68, effective 1 January 2021.
up-front VET payment
has the meaning given by subclause 53(1) of Schedule 1A.
History
Definition of "up-front VET payment" inserted by No 170 of 2007, s 3 and Sch 1 item 34, effective 1 January 2008.
very remote HELP debtor
(Repealed by No 3 of 2023)
History
Definition of "very remote HELP debtor" repealed by No 3 of 2023, s 3 and Sch 2 item 38, effective 21 February 2023. For application, saving and transitional provisions, see note under Div 144 heading. The definition formerly read:
very remote HELP debtor
: see section 142-1.
Definition of "very remote HELP debtor" inserted by No 103 of 2019, s 3 and Sch 2 item 14, effective 1 January 2020.
VET Administration Guidelines
(Repealed by No 160 of 2012)
History
Definition of "VET Administration Guidelines" repealed by No 160 of 2012, s 3 and Sch 3 item 45, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013. The definition formerly read:
VET Administration Guidelines
means the VET Administration Guidelines made under clause 99 of Schedule 1A.
Definition of "VET Administration Guidelines" inserted by No 170 of 2007, s 3 and Sch 1 item 35, effective 1 January 2008.
VET advanced diploma
means a qualification:
(a)
at the level of advanced diploma in the Australian Qualifications Framework; and
(b)
that meets the guidelines for a VET award as set out in the Australian Qualifications Framework.
History
Definition of "VET advanced diploma" amended by No 23 of 2013, s 3 and Sch 5 item 5, by substituting "Australian Qualifications Framework" for "Australian Qualifications Framework Implementation Handbook" in para (b), effective 29 March 2013. No 23 of 2013, s 3 and Sch 5 item 10 contains the following transitional provision:
10 Transitional provision - VET definitions
To avoid doubt, a reference in the Higher Education Support Act 2003 to the Australian Qualifications Framework Implementation Handbook is taken, from the day the Australian Qualifications Framework took effect, to have always included a reference to the Australian Qualifications Framework.
Definition of "VET advanced diploma" inserted by No 170 of 2007, s 3 and Sch 1 item 36, effective 1 January 2008.
VET compliance requirements
means the requirements set out in Subdivision 4-E of Schedule 1A.
History
Definition of "VET compliance requirements" inserted by No 170 of 2007, s 3 and Sch 1 item 37, effective 1 January 2008.
VET course of study
means a structured and integrated program of vocational education or vocational training, usually consisting of a number of modules (units of study) or shorter programs, and leading to the award of a *VET qualification.
History
Definition of "VET course of study" amended by No 160 of 2012, s 3 and Sch 1 item 31, by substituting "of a *VET qualification" for "of a *VET diploma, a *VET advanced diploma, a *VET graduate diploma or a *VET graduate certificate", applicable in relation to a VET unit of study commenced by a student on or after 1 January 2013.
Definition of "VET course of study" inserted by No 170 of 2007, s 3 and Sch 1 item 38, effective 1 January 2008.
VET credit transfer arrangement
means an arrangement for crediting a *VET unit of study or *VET course of study toward a *higher education award.
History
Definition of "VET credit transfer arrangement" inserted by No 11 of 2008, s 3 and Sch 1 item 9, effective 20 March 2008.
VET diploma
means a qualification:
(a)
at the level of diploma in the Australian Qualifications Framework; and
(b)
that meets the guidelines for a VET award as set out in the Australian Qualifications Framework.
History
Definition of "VET diploma" amended by No 23 of 2013, s 3 and Sch 5 item 6, by substituting "Australian Qualifications Framework" for "Australian Qualifications Framework Implementation Handbook" in para (b), effective 29 March 2013. For transitional provision see note under definition of "VET advanced diploma" of this Schedule.
Definition of "VET diploma" inserted by No 170 of 2007, s 3 and Sch 1 item 39, effective 1 January 2008.
VET fairness requirements
means the requirements set out in Subdivision 4-D of Schedule 1A.
History
Definition of "VET fairness requirements" inserted by No 170 of 2007, s 3 and Sch 1 item 40, effective 1 January 2008.
VET FEE-HELP account
has the meaning given by clause 45D of Schedule 1A.
History
Definition of "VET FEE-HELP account" inserted by No 168 of 2015, s 3 and Sch 1 item 22, effective 31 December 2015.
VET FEE-HELP assistance
means assistance payable under Part 2 of Schedule 1A.
History
Definition of "VET FEE-HELP assistance" inserted by No 170 of 2007, s 3 and Sch 1 item 41, effective 1 January 2008.
VET FEE-HELP debt
has the meaning given by subsection 137-18(1).
History
Definition of "VET FEE-HELP debt" inserted by No 170 of 2007, s 3 and Sch 1 item 42, effective 1 January 2008.
VET FEE-HELP Guidelines
(Repealed by No 160 of 2012)
History
Definition of "VET FEE-HELP Guidelines" repealed by No 160 of 2012, s 3 and Sch 3 item 46, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013. The definition formerly read:
VET FEE-HELP Guidelines
means the VET FEE-HELP Guidelines made under clause 99 of Schedule 1A.
Definition of "VET FEE-HELP Guidelines" inserted by No 170 of 2007, s 3 and Sch 1 item 43, effective 1 January 2008.
VET fee requirements
means the requirements set out in Subdivision 4-F of Schedule 1A.
History
Definition of "VET fee requirements" inserted by No 170 of 2007, s 3 and Sch 1 item 44, effective 1 January 2008.
VET financial viability requirements
means the requirements set out in Subdivision 4-B of Schedule 1A.
History
Definition of "VET financial viability requirements" inserted by No 170 of 2007, s 3 and Sch 1 item 45, effective 1 January 2008.
VET graduate certificate
means a qualification:
(a)
at the level of graduate certificate in the Australian Qualifications Framework; and
(b)
that meets the guidelines for a VET award as set out in the Australian Qualifications Framework.
History
Definition of "VET graduate certificate" amended by No 23 of 2013, s 3 and Sch 5 item 7, by substituting "Australian Qualifications Framework" for "Australian Qualifications Framework Implementation Handbook" in para (b), effective 29 March 2013. For transitional provision see note under definition of "VET advanced diploma" of this Schedule.
Definition of "VET graduate certificate" inserted by No 170 of 2007, s 3 and Sch 1 item 45A, effective 1 January 2008.
VET graduate diploma
means a qualification:
(a)
at the level of graduate diploma in the Australian Qualifications Framework; and
(b)
that meets the guidelines for a VET award as set out in the Australian Qualifications Framework.
History
Definition of "VET graduate diploma" amended by No 23 of 2013, s 3 and Sch 5 item 8, by substituting "Australian Qualifications Framework" for "Australian Qualifications Framework Implementation Handbook" in para (b), effective 29 March 2013. For transitional provision see note under definition of "VET advanced diploma" of this Schedule.
Definition of "VET graduate diploma" inserted by No 170 of 2007, s 3 and Sch 1 item 45B, effective 1 January 2008.
VET Guidelines
means the guidelines made under clause 99 of Schedule 1A.
History
Definition of "VET Guidelines" inserted by No 160 of 2012, s 3 and Sch 3 item 47, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013.
VET officer
has the meaning given by subclause 74(1) of Schedule 1A.
History
Definition of "VET officer" inserted by No 170 of 2007, s 3 and Sch 1 item 46, effective 1 January 2008.
VET personal information
has the meaning given by clause 72 of Schedule 1A.
History
Definition of "VET personal information" inserted by No 170 of 2007, s 3 and Sch 1 item 47, effective 1 January 2008.
VET provider
has the meaning given by clause 4 of Schedule 1A.
History
Definition of "VET provider" inserted by No 170 of 2007, s 3 and Sch 1 item 48, effective 1 January 2008.
VET Provider Guidelines
(Repealed by No 160 of 2012)
History
Definition of "VET Provider Guidelines" repealed by No 160 of 2012, s 3 and Sch 3 item 48, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013. The definition formerly read:
VET Provider Guidelines
means the VET Provider Guidelines made under clause 99 of Schedule 1A.
Definition of "VET Provider guidelines" inserted by No 170 of 2007, s 3 and Sch 1 item 49, effective 1 January 2008.
VET qualification
means:
(a)
a *VET diploma; or
(b)
a *VET advanced diploma; or
(c)
a *VET graduate diploma; or
(d)
a *VET graduate certificate; or
(e)
a qualification specified by the *VET Guidelines.
History
Definition of "VET qualification" inserted by No 160 of 2012, s 3 and Sch 1 item 32, applicable in relation to a VET unit of study commenced by a student on or after 1 January 2013.
VET quality and accountability requirements
has the meaning given by clause 13 of Schedule 1A.
History
Definition of "VET quality and accountability requirements" amended by No 23 of 2013, s 3 and Sch 3 item 11, by substituting "has the meaning given by clause 13" for "means the meaning given by subclause 13(1)", applicable in relation to a higher education provider or a VET provider approved before, on or after 29 March 2013 and to a condition imposed on or after 29 March 2013 on an approval of a higher education provider or a VET provider.
Definition of "VET quality and accountability requirements" inserted by No 170 of 2007, s 3 and Sch 1 item 50, effective 1 January 2008.
VET quality requirements
are the requirements set out in Subdivision 4-C of Schedule 1A.
History
Definition of "VET quality requirements" inserted by No 170 of 2007, s 3 and Sch 1 item 51, effective 1 January 2008.
VET Regulator
has the same meaning as in the National Vocational Education and Training Regulator Act 2011.
History
Definition of "VET Regulator" inserted by No 14 of 2011, s 3 and Sch 1 item 53, effective 1 July 2011.
VET restricted access arrangement
, for a*VET course of study, means an arrangement:
(a)
that was entered into between the *VET provider providing the course and an employer or industry body; and
(b)
that limits or restricts enrolments in some or all of the places in the course.
History
Definition of "VET restricted access arrangement" inserted by No 11 of 2008, s 3 and Sch 1 item 10, effective 20 March 2008.
VET student loan
has the same meaning as in the VET Student Loans Act 2016.
History
Definition of "VET student loan" inserted by No 100 of 2016, s 3 and Sch 1 item 21, effective 1 January 2017. For transitional provision, see note under s 137-19.
VET student loan debt
(Repealed by No 116 of 2018)
History
Definition of "VET student loan debt" repealed by No 116 of 2018, s 3 and Sch 1 item 12, effective 1 July 2019. The definition formerly read:
VET student loan debt
has the meaning given by subsection 137-19(1).
Definition of "VET student loan debt" inserted by No 100 of 2016, s 3 and Sch 1 item 21, effective 1 January 2017. For transitional provision, see note under s 137-19.
VET tuition assurance requirements
means the requirements set out in clause 7 of Schedule 1A.
History
Definition of "VET tuition assurance requirements" inserted by No 170 of 2007, s 3 and Sch 1 item 52, effective 1 January 2008.
VET tuition fee
: a person's
VET tuition fee
for a *VET unit of study is the fee determined under subclause 27(2) of Schedule 1A for the unit that applies to the person.
History
Definition of "VET tuition fee" amended by No 168 of 2015, s 3 and Sch 1 item 23, by inserting "of Schedule 1A", effective 31 December 2015.
Definition of "VET tuition fee" inserted by No 170 of 2007, s 3 and Sch 1 item 53, effective 1 January 2008.
VET Tuition Fee Guidelines
(Repealed by No 160 of 2012)
History
Definition of "VET Tuition Fee Guidelines" repealed by No 160 of 2012, s 3 and Sch 3 item 49, applicable: (a) for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A to the Higher Education Support Act 2003 - in relation to applications for approval made on or after 1 January 2013; and (b) in any other case - in relation to a VET provider approved before, on or after 1 January 2013. The definition formerly read:
VET Tuition Fee Guidelines
means the VET Tuition Fee Guidelines made under clause 99 of Schedule 1A.
Definition of "VET Tuition Fee Guidelines" inserted by No 170 of 2007, s 3 and Sch 1 item 54, effective 1 January 2008.
VET unit of study
means a subject or unit that a person may undertake with a *VET provider as part of a *VET course of study. If a VET provider provides the same such subject or unit in respect of more than one period, the subject or unit is taken to be a different VET unit of study in respect of each period.
History
Definition of "VET unit of study" inserted by No 170 of 2007, s 3 and Sch 1 item 55, effective 1 January 2008.
Voluntary repayment
means a payment made to the *Commissioner in discharge of an *accumulated HELP debt or a *HELP debt. It does not include a payment made in discharge of a *compulsory repayment amount.
work experience in industry
means work:
(a)
that is done as a part of, or in connection with, a *course of study undertaken with a higher education provider; and
(b)
in respect of which student learning and performance is not directed by the provider; and
(c)
the purpose of which is to obtain work experience relevant to the course of study; and
(d)
that meets any other requirements specified in the Administration Guidelines.
1(1A)
The Minister may, for the purposes of paragraph (c) of the definition of
eligible former permanent humanitarian visa holder
in subclause (1), make a determination in writing specifying a class or subclass of visas provided for by the Migration Act 1958 or regulations made under that Act.
History
Cl 1(1A) inserted by No 55 of 2021, s 3 and Sch 1 item 5, effective 1 January 2022.
1(1B)
A determination under subclause (1A) is a legislative instrument.
History
Cl 1(1B) inserted by No 55 of 2021, s 3 and Sch 1 item 5, effective 1 January 2022.
1(1C)
For the purposes of the definition of
grandfathered student
in subclause (1), if a *course of study covered by subclause (1D) is or was restructured by the provider on or after 1 January 2021, treat the course of study as continuing in existence as the same course of study after the restructure.
History
Cl 1(1C) inserted by No 55 of 2021, s 3 and Sch 1 item 31, effective 25 June 2021 and applicable in relation to the following: (a) funding agreements entered into under Part 2-2 of that Act in respect of 2021 and later calendar years; (b) grants payable under Part 2-2 of that Act for 2021 and later calendar years; (c) units of study with a census date on or after 1 January 2021.
1(1CA)
Without limiting subclause (1C), a *course of study is taken to be restructured by a provider for the purposes of that subclause if the course of study is discontinued by the provider.
History
Cl 1(1CA) inserted by No 3 of 2023, s 3 and Sch 1 item 3, effective 21 February 2023. No 3 of 2023, s 3 and Sch 1 items 4-12 contain the following application and transitional provisions:
Part 2 - Application and transitional provisions
4 Definitions
4
In this Part:
affected student
means a person who:
(a)
is a grandfathered student because of subparagraph (a)(ia) of the definition of that term in Schedule 1 to the Higher Education Support Act 2003, as amended by Part 1 of this Schedule; and
(b)
enrolled in a unit of study in an honours course referred to in that subparagraph that has a census date at any time during the transition period.
old student contribution amount
for a unit of study for an affected student means the student contribution amount for the unit of study that applied to the student during the transition period.
relevant amendment
means the amendment made by item 1 of Part 1 of this Schedule.
transition period
means the period starting on 1 January 2021 and ending on the day before the commencement of this item.
5 Application - definition of grandfathered student
5
The relevant amendment applies on and after the commencement of this item in relation to a person who undertakes a unit of study in an ongoing course or an honours course that has a census date on or after 1 January 2021, whether the person enrolled in that unit of study before, on or after the commencement of that item.
6 Application - restructured courses
6
The amendment made by item 3 of Part 1 of this Schedule applies in relation to restructures that occur on or after 1 January 2021.
7 Full up-front payment made during transition period
(1)
This item applies if:
(a)
during the transition period, an affected student made one or more up-front payments to a higher education provider in relation to a unit of study; and
(b)
the amount of that payment, or the sum of those payments, is equal to 90% of the affected student's old student contribution amount for the unit; and
(c)
under section 96-3 of the Higher Education Support Act 2003, the Commonwealth paid an amount to the higher education provider for the unit in discharge of the affected student's liability to pay their old student contribution amount for the unit.
(2)
If the amount paid by the Commonwealth is more than the amount that would have been paid to the higher education provider had the relevant amendment been in force during the transition period, the difference between the 2 amounts may be:
(a)
deducted from any amount that is payable, or to be paid, to the higher education provider under the Higher Education Support Act 2003; or
(b)
recovered by the Commonwealth from the higher education provider as a debt due to the Commonwealth.
(3)
If the amount paid by the affected student is more than the amount that could have been paid to the higher education provider had the relevant amendment been in force during the transition period, the higher education provider must pay to the affected student an amount equal to the difference between the 2 amounts.
8 Partial up-front payments made during transition period
(1)
This item applies if:
(a)
during the transition period, an affected student made one or more up-front payments to a higher education provider in relation to a unit of study; and
(b)
the amount of that payment, or the sum of those payments is less than 90% of the affected student's old student contribution amount for the unit; and
(c)
the Commonwealth paid the following amounts to the higher education provider in relation to the student and the unit:
(i)
an amount under paragraph 96-2(3)(b) of the Higher Education Support Act 2003;
(ii)
an amount under subsection 96-2(4) of that Act.
(2)
If the amount (the
old amount
) referred to in subparagraph (1)(c)(i) or (ii) is more than the amount (the
new amount
) that would have been paid to the provider had the relevant amendment been in force during the transition period, the difference between the old amount and the new amount may be:
(a)
deducted from any amount that is payable, or to be paid, to the higher education provider under the Higher Education Support Act 2003; or
(b)
recovered by the Commonwealth from the higher education provider as a debt due to the Commonwealth.
(3)
If the amount paid by the affected student is more than the amount that could have been paid to the higher education provider had the relevant amendment been in force during the transition period, the higher education provider must pay to the affected student an amount equal to the difference between the 2 amounts.
(4)
The higher education provider must, on the Secretary's behalf, re-credit the affected student's HELP balance with an amount (the
relevant amount
) that is equal to the difference between the amount referred to in subparagraph (1)(c)(i) that was paid to the provider and the amount that would have been paid under paragraph 96-2(3)(b) of the Higher Education Support Act 2003, had the relevant amendment been in force during the transition period.
(5)
The affected student's HECS-HELP debt in relation to the unit of study is taken to be remitted by an amount equal to the relevant amount for the purposes of the Higher Education Support Act 2003.
9 No up-front payments made during transition period
(1)
This item applies if, during the transition period:
(a)
under section 96-1 of the Higher Education Support Act 2003, the Commonwealth:
(i)
as a benefit to an affected student, lent to the student an amount of HECS-HELP assistance for a unit of study with a higher education provider; and
(ii)
paid to the provider the amount lent in discharge of the student's liability to pay their student contribution amount for the unit; and
(b)
the affected student did not make any up-front payments in relation to the unit.
(2)
If the amount paid to the higher education provider is more than the amount that would have been paid in relation to the affected student had the relevant amendment been in force during the transition period, the difference between the 2 amounts may be:
(a)
deducted from any amount that is payable, or to be paid, to the higher education provider under the Higher Education Support Act 2003; or
(b)
recovered by the Commonwealth from the higher education provider as a debt due to the Commonwealth.
(3)
The higher education provider must, on the Secretary's behalf, re-credit the affected student's HELP balance with an amount (the
relevant amount
) that is equal to the difference between the amount that was paid to the provider and the amount that would have been paid in relation to the affected student, had the relevant amendment been in force during the transition period.
(4)
The affected student's HECS-HELP debt in relation to the unit of study is taken to be remitted by an amount equal to the relevant amount for the purposes of the Higher Education Support Act 2003.
10 Secretary may act if provider is unable to
10
If a higher education provider is unable to act for one or more of the purposes of subitem 8(4) or 9(3), the Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.
11 Interaction with the
Higher Education Support Act 2003
11
The obligations imposed on a higher education provider under Part 2 of this Schedule are taken, for the purposes of the Higher Education Support Act 2003, to be conditions of a grant made to the provider under Part 2-2 of that Act.
12 Transitional rules
(1)
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.
(2)
Without limiting subitem (1), rules made under this item before the end of the period of 12 months starting on the day this Schedule commences may provide that provisions of this Schedule, or any other Act or instrument, have effect with any modifications prescribed by the rules. Those provisions then have effect as if they were so modified.
(3)
To avoid doubt, the rules may not do the following:
(a)
create an offence or civil penalty;
(b)
provide powers of:
(i)
arrest or detention; or
(ii)
entry, search or seizure;
(c)
impose a tax;
(d)
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e)
directly amend the text of an Act.
(4)
This Schedule (other than subitem (3)) does not limit the rules that may be made for the purposes of subitem (1).
1(1D)
This subclause covers a *course of study that is:
(a)
an ongoing course (within the meaning of paragraph (a) of the definition of
grandfathered student
in subclause (1)); or
(b)
a *replacement course in relation to such an ongoing course.
History
Cl 1(1D) inserted by No 55 of 2021, s 3 and Sch 1 item 31, effective 25 June 2021 and applicable in relation to the following: (a) funding agreements entered into under Part 2-2 of that Act in respect of 2021 and later calendar years; (b) grants payable under Part 2-2 of that Act for 2021 and later calendar years; (c) units of study with a census date on or after 1 January 2021.
1(2)
For the purposes of paragraph (e) of the definition of
Overseas student
in subclause (1), a representative's relatives include (without limitation):
(a)
an exnuptial or adoptive child of the representative, or someone of whom the representative is an exnuptial or adoptive child; and
(b)
someone who is a child of the representative, or of whom the representative is a child, because of subclause (3); and
(c)
relatives traced through relationships referred to in paragraphs (a) and (b).
History
Cl 1(2) inserted by No 144 of 2008, s 3 and Sch 5 item 9, effective 10 December 2008.
1(3)
For the purposes of paragraph (2)(b), one person is the
child
of another person because of this subclause if he or she is a child of the other person within the meaning of the Family Law Act 1975.
History
Cl 1(3) inserted by No 144 of 2008, s 3 and Sch 5 item 9, effective 10 December 2008.
1(4)
The Minister may, by legislative instrument, determine a kind of visa for the purposes of paragraph (b) of the definition of
Pacific engagement visa holder
in subclause (1) if the Minister has been advised by the Minister administering the Migration Act 1958 (the
Immigration Minister
) that, in the opinion of the Immigration Minister:
(a)
the kind of visa has replaced or will replace:
(i)
the kind of visa mentioned in paragraph (a) of that definition; or
(ii)
a kind of visa previously determined under this subclause; and
(b)
the replacement kind of visa is intended to give the same benefits as the replaced kind of visa.
History
Cl 1(4) inserted by No 100 of 2023, s 3 and Sch 1 item 11, effective 29 March 2024.
SECTION 2
Index numbers
2(1)
For the purposes of Parts 4-1 and 4-2, the
index number
for a *quarter is the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the *Australian Statistician in respect of that quarter.
2(2)
Subject to subclause (3), if, at any time before or after the commencement of this clause:
(a)
the *Australian Statistician has published or publishes an *index number in respect of a *quarter; and
(b)
that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;
disregard the publication of the later index number for the purposes of this clause.
2(3)
If, at any time before or after the commencement of this clause, the *Australian Statistician has changed or changes the index reference period for the Consumer Price Index, then, in applying this clause after the change took place or takes place, have regard only to *index numbers published in terms of the new index reference period.
History
Cl 2 inserted by No 76 of 2018, s 3 and Sch 1 item 16, effective 1 July 2019 and applicable in relation to the 2020-21 income year and later income years.