PART 3A - VETSL DEBTS  

Division 1 - Simplified outline of this Part  

SECTION 23AA  

23AA   SIMPLIFIED OUTLINE OF THIS PART  

Division 2 - VETSL debts  

SECTION 23BA   VETSL DEBT  

23BA(1)    
A person incurs a debt to the Commonwealth if the Secretary:

(a) approves a VET student loan for the person; and

(b) uses a loan amount covered by the VET student loan to pay tuition fees for the person for a course.

The debt is a VETSL debt .

23BA(2)    
The amount of the VETSL debt is:

(a) 120% of the loan amount; or

(b) if the rules 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.

23BA(3)    
A VETSL debt is incurred on the day that the Secretary pays the loan amount.

23BA(4)    

A person's VETSL debt, in relation to a loan amount used to pay tuition fees for the person for a course, is taken to be remitted if the person's HELP balance is re-credited under Division 2 or 3 of Part 6 in relation to the loan amount.

SECTION 23BB  

23BB   VETSL DEBT DISCHARGED BY DEATH  

Upon the death of a person who owes a VETSL debt to the Commonwealth, the debt is taken to have been paid.

Note:

VETSL debts are not provable in bankruptcy: see subsection 82(3AB) of the Bankruptcy Act 1966.

SECTION 23BC   NOTICE TO COMMISSIONER  

23BC(1)    
If a person incurs a VETSL debt, the Secretary must give the Commissioner a notice specifying the amount of the debt incurred by the person.

23BC(2)    
The Secretary may include in the notice any other details the Commissioner requests for the purpose of ensuring the Commissioner has the information needed to exercise powers or perform functions of the Commissioner under or in relation to this Act.

Division 3 - Accumulated VETSL debts  

SECTION 23CA  

23CA   SIMPLIFIED OUTLINE OF THIS DIVISION  

Note:

Incurring that financial year's accumulated VETSL debt discharges the previous accumulated VETSL debt and VETSL debts: see section 23CE.

SECTION 23CB   STAGE 1 - WORKING OUT A FORMER ACCUMULATED VETSL DEBT  

23CB(1)    
A person's former accumulated VETSL debt , in relation to the person's accumulated VETSL 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 (within the meaning of the Higher Education Support Act 2003) for 1 June in that financial year. Method statement

EXAMPLES

Example:

Lorraine is studying part-time for a Diploma of Early Childhood Education and Care. On 1 June 2020, Lorraine had an accumulated VETSL debt of $15,000. She incurred a VETSL debt of $1,500 on 31 March 2020. She made a voluntary repayment of $525 on 1 May 2021. Lorraine lodged her 2019-20 income tax return and a compulsory VETSL repayment amount of $3,000 was assessed and notified on her income tax notice of assessment on 3 September 2020.

To work out Lorraine's former accumulated VETSL debt before indexation on 1 June 2021:

Step 1: Take the previous accumulated VETSL debt of $15,000 on 1 June 2020.

Step 2: Add the VETSL debt of $1,500 incurred on 31 March 2020.

Step 3: Subtract the $525 voluntary repayment made on 1 May 2021.

Step 4: Subtract the $3,000 compulsory repayment assessed on 3 September 2020.

Step 5: Does not apply because since 1 June 2020 Lorraine had no amendments to any assessment.

Step 6: Does not apply because since 1 June 2020 Lorraine had no amendments to any assessment.

Lorraine's former accumulated VETSL debt before indexation on 1 June 2021 is:

($15,000 + $1,500) − ($525 + $3,000) = $12,975

If, for example, the indexation factor for 1 June 2021 were 1.030, then the former accumulated VETSL debt would be:

$12,975 × 1.030 = $13,364.25

23CB(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.

SECTION 23CC   STAGE 2 - WORKING OUT AN ACCUMULATED VETSL DEBT  

23CC(1)    
A person's accumulated VETSL debt , for a financial year, is worked out as follows:

Former accumulated VETSL debt + VETSL debts incurred − VETSL debt repayments

where:

former accumulated VETSL debt
means the person's former accumulated VETSL debt in relation to that accumulated VETSL debt.

VETSL debt repayments
means 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 VETSL debts incurred in that year.

VETSL debts incurred
means the sum of the amounts of all of the VETSL debts (if any) that the person incurred during the first 6 months of the financial year, with the total rounded down to the nearest whole dollar (and a total of less than one dollar taken to be zero).

Example:

Paula is studying part-time for a Diploma of Nursing. On 1 June 2021, her former accumulated VETSL debt was worked out using section 23CB to be $20,000. She incurred a VETSL debt of $1,500 on 31 August 2020. No repayments have been made in the 12 months from 1 June 2020.

Paula's accumulated VETSL debt on 1 June 2021 is worked out by taking her former accumulated VETSL debt of $20,000 and adding the $1,500 VETSL debt incurred on 31 August 2020. That is:

$20,000 + $1,500 = $21,500

23CC(2)    
The person incurs the accumulated VETSL debt on 1 June in the financial year.

23CC(3)    
The first financial year for which a person can have an accumulated VETSL debt is the financial year starting on 1 July 2019.

SECTION 23CD   ROUNDING OF AMOUNTS  

23CD(1)    
If, apart from this section, a person's accumulated VETSL debt would be an amount consisting of a number of whole dollars and a number of cents, disregard the number of cents.

23CD(2)    
If, apart from this section, a person's accumulated VETSL debt would be an amount of less than one dollar, the person's accumulated VETSL debt is taken to be zero.

SECTION 23CE   ACCUMULATED VETSL DEBT DISCHARGES EARLIER DEBTS  

23CE(1)    
The accumulated VETSL debt that a person incurs on 1 June in a financial year discharges, or discharges the unpaid part of:

(a) any VETSL debt that the person incurred during the calendar year immediately preceding that day; and

(b) any accumulated VETSL debt that the person incurred on the immediately preceding 1 June.

23CE(2)    
Nothing in subsection (1) affects the application of Division 2 or section 23CB or 23CC.

SECTION 23CF   ACCUMULATED VETSL DEBT DISCHARGED BY DEATH  

23CF(1)    
Upon the death of a person who has an accumulated VETSL debt, the accumulated VETSL debt is taken to be discharged.

23CF(2)    
To avoid doubt, this section does not affect any compulsory VETSL repayment amounts required to be paid in respect of the accumulated VETSL debt, whether or not those amounts were assessed before the person's death.

Note:

Accumulated VETSL debts are not provable in bankruptcy: see subsection 82(3AB) of the Bankruptcy Act 1966.

Division 4 - Voluntary discharge of debt  

SECTION 23DA   VOLUNTARY REPAYMENTS  

23DA(1)    
A person may at any time make a payment in respect of a debt that the person owes to the Commonwealth under this Part.

23DA(2)    
The payment must be made to the Commissioner.

SECTION 23DB   APPLICATION OF VOLUNTARY REPAYMENTS  

23DB(1)    
Any money a person pays under this Division to meet the person's debts to the Commonwealth under this Part is to be applied in payment of those debts as the person directs at the time of the payment.

23DB(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 VETSL debt of the person;

(b) secondly, in discharge or reduction of:

(i) any VETSL 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 23DC  

23DC   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 Part; 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.

Division 5 - Compulsory discharge of debt 

Subdivision A - Compulsory repayments  

SECTION 23EA   COMPULSORY REPAYMENTS  

23EA(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 VETSL debt;

the person is liable to pay to the Commonwealth, in accordance with this Division, so much of the person's repayable VETSL debt for the income year as does not exceed the amount worked out using the formula:

Applicable percentage of repayment income − Relevant income-contingent loans liability

where:

applicable percentage of repayment income
means the amount that is the percentage of the person's repayment income worked out in respect of the income year using the table in section 154-20 of the Higher Education Support Act 2003.

relevant income-contingent loans liability
means the amount that is the sum of any amounts the person is liable to pay under section 154-1 or 154-16 of the Higher Education Support Act 2003 in respect of the income year.

23EA(2)    
A person is not liable under this section to pay an amount for an income year if the amount worked out under subsection (1) is zero or less.

23EA(3)    
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 23EB   REPAYABLE VETSL DEBT FOR AN INCOME YEAR  

23EB(1)    
A person's repayable VETSL debt for an income year is:

(a) the person's accumulated VETSL debt referred to in paragraph 23EA(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 23EE 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.

23EB(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 B - Levy for overseas debtors  

SECTION 23EC   LIABILITY OF OVERSEAS DEBTORS TO REPAY AMOUNTS  

23EC(1)    
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 VETSL debt;

the person is liable to pay to the Commonwealth, in accordance with this Division, a levy of the amount worked out under subsection (2).

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.

23EC(2)    
The amount of levy that a person is liable to pay under this section, 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 23EA 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 23EA(3) did not apply to the person; and

(b) the amount (if any) the person is liable to pay under section 23EA, in respect of the income year.

SECTION 23ED   NOTICES TO BE GIVEN TO THE COMMISSIONER  

Notice relating to leaving Australia

23ED(1)    
A person who:

(a) has an accumulated VETSL debt or otherwise has a VETSL debt that has not yet been discharged; and

(b) leaves Australia (other than in circumstances specified in the rules) 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

23ED(2)    
A person who:

(a) has an accumulated VETSL debt or otherwise has a VETSL 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 rules) 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.

Notice relating to income (including foreign-sourced income)

23ED(3)    
A person who:

(a) is a foreign resident; and

(b) on 1 June immediately preceding an income year, had an accumulated VETSL debt;

must (other than in circumstances specified in the rules) 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 a notice: see section 388-55 in Schedule 1 to the Taxation Administration Act 1953.

Content of notices under this section

23ED(4)    
The rules may provide for the content of notices under this section.

Subdivision C - Assessments  

SECTION 23EE  

23EE   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) a person's accumulated VETSL 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 23EA or 23EC.

SECTION 23EF  

23EF   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 23EE 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) of this section.

SECTION 23EG   COMMISSIONER MAY DEFER MAKING ASSESSMENTS  

23EG(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 23EE.

23EG(2)    
The application must specify:

(a) the income year for which the deferral is being sought; and

(b) the reasons for seeking the deferral.

23EG(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.

23EG(4)    
The Commissioner may, on application by a person under this section, defer making an assessment in respect of the person under section 23EE if the Commissioner is of the opinion that:

(a) if the assessment were made, payment of the assessed amount would cause serious hardship to the person; or

(b) there are other special reasons that make it fair and reasonable to defer making the assessment.

23EG(5)    
The Commissioner may defer making the assessment for any period the Commissioner thinks appropriate.

23EG(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 7.

SECTION 23EH   COMMISSIONER MAY AMEND ASSESSMENTS  

23EH(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 23EE so that:

(a) the amount payable under the assessment is reduced; or

(b) no amount is payable under the assessment.

23EH(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.

23EH(3)    
The Commissioner may, on application by a person under this section, amend an assessment made in respect of the person under section 23EE 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.

23EH(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 7.

Division 6 - Application of tax legislation  

SECTION 23FA  

23FA   RETURNS, ASSESSMENTS, COLLECTION AND RECOVERY  

Subject to Divisions 4 and 5 and this Division:

(a) Part IV of the Income Tax Assessment Act 1936; and

(b) Division 5 of the Income Tax Assessment Act 1997; and

(c) 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 VETSL 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.

SECTION 23FB   CHARGES AND CIVIL PENALTIES FOR FAILING TO MEET OBLIGATIONS  

23FB(1)    
Part 4-25 in Schedule 1 to the Taxation Administration Act 1953 has effect as if:

(a) any compulsory VETSL 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) paragraphs 17(1)(a) and 20(a), this Part and sections 97 and 107 of this Act were income tax laws (within the meaning of the Income Tax Assessment Act 1997).

23FB(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 23FC  

23FC   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 VETSL repayment amount of a person as if the compulsory VETSL repayment amount were income tax.

SECTION 23FD  

23FD   PAY AS YOU GO (PAYG) INSTALMENTS  

Division 45 in Schedule 1 to the Taxation Administration Act 1953 applies, so far as it is capable of application, in relation to the collection of a compulsory VETSL repayment amount of a person as if the compulsory VETSL repayment amount were income tax.

SECTION 23FE  

23FE   FAILURES TO COMPLY WITH SECTION 23ED  

Part III of the Taxation Administration Act 1953 applies in relation to a failure to comply with section 23ED of this Act as if that section were a taxation law (within the meaning of section 2 of that Act).

SECTION 23FF  

23FF   EXTENT OF COMMISSIONER'S GENERAL ADMINISTRATION OF THIS ACT  

The Commissioner has the general administration of this Act to the following extent:

(a) paragraphs 17(1)(a) and 20(a) (loan applications to include tax file numbers);

(b) this Part;

(c) Part 7 so far as it relates to reviewable decisions for which the Commissioner is the decision maker;

(d) section 97 (Commissioner may disclose VET information);

(e) section 107 (verifying tax file numbers).

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.

PART 4 - APPROVED COURSE PROVIDERS  

Division 1 - Approving course providers  

SECTION 24  

24   MEANING OF APPROVED COURSE PROVIDER  
A body approved by the Secretary under this Division is an approved course provider .

SECTION 25   SECRETARY MAY APPROVE A BODY  

25(1)    
The Secretary may approve a body as an approved course provider if the Secretary is satisfied that the body meets the course provider requirements.

25(2)    
To meet the course provider requirements the body must:

(a) be a body corporate that is not a trustee; and

(b) be established under the law of the Commonwealth, a State or a Territory; and

(c) carry on business in Australia and have its central management and control in Australia; and

(d) be a registered training organisation; and

(e) meet the provider suitability requirements; and

(f) be a fit and proper person; and

(h) be a member of an approved external dispute resolution scheme.

Note:

If Part IIE of the Ombudsman Act 1976 (VET Student Loans Ombudsman) is an external dispute resolution scheme, all approved course providers are taken to be members of the scheme (see section 42BA).

25(3)    
The Secretary may, in writing, exempt a body from the requirement in paragraph (2)(h) to be a member of an approved external dispute resolution scheme.

25(4)    
An exemption under subsection (3) is subject to such conditions as are specified in the exemption.

SECTION 26   PROVIDER SUITABILITY REQUIREMENTS  

26(1)    
The rules may set out provider suitability requirements for the purposes of ensuring that loan amounts are paid to suitable course providers.

26(2)    
The provider suitability 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.

26(3)    
Subsection (2) does not limit the provider suitability requirements.

SECTION 27   LISTED COURSE PROVIDERS MAY BE TAKEN TO MEET REQUIREMENTS  

27(1)    
The rules may provide for a listed course provider to be taken to meet one or more course provider requirements.

27(2)    
Each of the following is a listed course provider as long as it is a registered training organisation:

(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;

(e) a body specified in the rules.

SECTION 28   APPLICATION FOR APPROVAL  

28(1)    
A body may apply to the Secretary for approval as an approved course provider.

28(2)    
The application must be:

(a) in the form approved by the Secretary; and

(b) accompanied by the application fee for the application.

28(3)    
The Secretary may:

(a) request the applicant to provide further information for the purposes of deciding the application; and

(b) require some or all of the further information to be provided as a statutory declaration.

28(4)    
The rules may set out requirements in relation to applying for approval.

SECTION 29   PERIOD OF APPROVAL  

29(1)    
Approval as an approved course provider has effect for the period specified in the approval.

29(2)    
The period must not be more than 7 years.

29(3)    
This section has effect subject to section 33.

SECTION 30   DECISIONS ABOUT APPROVAL  

30(1)    
This section applies if:

(a) a body applies to the Secretary for approval as an approved course provider; and

(b) the Secretary considers and decides the application.

Note:

The Secretary is not required to consider or decide an application for approval as an approved course provider: see section 32.

30(2)    
The Secretary must give written notice of the decision to the body.

30(3)    
The notice must:

(a) be given in accordance with any requirements set out in the rules; and

(b) if the Secretary decides to approve the body for a period of less than 7 years - include the reasons for the period being less than 7 years.

SECTION 31   FEES FOR APPLICATIONS  

31(1)    
The Secretary may, by legislative instrument, prescribe fees, or a method of working out fees, for making applications for approval as an approved course provider.

31(2)    
A fee for making an application for approval as an approved course provider must not be such as to amount to taxation.

SECTION 32   WHEN SECRETARY IS NOT REQUIRED TO CONSIDER APPLICATION  

32(1)    
The Secretary is not required to consider or decide an application for approval as an approved course provider:

(a) if the application does not comply with section 28; or

(b) in circumstances set out in the rules.

32(2)    
If the Secretary does not consider or decide an application, the Secretary must:

(a) give the applicant written notice of, and reasons for, not so considering or deciding; and

(b) refund any application fee for the application.

32(3)    
The notice must be given within 30 days after the application is made, otherwise the Secretary must consider and decide the application.

SECTION 33   PERIOD OF APPROVAL EXTENDS TO COVER DECISION ON RE-APPROVAL  

33(1)    
This section applies if:

(a) a body is approved (the current approval ) as an approved course provider; and

(b) the body applies for approval as an approved course provider for a further period; and

(c) the application is made before the beginning of:

(i) the period of 90 days before the current approval ends; or

(ii) such shorter period as the Secretary allows.

33(2)    
The provider's current approval continues in effect until the application is decided.

Division 2 - Conditions of approval  

SECTION 34   SECRETARY MAY IMPOSE CONDITIONS  

34(1)    
The Secretary may, at any time:

(a) impose conditions on the approval of an approved course provider; or

(b) vary a condition of the approval.

34(2)    
The conditions may include the following:

(a) that one or more provider fee limits apply to the provider;

(b) that loan amounts will be paid to the provider for specified approved courses only;

(c) that an approved course provided by the provider will:

(i) be delivered in a particular way; or

(ii) address particular content or skills.

34(3)    
A provider fee limit is a limit onloan amounts that can be paid to a provider:

(a) for a particular period; or

(b) for a particular approved course; or

(c) for a particular approved course for a particular period.

34(4)    
Subsection (2) does not limit the conditions the Secretary may impose on the approval.

34(5)    
The Secretary must give the provider written notice of, and written reasons for:

(a) imposing a condition on the approval; or

(b) varying a condition of the approval.

34(6)    
The rules may set out requirements in relation to giving such notice and reasons.

Division 3 - Revoking and suspending approvals  

SECTION 35  

35   AUTOMATIC REVOCATION ON WINDING UP  
If an approved course provider is wound up, the approval of the body is revoked when the winding up commences.

Note:

Commence , in relation to winding up, has the same meaning as in the Corporations Act 2001: see section 6.

SECTION 35A   AUTOMATIC REVOCATION IF BODY CEASES TO BE A REGISTERED TRAINING ORGANISATION  

35A(1)    
The approval of a body as an approved course provider is revoked if:

(a)    the body ceases to be listed as a registered training organisation on the National Register (within the meaning of the National Vocational Education and Training Regulator Act 2011); and

(b)    in each case where the relevant VET Regulator has made a decision covered by subsection (2):

(i) the decision has not been set aside or quashed; and

(ii) 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

(iii) 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.

35A(2)    
The decisions are:

(a)    a decision under section 17 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 (within the meaning of that Act); and

(b)    a decision under section 39 of that Act to cancel the body's registration as an NVR registered training organisation; and

(c)    a decision under a law of a State that has a similar effect to a decision referred to in paragraph (a) or (b).

35A(3)    
The revocation of the body's approval as an approved course provider takes effect at the start of the day after the first day on which subsection (1) applies to the body.

35A(4)    
The Secretary must notify the body in writing of the revocation.

SECTION 36   SECRETARY MAY REVOKE OR SUSPEND APPROVAL  

36(1)    
The Secretary may revoke or suspend the approval of an approved course provider if the Secretary is satisfied that the provider is not complying with this Act.

36(2)    
Before revoking or suspending the approval, the Secretary must give the provider written notice (the intention notice ) of the following:

(a) that the Secretary is proposing to revoke or suspend the approval;

(b) the reasons why the Secretary is proposing to revoke or suspend the approval;

(c) that the provider may make written submissions to the Secretary as to why the Secretary should not revoke or suspend the approval;

(d) that the written submissions must be given to the Secretary within the period (the submission period ):

(i) for proposed suspension - that ends 14 days after the intention notice is given; or

(ii) for proposed revocation - that ends 28 days after the intention notice is given.

36(3)    
The Secretary must consider any submissions given by the provider within the submission period.

36(4)    
The Secretary must give the provider written notice (the decision notice ) of:

(a) the Secretary's decision on the suspension or revocation; and

(b) the reasons for the decision.

The decision notice must be given within 28 days after the end of the submission period.

36(5)    
If the Secretary revokes or suspends the approval, the revocation or suspension takes effect on the day specified in the decision notice, which must not be a day before the decision is made.

36(6)    
A decision to suspend or revoke is not invalid merely because the Secretary failed to give the decision notice within the time required under subsection (4).

Note:

The Secretary may publish information about compliance action that has been taken under this Act: see section 103.

SECTION 37   IMMEDIATE SUSPENSION IN CERTAIN CIRCUMSTANCES  

37(1)    
The Secretary may suspend the approval of an approved course provider (without giving the provider an intention notice under section 36) if:

(a) the Secretary suspects on reasonable grounds that the provider is not complying with this Act; and

(b) the Secretary is satisfied that the circumstances require urgent action.

37(2)    
The Secretary must give the provider written notice of:

(a) the suspension; and

(b) the reasons for the suspension; and

(c) the effect of subsection (4).

37(3)    
The suspension begins at the time specified in the notice, which must not be before the notice is given.

37(4)    
Unless subsection (5) or (6) applies, the suspension ends when one of the following happens:

(a) the Secretary notifies the provider in writing that the suspension has ended;

(b) 14 days have passed since the suspension began.

37(5)    
If, within 14 days after the suspension began, the Secretary givesthe provider an intention notice under section 36, the suspension ends when the Secretary gives the provider the decision notice under that section.

37(6)    
If, within 14 days after the suspension began, the Secretary requires the provider to be audited under section 45, the suspension ends:

(a) unless paragraph (b) applies - 14 days after the Secretary receives the report on the audit; or

(b) if, within that 14 days, the Secretary gives the provider an intention notice under section 36 - when the Secretary gives the provider the decision notice under that section.

Note:

The Secretary may publish information about compliance action that has been taken under this Act: see section 103.

SECTION 38   SECRETARY MUST REVOKE APPROVAL ON PROVIDER REQUEST  

38(1)    
If an approved course provider makes a written request to the Secretary for the approval of the provider to be revoked, the Secretary must:

(a) revoke the approval; and

(b) give the provider written notice of the revocation.

38(2)    
Despite subsection (1), the Secretary may refuse to revoke the approval if, at the time the request is made:

(a) the Secretary has given the provider written notice, under subsection 36(2), that the Secretary is proposing to revoke or suspend the approval; and

(b) the Secretary has not given written notice, under subsection 36(4), of the Secretary's decision on the suspension or revocation.

38(3)    
Despite subsection (1), the Secretary may refuse to revoke the approval if, at the time the request is made:

(a) the Secretary has given the provider a written notice, under subsection 36(4) or 37(2), that the Secretary has suspended the provider's approval; and

(b) the suspension has not ended.

SECTION 39  

39   SECRETARY TO NOTIFY RELEVANT VET REGULATOR AND VSL TUITION PROTECTION DIRECTOR IF APPROVAL IS REVOKED OR SUSPENDED  
If the approval of an approved course provider is revoked or suspended, the Secretary must give written notice of the revocation or suspension to:

(a) the relevant VET Regulator; and

(b) the VSL Tuition Protection Director.

Division 4 - Tuition assurance  

Division 4A - External dispute resolution  

SECTION 42A   MINISTER MAY SPECIFY EXTERNAL DISPUTE RESOLUTION SCHEME  

42A(1)    
The Minister may, by legislative instrument, specify a scheme that provides for investigation and resolution of disputes relating to the following:

(a) VET student loans;

(b) compliance by approved course providers with this Act;

(c) VET FEE-HELP assistance (within the meaning of the Higher Education Support Act 2003);

(d) compliance by VET providers (within the meaning of the Higher Education Support Act 2003) with the Higher Education Support Act 2003.

42A(2)    
The Minister must specify the operator of the scheme in the legislative instrument.

Note:

The rules may provide for matters that the Minister may or must have regard to in deciding to specify a scheme: see subsection 116(3).

SECTION 42B  

42B   MEANING OF APPROVED EXTERNAL DISPUTE RESOLUTION SCHEME  
A scheme is an approved external dispute resolution scheme if the scheme:

(a) provides for investigation and resolution of disputes as mentioned in section 42A; and

(b) is specified in a legislative instrument made under section 42A; and

(c) is operated by the person (the approved external dispute resolution scheme operator ) specified in the legislative instrument.

SECTION 42BA  

42BA   EXTERNAL DISPUTE RESOLUTION SCHEME - VET STUDENT LOANS OMBUDSMAN  

If Part IIE of the Ombudsman Act 1976 is specified as an external dispute resolution scheme under section 42A:

(a) the scheme is taken to be operated by the VET Student Loans Ombudsman; and

(b) all approved course providers are taken to be members of the scheme.

SECTION 42C  

42C   APPROVED COURSE PROVIDER MUST COMPLY  
An approved course provider must comply with the requirements of the approved external dispute resolution scheme of which the provider is a member.

Note:

The rules may set out additional processes and procedures in relation to external dispute resolution: see section 48.

Division 5 - Ensuring compliance  

SECTION 43   COMPLIANCE NOTICES  

43(1)    
This section applies if the Secretary:

(a) is satisfied that an approved course provider is not complying with this Act; or

(b) is aware of information that suggests that an approved course provider may not be complying with this Act.

43(2)    
The Secretary may give the provider a compliance notice.

43(3)    
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 Secretary considers it appropriate - specify a reasonable period within which the provider must provide the Secretary with evidence that the provider has taken, or refrained from taking, the specified action; and

(f) state that a failure to comply with the notice is subject to a civil penalty and may also lead to the provider's approval being suspended or revoked; and

(g) set out any other matters specified in the rules for the purposes of this paragraph.

43(4)    
An approved course provider contravenes this subsection if the provider fails to comply with a compliance notice.

Civil penalty: 60 penalty units.

43(5)    
To avoid doubt, the Secretary is not required to give an approved course provider a compliance notice before suspending or revoking the provider's approval.

SECTION 44   VARYING AND REVOKING COMPLIANCE NOTICES  

44(1)    
The Secretary may, by written notice given to an approved course provider, vary or revoke a compliance notice if the Secretary 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.

44(2)    
In deciding whether to vary or revoke a compliance notice, the Secretary must consider any submissions that are received from the provider before the end of the period mentioned in paragraph 43(3)(d).

SECTION 45   COMPLIANCE AUDITS  

45(1)    
The Secretary may require an approved course provider to be audited.

45(2)    
The audit (the compliance audit ) must be for the purposes of determining either or both of the following:

(a) whether the provider is complying with this Act;

(b) whether one or more students enrolled by the provider are genuine students.

45(3)    
The audit must be conducted:

(a) by:

(i) the National VET Regulator; or

(ii) an auditor approved in writing by the Secretary; and

(b) at such time or times, and in such manner, as the Secretary requires.

45(4)    
The auditor may require any person to provide the auditor with all reasonable facilities and assistance for the purposes of the audit.

45(5)    
A person contravenes this subsection if the person fails to cooperate fully with the auditor in relation to a compliance audit.

Civil penalty: 60 penalty units.

SECTION 46  

46   APPROVED COURSE PROVIDER MUST COOPERATE  
An approved course provider contravenes this section if the provider fails to cooperate fully with any of the following in ensuring compliance with, and the efficient and effective administration of, this Act:

(a) a VET Regulator;

(b) the Secretary;

(ba) the VSL Tuition Protection Director;

(c) an APS employee in the Department;

(d) a consultant engaged by the Commonwealth to perform work in relation to this Act;

(e) the operator of the approved external dispute resolution scheme of which the provider is a member.

Civil penalty: 60 penalty units.

PART 5 - OTHER REQUIREMENTS FOR APPROVED COURSE PROVIDERS  

Division 1 - General  

SECTION 47   CONDITIONS OF APPROVAL AND COURSE PROVIDER REQUIREMENTS  

47(1)    
An approved course provider must comply with any conditions imposed on the provider's approval.

47(2)    
An approved course provider must continue to meet the course provider requirements.

SECTION 48   PROVIDER MUST HAVE CERTAIN PROCESSES AND PROCEDURES  

48(1)    
The rules may require an approved course provider to have specified processes and procedures in place.

48(2)    
The processes and procedures may relate to one or more of the following:

(a) information the provider collects for the purposes of, or in relation to, applications by students for VET student loans;

(b) processes or procedures for students to enrol in courses (including student entry procedures) and withdraw from courses;

(c) tuition protection, including requirements about offering replacement courses;

(d) student grievances;

(e) equal benefits and opportunities for students;

(f) review of decisions.

48(3)    
Subsection (2) does not limit the processes and procedures that may be required by the rules.

48(4)    
The rules may specify requirements to be met in establishing and operating the processes and procedures.

48(5)    
An approved course provider contravenes this subsection if the provider fails to comply with rules made under this section.

Civil penalty: 60 penalty units.

SECTION 49   PROVIDER MUST NOT USE BROKER OR AGENT  

49(1)    
An approved course provider contravenes this subsection if the provider enters into an arrangement (whether written or not) that provides for another person to do one or more of the following in relation to an approved course:

(a) enrol students, or accept applications for enrolment, in the course;

(c) provide information or advice in relation to VET student loans (however described) for the course;

(d) assist students to complete or submit applications for a VET student loan for the course;

(e) assist, or provide support for, students who could be eligible for a VET student loan for the course to complete any assessments required to show that students are academically suited to undertake the course.

Civil penalty: 60 penalty units.

49(2)    
Subsection (1) does not apply in relation to an arrangement that is:

(a) a contract of employment; or

(b) specified in the rules.

Note:

Employees of approved course providers will be covered by other requirements that apply to approved course providers.

SECTION 49A   VSL TUITION PROTECTION LEVY  

49A(1)    
An approved course provider to whom Part 5A applies must pay the following when it is due and payable by the provider:

(a) VSL tuition protection levy;

(b) any penalty for late payment of VSL tuition protection levy. Note 1:

VSL tuition protection levy is imposed by the VET Student Loans (VSL 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.

Note 2:

See section 66A for the providers to whom Part 5A applies.

49A(2)    
The rules 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 VSL tuition protection levy payable by a provider;

(b) when VSL tuition protection levy is due and payable;

(c) the issue of notices extending the time for payment of VSL tuition protection levy;

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

(e) to whom VSL tuition protection levy and any penalties for late payment are payable;

(f) the refund, remission or waiver of VSL tuition protection levy or penalties for late payment;

(g) the notional liability of the Commonwealth to pay VSL tuition protection levy;

(h) the review of decisions made under the rules in relation to the collection or recovery of VSL tuition protection levy;

(i) any other matters relating to the collection or recovery of VSL tuition protection levy.

Division 2 - Information  

SECTION 50   INFORMATION FOR STUDENTS  

50(1)    
The rules may require an approved course provider to do one or more of the following in relation to VET student loans or the operation of this Act:

(a) give particular information to students;

(b) give information to students in a particular way;

(c) give information to students at a particular time.

50(2)    
An approved course provider contravenes this subsection if the provider fails to comply with rules made under subsection (1).

Civil penalty: 60 penalty units.

50(3)    
An approved course provider commits an offence of strict liability if the provider fails to comply with rules made under subsection (1).

Penalty: 60 penalty units.

SECTION 51   RETAINING INFORMATION AND DOCUMENTS  

51(1)    
An approved course provider must retain documents and information:

(a) related to the operation of this Act; and

(b) specified by the rules.

51(2)    
The documents and information must be retained for:

(a) the period specified in the rules; or

(b) if no period is specified - 7 years.

51(3)    
An approved course provider contravenes this subsection if the provider fails to retain documents and information in accordance with this section.

Civil penalty: 60 penalty units.

51(4)    
An approved course provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

SECTION 52   ONGOING INFORMATION REQUIREMENTS  

52(1)    
The rules may set out ongoing information requirements for the purposes of ensuring that:

(a) approved course providers are complying with this Act: and

(b) the Secretary has access to information and documents related to the operation of this Act.

52(2)    
The ongoing information requirements may require an approved course provider to do one or more of the following:

(a) be audited in circumstances set out in the rules, including by a specified person, and provide reports of audits to the Secretary;

(b) provide the Secretary with specified information or documents, including in relation to the following:

(i) the provider's financial position;

(ii) courses of study provided by the provider and the delivery of those courses;

(iii) the provider's students (including information and documents relating to enrolment, attendance, completion rates, education outcomes and existing and projected enrolment numbers);

(iv) the administration and operation of the business of the provider;

(v) tuition fees charged by the provider;

(vi) the provider's plans for improving its business;

(vii) changes in the provider's key personnel;

(viii) changes in the provider's management or governance arrangements;

(ix) information the provider has collected for the purposes of, or in relation to, applications by students for VET student loans;

(x) tuition protection;

(c) notify the Secretary if the provider is not complying with this Act, or particular provisions of this Act;

(d) provide the information in a particular form, including as a statutory declaration.

52(3)    
Subsection (2) does not limit the ongoing information requirements.

52(4)    
An approved course provider contravenes this subsection if the provider fails to comply with the ongoing information requirements.

Civil penalty: 60 penalty units.

52(5)    
An approved course provider commits an offence of strict liability if the provider fails to comply with the ongoing information requirements.

Penalty: 60 penalty units.

SECTION 53   SECRETARY MAY REQUEST INFORMATION  

53(1)    
The Secretary may, by notice in writing, require an approved course provider to give the Secretary information or documents that relate to:

(a) the provision of vocational education and training by the provider; or

(b) the provider's compliance with this Act.

53(2)    
The informationor documents must be provided:

(a) in the form specified in the notice, which may be a statutory declaration; and

(b) in accordance with other requirements specified in the notice.

53(3)    
A notice under this section must not require the giving of information or documents that the provider is required to give to the Secretary under any other provision of this Act.

53(4)    
An approved course provider contravenes this subsection if the provider fails to comply with a notice given under this section.

Civil penalty: 60 penalty units.

53(5)    
An approved course provider commits an offence of strict liability if the provider fails to comply with a notice given under this section.

Penalty: 60 penalty units.

SECTION 54   DEALING WITH PERSONAL INFORMATION  

54(1)    
An approved course provider must comply with the Australian Privacy Principles in relation to personal information obtained for the purposes of this Act.

54(2)    
A failure to comply with subsection (1) constitutes an act or practice involving an interference with the privacy of the individual concerned for the purposes of section 13 of the Privacy Act 1988.

Note:

The act or practice may be the subject of a complaint under section 36 of that Act.

54(3)    
The 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 the student.

54(4)    
The provider must comply with any requirements set out in the rules relating to the management of personal information.

Division 3 - Fees  

SECTION 55   DETERMINING TUITION FEES  

55(1)    
An approved course provider must determine the tuition fees for each approved course offered by the provider for a particular period.

55(2)    
The rules may specify the following in relation to tuition fees for an approved course:

(a) matters to which an approved course provider must or must not have regard in determining tuition fees;

(b) goods or services that must not be covered by tuition fees;

(c) how and when tuition fees may be charged;

(d) how and when tuition fees may be varied.

55(3)    
An approved course provider contravenes this subsection if the provider fails to comply with the requirements of the rules in relation to tuition fees for approved courses.

Civil penalty: 120 penalty units.

SECTION 56   STUDENT NOT LIABLE FOR COVERED FEES  

56(1)    
If an approved course provider enrols a student in a course, the provider must give the student a written statement as to whether or not the enrolment is accepted on the basis that some or all of the tuition fees for the course will be covered by a VET student loan.

56(2)    
The statement must:

(a) be given in accordance with the rules; and

(b) if the enrolment is accepted on the basis that only some of the tuition fees for the course will be covered - show the amounts of the tuition fees that will, and will not, be covered by the VET student loan; and

(c) meet any other requirements set out in the rules.

56(3)    
Fees stated to be covered by a VET student loan are covered fees .

56(4)    
An approved course provider contravenes this subsection if the provider requires a student to pay covered fees.

Civil penalty: 120 penalty units.

SECTION 57  

57   PUBLISHING TUITION FEES  
An approved course provider contravenes this section if:

(a) the provider enrols a student in a course on the basis that some or all of the tuition fees for the course are covered fees; and

(b) on the day before the student is enrolled, the tuition fees for the course were not available on the provider's website in a way that was readily accessible by the public.

Civil penalty: 60 penalty units.

Division 4 - Census days  

SECTION 58   DETERMINING AND PUBLISHING CENSUS DAYS  

58(1)    
This section applies if an approved course provider offers an approved course for a particular period.

58(2)    
The provider must determine the date or dates for the course by which a student's enrolment in the course can be cancelled without the student incurring tuition fees for the course or a part of the course.

58(3)    
A date by which enrolment may be cancelled without incurring tuition fees for the course or a part of the course is a census day.

58(4)    
A census day must be:

(a) determined in accordance with any requirements set out in the rules; and

(b) published in accordance with any requirements set out in the rules.

58(5)    
Once published, the provider must not vary a census day otherwise than in accordance with the rules.

58(6)    
An approved course provider contravenes this subsection if the provider fails to determine or publish a census day in accordance with the rules.

Civil penalty: 60 penalty units.

58(7)    
An approved course provider contravenes this subsection if the provider varies a census day other than in accordance with the rules.

Civil penalty: 60 penalty units.

SECTION 59   NO PENALTY FOR CANCELLING ENROLMENT BEFORE CENSUS DAY  

59(1)    
An approved course provider contravenes this subsection if:

(a) the provider enrols a student in a course on the basis that some or all of the tuition fees for the course are covered fees; and

(b) on or before a census day for the course, the student requests in writing that the provider cancel the enrolment; and

(c) the provider fails to cancel the enrolment before the end of the census day.

Civil penalty: 120 penalty units.

59(2)    
An approved course provider contravenes this subsection if:

(a) the provider enrols a student in a course on the basis that some or all of the tuition fees for the course are covered fees; and

(b) on or before the last census day for the course, the student requests in writing that the provider cancel the enrolment; and

(c) the provider charges a fee (however described) for cancelling the enrolment.

Civil penalty: 120 penalty units.

59(3)    
An approved course provider contravenes this subsection if:

(a) the provider enrols a student in a course on the basis that some or all of the tuition fees for the course are covered fees; and

(b) the provider engages in conduct that:

(i) prevents the student from cancelling the enrolment; or

(ii) unnecessarily inconveniences the student in relation to cancelling the enrolment.

Civil penalty: 120 penalty units.

Division 5 - Marketing  

SECTION 60  

60   MISREPRESENTING VET STUDENT LOANS  
An approved course provider contravenes this section if the provider represents, whether by publishing or otherwise, that a VET student loan:

(a) is not a loan; or

(b) does not have to be repaid.

Civil penalty: 240 penalty units.

SECTION 61   OFFERING CERTAIN INDUCEMENTS  

61(1)    
An approved course provider contravenes this subsection if:

(a) the provider:

(i) offers or provides a benefit; or

(ii) causes a benefit to be offered or provided; and

(b) the benefit would be reasonably likely to induce a person to apply for a VET student loan for a course.

Civil penalty: 120 penalty units.

61(2)    
Subsection (1) does not apply in relation to a benefit specified in the rules.

SECTION 62   ENGAGING IN COLD-CALLING  

62(1)    
An approved course provider contravenes this subsection if:

(a) the provider cold-calls another person to market, advertise or promote a course; and

(b) when doing so, or as a result of doing so, the provider mentions the possible availability of a VET student loan (however described) for students undertaking the course.

Civil penalty: 60 penalty units.

62(2)    
Cold-calling includes making unsolicited contact with a student:

(a) in person; or

(b) by telephone, email or other form of electronic communication.

Note:

Student includes a prospective student: see section 6.

62(3)    
The rules may set out conduct that is taken to be cold-calling .

SECTION 63   USE OF THIRD PARTY CONTACT LISTS  

63(1)    
An approved course provider contravenes this subsection if:

(a) the provider receives a student's contact details from another person; and

(b) the provider contacts the student to market, advertise or promote a course, or enrol the student in a course; and

(c) when doing so, or as a result of doing so, the provider mentions the possible availability of a VET student loan (however described) for students undertaking the course.

Civil penalty: 60 penalty units.

63(2)    
Subsection (1) does not apply in circumstances specified in the rules.

SECTION 64   OTHER MARKETING REQUIREMENTS  

64(1)    
The rules may set out requirements in relation to marketing of courses in circumstances where tuition fees for the courses could be covered by VET student loans.

64(2)    
An approved course provider contravenes this subsection if the provider fails to comply with rules made for the purposes of subsection (1).

Civil penalty: 60 penalty units.

Division 6 - Personal liability for executive officers  

SECTION 65   PERSONAL LIABILITY FOR EXECUTIVE OFFICERS  

65(1)    
An executive officer of an approved course provider commits an offence if:

(a) the provider commits an offence against this Act; and

(b) the officer knew that the offence would be committed; and

(c) the officer was in a position to influence the conduct of the provider in relation to the commission of the offence; and

(d) the officer failed to take all reasonable steps to prevent the commission of the offence.

65(2)    
The maximum penalty for an offence against subsection (1) is one-fifth of the maximum penalty that could be imposed for the offence committed by the provider.

65(3)    
An executive officer of an approved course provider contravenes this subsection if:

(a) the provider contravenes a civil penalty provision of this Act; and

(b) the officer knew that the contravention would occur; and

(c) the officer was in a position to influence the conduct of the provider in relation to the contravention; and

(d) the officer failed to take all reasonable steps to prevent the contravention.

65(4)    
The maximum civil penalty for a contravention of subsection (3) is one-fifth of the maximum penalty that could be imposed for the contravention of the civil penalty provision by the provider.

SECTION 66   REASONABLE STEPS TO PREVENT OFFENCE OR CONTRAVENTION  

66(1)    
For the purposes of section 65, in determining whether an executive officer of an approved course provider failed to take all reasonable steps to prevent the commission of an offence, or the contravention of a civil penalty provision, a court is to have regard to:

(a) what action (if any) the officer took towards ensuring that the provider's employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Act, in so far as those requirements affected the employees, agents or contractors concerned; and

(b) what action (if any) the officer took when he or she became aware of the offence or contravention.

66(2)    
This section does not limit the matters to which the court may have regard.

PART 5A - TUITION PROTECTION  

Division 1 - Preliminary  

SECTION 66A   APPLICATION OF THIS PART  

66A(1)    
This Part applies to approved course providers other than:

(a) Table A providers; or

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

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

Note:

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

SECTION 66B   WHEN AN APPROVED COURSE PROVIDER DEFAULTS IN RELATION TO A STUDENT  

66B(1)    
An approved course provider defaults in relation to a student if:

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

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

(c) either:

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

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

66B(2)    
An approvedcourse provider defaults in relation to a student if:

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

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

(c) either:

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

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

66B(3)    
An approved course provider defaults in relation to a student if circumstances prescribed by the rules apply in relation to the provider and the student.

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

SECTION 66C   APPROVED COURSE PROVIDERS MUST GIVE NOTICE OF DEFAULT TO VSL TUITION PROTECTION DIRECTOR  
Application of section

66C(1)    
This section applies if an approved course provider defaults in relation to a student.

Notifying the VSL Tuition Protection Director of default

66C(2)    
The approved course provider must, within 24 hours of the default occurring, give written notice to the VSL Tuition Protection Director of the circumstances of the default.

Notifying the VSL Tuition Protection Director of details of default

66C(3)    
The approved course provider must, within 3 business days of the default occurring, give a written notice to the VSL Tuition Protection Director specifying:

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

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

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

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

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

(b) any other matter prescribed by the rules.

66C(4)    
If requested in writing by the VSL Tuition Protection Director, the approved course provider must give to the Director either of the following for a student in relation to whom the provider has defaulted:

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

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

Notice requirements

66C(5)    
A notice given under subsection (2) or (3) must comply with any requirements prescribed by the rules for the purposes of this subsection.

Civil penalty

66C(6)    
An approved course provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

Offence

66C(7)    
An approved course provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

SECTION 66D   APPROVED COURSE PROVIDERS MUST GIVE NOTICE OF DEFAULT TO AFFECTED STUDENTS  
Application of section

66D(1)    
This section applies if an approved course provider defaults in relation to a student.

Notifying students of default

66D(2)    
The approved course provider must, within 24 hours of the default occurring, give written notice of the default to the students in relation to whom the provider has defaulted.

Notice requirements

66D(3)    
A notice given under subsection (2) must comply with any requirements prescribed by the rules for the purposes of this subsection.

Civil penalty

66D(4)    
An approved course provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

Offence

66D(5)    
An approved course provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

SECTION 66E   STUDENT PLACEMENT SERVICE  
VSL Tuition Protection Director must decide

66E(1)    
If an approved course provider defaults in relation to a student, the VSL Tuition Protection Director must decide:

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

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

Matters relating to whether a course is a suitable replacement course

66E(2)    
In deciding whether the VSL Tuition Protection Director is satisfied that there is a suitable replacement course for a student, the Director must have regard to the following matters:

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

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

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

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

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

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

(e) any other matters prescribed by the rules.

Suitable replacement course available

66E(3)    
If paragraph (1)(a) applies, the VSL Tuition Protection Director must give a written notice to the student that includes the following:

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

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

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

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

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

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

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

(h) any other matters prescribed by the rules.

No suitable replacement course available

66E(4)    
If paragraph (1)(b) applies, the VSL Tuition Protection Director must give a written notice to the student that includes the following:

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

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

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

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

SECTION 66F   OBLIGATIONS OF PROVIDERS TO PROVIDE INFORMATION ABOUT REPLACEMENT COURSES  

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

66F(2)    
The information must be provided:

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

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

Civil penalty

66F(3)    
An approved course provider contravenes this subsection if:

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

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

Civil penalty: 60 penalty units.

Offence

66F(4)    
An approved course provider commits an offence of strict liability if:

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

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

Penalty: 60 penalty units.

SECTION 66G   OBLIGATIONS OF REPLACEMENT PROVIDER  
Application of section

66G(1)    
This section applies if a student accepts an offer of a place in a replacement course.

Notice of acceptance

66G(2)    
The approved course provider who provides the replacement course must give written notice of the acceptance to the VSL Tuition Protection Director within 14 days of the acceptance.

Course credits must be granted etc.

66G(3)    
The approved course provider who provides the replacement course must ensure that the student:

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

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

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

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

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

Civil penalty

66G(4)    
An approved course provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

Offence

66G(5)    
An approved course provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

SECTION 66H   OBLIGATIONS WHERE THERE IS NO REPLACEMENT COURSE  

66H(1)    
This section applies if:

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

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

66H(2)    
The VSL Tuition Protection Director must give a written notice to the Secretary of that fact.

66H(3)    
The VSL Tuition Protection Director must give a written notice to the provider:

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

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

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

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

Note:

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

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

Division 1 - VSL Tuition Protection Fund  

SECTION 66J   NAME OF FUND  

66J(1)    
The VSL Tuition Protection Fund is established by this section.

66J(2)    
The VSL Tuition Protection Fund is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.

SECTION 66K  

66K   CREDITS TO THE VSL TUITION PROTECTION FUND  
There must be credited to the VSL Tuition Protection Fund amounts equal to the following:

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

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

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

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

(e) each amount received by the Commonwealth for the purposes of the VSL Tuition Protection Fund. Note 1:

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

Note 2:

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

SECTION 66L   PURPOSES OF THE VSL TUITION PROTECTION FUND  

66L(1)    
The purposes of the VSL Tuition Protection Fund are as follows:

(a) making payments in connection with tuition protection;

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

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

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

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

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

Note:

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

66L(2)    
The rules may, for the purposes of paragraph (1)(a), make provision in relation to such payments, including in relation to the following:

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

(b) amounts of different kinds of payments;

(c) methods for calculating different kinds of payments.

Note:

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

66L(3)    
The purposes in subsection (1) do not include paying or discharging any costs, expenses or other obligations associated with services provided to the VSL Tuition Protection Director by any employee or officer of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013).

Division 2 - VSL Tuition Protection Director  

SECTION 66M   VSLTUITION PROTECTION DIRECTOR  

66M(1)    
There is to be a VSL Tuition Protection Director.

66M(2)    
The office of VSL Tuition Protection Director is to be held by the person who holds the office of TPS Director under section 54A of the Education Services for Overseas Students Act 2000.

Note:

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

66M(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.

SECTION 66N   FUNCTIONS OF THE VSL TUITION PROTECTION DIRECTOR  

66N(1)    
The VSL Tuition Protection Director has the following functions:

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

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

(c)    reporting to the Minister on:

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

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

(d)    

managing the VSL Tuition Protection Fund in a way that ensures that it is able to meet all its liabilities from time to time;

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

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

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

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

66N(2)    
The VSL Tuition Protection Director has power to do all things necessary or convenient to be done for, or in connection with, the performance of the Director's functions.

SECTION 66P   ADMINISTRATIVE PROVISIONS RELATING TO THE VSL TUITION PROTECTION DIRECTOR  

66P(1)    
Each provision of the Education Services for Overseas Students Act 2000 specified in column 1 of an item in the following table applies in relation to the VSL Tuition Protection Director in accordance with columns 2 and 3 of the item.

Administrative provisions relating to the VSL 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 VSL 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	VSL Tuition Protection Director
2	A provision covered by subsection (2) of this section	the regulations	the rules
3	A provision covered by subsection (2) of this section	the Department	the Department administered by the Minister administering this Act
4	Section 54D	the Minister	the Education Minister
5	Section 54E	the Minister	the Education Minister
6	Section 54F	the Minister	the Minister administering this Act and the Education Minister
7	Section 54J	the Minister	the Education Minister

66P(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.

66P(3)    
For the purposes of section 54E of the Education Services for Overseas Students Act 2000, the Education Minister is taken to have given approval to the TPS Director to engage in paid employment as the VSL Tuition Protection Director.

66P(4)    
The Education Minister may terminate the appointment of the TPS Director if:

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

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

66P(5)    
In this section:

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

Division 3 - VSL Tuition Protection Fund Advisory Board  

SECTION 66Q   ESTABLISHMENT AND MEMBERSHIP  

66Q(1)    
The VSL Tuition Protection Fund Advisory Board is established by this section.

66Q(2)    
The members of the VSL Tuition Protection Fund Advisory Board are the members of the TPS Advisory Board appointed under section 55D of the Education Services for Overseas Students Act 2000.

66Q(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.

66Q(4)    
The Chair of the VSL Tuition Protection Fund Advisory Board is the Chair ofthe TPS Advisory Board appointed under subsection 55C(3) of the Education Services for Overseas Students Act 2000.

66Q(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.

66Q(6)    
The Deputy Chair of the VSL Tuition Protection Fund Advisory Board is the Deputy Chair of the TPS Advisory Board appointed under subsection 55C(3) of the Education Services for Overseas Students Act 2000.

66Q(7)    
Despite subsection 55C(2) of the Education Services for Overseas Students Act 2000, a person is eligible to be appointed to the TPS Advisory Board if the Education Minister is satisfied that the person has qualifications or experience that the Education Minister considers relevant to the performance of the VSL Tuition Protection Fund Advisory Board's functions.

SECTION 66R  

66R   FUNCTION OF THE VSL TUITION PROTECTION FUND ADVISORY BOARD  
The VSL Tuition Protection Fund Advisory Board's function is, either on its own initiative or at the request of the VSL Tuition Protection Director, to provide advice and make recommendations to the Director in relation to the making of a legislative instrument each year under section 12 of the VET Student Loans (VSL Tuition Protection Levy) Act 2019.

SECTION 66S   ADMINISTRATIVE PROVISIONS RELATING TO THE VSL TUITION PROTECTION FUND ADVISORY BOARD  

66S(1)    
Each provision of the Education Services for Overseas Students Act 2000 specified in column 1 of an item in the following table applies in relation to the VSL Tuition Protection Fund Advisory Board in accordance with columns 2 and 3 of the item.

Administrative provisions relating to the VSL 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 VSL 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 VSL Tuition Protection Fund Advisory Board
2	A provision covered by subsection (2) of this section	the Chair	the Chair of the VSL Tuition Protection Fund Advisory Board
3	A provision covered by subsection (2) of this section	the Deputy Chair	the Deputy Chair of the VSL Tuition Protection Fund Advisory Board
4	A provision covered by subsection (2) of this section	a Board member	a member of the VSL Tuition Protection Fund Advisory Board
5	A provision covered by subsection (2) of this section	the Board members	the members of the VSL 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 rules
8	Paragraph 55L(2)(d)	section 55H	section 55H as applied to a member of the VSL Tuition Protection Fund Advisory Board by this section
9	Paragraph 55L(2)(d)	section 55J	section 55J as applied to a member of the VSL Tuition Protection Fund Advisory Board by this section
10	Paragraph 56C(2)(a)	section 55J	section 55J as applied to a member of the VSL Tuition Protection Fund Advisory Board by this section

66S(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.

PART 6 - RE-CREDITING HELP BALANCES  

Division 1 - General  

SECTION 67  

67   WHEN HELP BALANCE MAY BE RE-CREDITED  

A student's HELP balance may be re-credited under this Part only if an amount of a VET student loan has been used to pay tuition fees for the student for a course, or a part of a course.

Note 1:

If the student's HELP balance cannot be re-credited under this Part because of this provision, the Secretary may decide not to pay the loan amount for the student for the course: see section 20.

Note 2:

If a student's HELP balance is re-credited under Division 2 or 3 of this Part, the student's VETSL debt is taken to be remitted to the extent to which the debt relates to the loan amount concerned: see section 23BA. (For remission of debts incurred before 1 July 2019, see section 137-19 of the Higher Education Support Act 2003).

Division 2 - Re-crediting by course provider  

SECTION 68   SPECIAL CIRCUMSTANCES  

68(1)    

The course provider must, on the Secretary's behalf, re-credit a student's HELP balance if:

(a) the student applies to the provider in writing for the re-credit; and

(b) the application is made within 12 months after the census day for the course, or the part of the course; and

(c) the provider is satisfied that special circumstances prevented, or will prevent, the student from completing the requirements for the course, or the part of the course.

68(2)    
The course provider may extend the period for making the application mentioned in paragraph (1)(b).

68(3)    
Circumstances are special circumstances if they:

(a) are beyond the student's control; and

(b) do not make their full impact on the student until on or after the census day for the course, or the part of the course; and

(c) make it impracticable for the student to complete the requirements for the course, or the part of the course, during the student's enrolment in the course, or the part of the course.

68(4)    
The amount re-credited must equal the amount of the VET student loan that has been used to pay tuition fees for the student for the course, or the part of a course.

68(5)    
The course provider must, as soon as practicable:

(a) consider an application for a student's HELP balance to be re-credited under this section; and

(b) notify the student of the provider's decision on the application.

The notice must include a statement of the reasons for the decision.

SECTION 69  

69   COURSE NOT PROVIDED TO COMPLETION  
(Repealed by No 111 of 2019)

SECTION 70  

70   SECRETARY MAY ACT IN PLACE OF PROVIDER  

The Secretary may re-credit a student's HELP balance in accordance with this Division if:

(a) a course provider is unable to act under this Division or is being wound up or has been dissolved; or

(b) a course provider has failed to act under this Division and the Secretary is satisfied that the failure is unreasonable.

Division 3 - Re-crediting by Secretary other than on discharge of debt  

SECTION 71   WHEN SECRETARY MAY RE-CREDIT HELP BALANCE  

71(1)    

The Secretary may re-credit the student's HELP balance if the Secretary is satisfied that the course provider, or a person acting on the provider's behalf, engaged in unacceptable conduct in relation to the student's application for the VET student loan.

71(2)    
Unacceptable conduct , in relation to an application for a VET student loan, has the meaning given by the rules.

71(3)    

The Secretary may re-credit the student's HELP balance if the Secretary is satisfied of one or more of the following:

(a) the student is not an eligible student;

(b) the student is not a genuine student;

(c) the student does not have a tax file number;

(d) the student does not have a student identifier.

71(4)    

The Secretary may re-credit the student's HELP balance if the Secretary is satisfied that:

(a) the provider has failed to comply with this Act; and

(b) the failure has adversely affected the student.

71(5)    
The amount re-credited must not exceed the amount of the VET student loan that has been used to pay tuition fees for the student for the course, or the part of the course.

71(6)    
This section applies whether or not the student applies for the re-credit.

SECTION 72   STUDENT MAY APPLY FOR RE-CREDITING BY SECRETARY  

72(1)    

A student may apply to the Secretary for the student's HELP balance to be re-credited under section 71.

72(2)    
The application must be in writing and meet any requirements set out in the rules.

SECTION 72A   WHEN SECRETARY MUST RE-CREDIT HELP BALANCE  

72A(1)    
The Secretary must re-credit a student's HELP balance if:

(a) the student has not completed the requirements for the course, or the part of the course, because the provider defaulted in relation to the student; and

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

Note:

A course provider may be required to pay an amount to the Commonwealth as a result of re-crediting under this section: see section 22. That amount may be debited from the VSL Tuition Protection Fund: see section 66L. If the amount is debited from the Fund, a later payment of the amount by the provider is credited to the Fund: see section 66K.

72A(2)    
The amount re-credited must equal the loan amount that has been used to pay tuition fees for the student for the affected part.

72A(3)    
In determining the amount to be re-credited for the purposes of subsection (2), the Secretary must take into account any submissions received by the VSL Tuition Protection Director under subsection 66H(3) in relation to the amount to be re-credited.

72A(4)    
The Secretary must give the student and the provider written notice of the Secretary's decision in relation to the re-credited amount. The notice must be given as soon as practicable after the decision is made.

SECTION 73   SECRETARY MUST INVITE SUBMISSIONS BEFORE RE-CREDITING  

73(1)    

Before re-crediting a student's HELP balance under this Division (other than section 72A), the Secretary must give the course provider concerned notice in writing:

(a) stating that the Secretary is considering the re-credit; and

(b) stating the reasons why the Secretary is considering the re-credit; and

(c) inviting the provider to make written submissions to the Secretary about the re-credit within 28 days.

73(2)    

In deciding whether to re-credit the HELP balance, the Secretary must take into account any submissions received within the 28 day period.

73(3)    
The Secretary must give the student and the provider written notice of the Secretary's decision and the reasons for the decision. The notice must be given as soon as practicable after the decision is made.

Division 4 - Re-crediting by Secretary on discharge of debt  

SECTION 73A   WHEN SECRETARY MUST RE-CREDIT HELP BALANCE - DISCHARGE OF DEBT  

73A(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 Part 3A, 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.

73A(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.

Note:

Re-crediting under this Division does not have the same effect as re-crediting under Division 2 or 3 (re-crediting under those Divisions results in remission of the debt concerned: see section 23BA). For debts incurred before 1 July 2019, see section 137-19 of the Higher Education Support Act 2003 (which applies unless an amount is re-credited under section 128-25 of that Act).

PART 7 - REVIEW OF DECISIONS  

Division 1 - Reviewable decisions  

SECTION 74  

74   REVIEWABLE DECISIONS  

The following table sets out:

(a) the reviewable decisions under this Act; and

(b) the decision maker for each of those decisions.

Reviewable VET decisions
Item	Decision	Provision under which decision is made	Decision maker
1	A decision to approve or not to approve a VET student loan	Section 18	the Secretary
1A	A decision to defer or refuse to defer the making of an assessment	Section 23EG	the Commissioner
1B	A decision to amend or refuse to amend an assessment	Section 23EH	the Commissioner
2	A decision to revoke the approval of an approved course provider	Section 36	the Secretary
2A	A decision that the VSL Tuition Protection Director is satisfied that there are one or more suitable replacement courses for a student	paragraph 66E(1)(a)	the VSL Tuition Protection Director
2B	A decision that the VSL Tuition Protection Director is not satisfied that there is a suitable replacement course for a student	paragraph 66E(1)(b)	the VSL Tuition Protection Director
3	A decision not to re-credit a student's HELP balance	Section 68 (special circumstances)	the course provider to whom the application was made
4	A decision not to re-credit a student's HELP balance	Section 68 (special circumstances)	the Secretary ( in accordance with section 70)
5	A decision:	Section 71	the Secretary
	(a)	to re-credit a student's HELP balance; or	(unacceptable conduct)
	(b)	not to re-credit a student's HELP balance

SECTION 75  

75   WHEN APPLICATIONS ARE TAKEN TO BE REFUSED  
The decision maker is taken to have decided to refuse an application if:

(a) a person makes an application for a reviewable decision to be made; and

(b) the decision maker is required to notify the person of the decision; and

(c) the person is not notified:

(i) within the required time; or

(ii) if there is no required time - within 2 months after the application is made.

Division 2 - Reconsideration of reviewable decisions  

SECTION 76   APPLICATION FOR RECONSIDERATION  

76(1)    
A person whose interests are affected by a reviewable decision may request the decision maker to reconsider the decision.

76(2)    
The request must be made in writing and given to the decision maker within 28 days after the day on which the person was notified of the decision, or within such longer period as the decision maker allows.

76(3)    
The request must set out the reasons for requesting the reconsideration.

76(4)    
After receiving the request, the decision maker 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.

76(5)    
The decision maker's decision (the reconsidered decision ) to confirm, vary or set aside the reviewable decision takes effect:

(a) on the day specified in the reconsidered decision; or

(b) if a day is not specified - on the day on which the reconsidered decision is made.

76(6)    
The decision maker must give the person written notice of the reconsidered decision.

76(7)    
The notice:

(a) must be given within a reasonable period after the reconsidered decision is made; and

(b) must contain a statement of the reasons for the reconsidered decision.

76(8)    
The decision maker is taken to have confirmed the reviewable decision if the decision maker does not give notice of the reconsidered decision to the person within 45 days after receiving the person's request.

SECTION 77   RECONSIDERATION WITHOUT APPLICATION  

77(1)    
The decision maker may reconsider a reviewable decision if the decision maker is satisfied that there is sufficient reason to do so.

77(2)    
The decision maker may reconsider the decision whether or not:

(a) an application for reconsideration of the decision has been made under section 76; or

(b) the decision has been reconsidered under section 76; or

(c) an application has been made under section 80 for review of the reconsidered decision by the Administrative Appeals Tribunal.

77(3)    
After reconsidering the reviewable 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.

77(4)    
The decision maker's decision (the reconsidered decision ) to confirm, vary or set aside the reviewable decision takes effect:

(a) on the day specified in the reconsidered decision; or

(b) if a day is not specified - on the day on which the reconsidered decision is made.

77(5)    
The decision maker must give written notice of the reconsidered decision to the person to whom the decision relates.

77(6)    
The notice:

(a) must be given within a reasonable period after the reconsidered decision is made; and

(b) must contain a statement of the reasons for the reconsidered decision.

SECTION 78   RECONSIDERATION BY DELEGATES OF THE SECRETARY OR COMMISSIONER  

78(1)    

A delegate of the Secretary or Commissioner must not reconsider a reviewable decision made by the delegate.

78(2)    

A reviewable decision made by a delegate of the Secretary or Commissioner may be reconsidered by another delegate if, and only if, the other delegate:

(a) was not involved in making the decision; and

(b) occupies a position at a level not lower than that of the delegate who made the decision.

SECTION 78A   RECONSIDERATION BY DELEGATES OF THE VSL TUITION PROTECTION DIRECTOR  

78A(1)    
A delegate of the VSL Tuition Protection Director must not reconsider a reviewable decision made by the delegate.

78A(2)    
A reviewable decision made by a delegate of the VSL Tuition Protection Director may be reconsidered by another delegate if, and only if, the other delegate:

(a) was not involved in making the decision; and

(b) occupies a position at a level not lower than that of the delegate who made the decision.

SECTION 79   APPROVED COURSE PROVIDERS MUST HAVE REVIEW OFFICERS  

79(1)    
An approved course provider must appoint an officer to reconsider reviewable decisions made by the provider.

79(2)    
The officer must be appointed by:

(a) the chief executive officer of the provider; or

(b) a delegate of the chief executive officer of the provider.

79(3)    
The officer must not reconsider a decision if the officer:

(a) was involved in making the decision; or

(b) occupies a position at a level lower than that of the person who made the decision.

SECTION 80   REVIEW BY THE AAT  

80(1)    
Applications may be made to the Administrative Appeals Tribunal for the review of reconsidered decisions that have been made under section 76 or 77.

80(2)    
For the purposes of the Administrative Appeals Tribunal Act 1975 as it applies in relation to a reconsidered decision under section 18, 68 or 71 of this Act, the student concerned is taken to be the only person whose interests are affected by the decision.

80(3)    
Despite subsection (1), an application cannot be made for the review of a decision made under paragraph 66E(1)(a) or (b) (about suitable replacement courses).

Division 3 - Reconsideration of other decisions  

SECTION 81   RECONSIDERATION OF OTHER DECISIONS  

81(1)    
A person who makes a decision (the initial decision ) under this Act other than a reviewable decision may reconsider the decision if the person is satisfied that there is sufficient reason to do so.

81(2)    
After reconsidering the initial decision, the decision maker must:

(a) confirm the initial decision; or

(b) vary the initial decision; or

(c) set the initial decision aside and substitute a new decision.

81(3)    
The decision maker's decision (the reconsidered decision ) to confirm, vary or set aside the initial decision takes effect:

(a) on the day specified in the reconsidered decision; or

(b) if a day is not specified - on the day on which the reconsidered decision is made.

81(4)    
The decision maker must give written notice of the reconsidered decision to the person to whom the decision relates.

81(5)    
The notice:

(a) must be given within a reasonable period after the reconsidered decision is made; and

(b) must contain a statement of the reasons for the reconsidered decision.

PART 8 - REGULATORY POWERS  

SECTION 82   MONITORING POWERS  

82(1)    
This Act 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 this Act has been complied with. It includes powers of entry and inspection.

82(2)    
Information given in compliance or purported compliance with a provision of this Act 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.

82(3)    
For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Act:

(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 an NVETR investigator, the National VET Regulator is the relevant chief executive; and

(f)    

each of the following is a relevant court:

(i) the Federal Court;

(ii) the Federal Circuit and Family Court of Australia (Division 2);

(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

82(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.

SECTION 83   INVESTIGATION POWERS  

83(1)    
A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

(a)    an offence provision of this Act; or

(b)    a civil penalty provision of this Act; or

(c)    an offence against the Crimes Act 1914 or the Criminal Code that relates to this 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.

83(2)    
For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to this Act:

(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 an NVETR investigator, the National VET Regulator is the relevant chief executive; and

(f)    

each of the following is a relevant court:

(i) the Federal Court;

(ii) the Federal Circuit and Family Court of Australia (Division 2);

(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

83(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.

SECTION 84   CIVIL PENALTY PROVISIONS  

84(1)    
Each civil penalty provision of this Act 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.

84(2)    
For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to this Act:

(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 of the following is a relevant court:

(i) the Federal Court;

(ii) the Federal Circuit and Family Court of Australia (Division 2);

(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

84(3)    
For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to Part 5A and section 104A of this Act, the VSL Tuition Protection Director is an authorised applicant.

SECTION 85   INFRINGEMENT NOTICES  

85(1)    
The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:

(a)    an offence provision of this Act;

(b)    a civil penalty provision of this Act.

Note:

Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

85(2)    
For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to this Act:

(a)    each of the following is an infringement officer:

(i) an NVETR staff member who is an SES employee or an acting SES employee;

(ii) an NVETR staff member 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 National VET Regulator; and

(ii) for an infringement notice given by an infringement officer covered by subparagraph (a)(iii) - the Secretary.

85(3)    
For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to Part 5A and section 104A of this Act, the VSL Tuition Protection Director:

(a)    is an infringement officer; and

(b)    is the relevant chief executive.

SECTION 86   ENFORCEABLE UNDERTAKINGS  

86(1)    
The provisions of this Act 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.

86(2)    
For the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to this Act:

(a)    each of the following is an authorised person:

(i) the Secretary;

(ii) an SES employee, or an acting SES employee, in the Department; and

(b)    

each of the following is a relevant court:

(i) the Federal Court;

(ii) the Federal Circuit and Family Court of Australia (Division 2);

(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

SECTION 87   INJUNCTIONS  

87(1)    
The provisions of this Act 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.

87(2)    
For the purposes of Part 7 of the Regulatory Powers Act as it applies in relation to this Act:

(a)    each of the following is an authorised person:

(i) the Secretary;

(ii) an SES employee, or an acting SES employee, in the Department; and

(b)    

each of the following is a relevant court:

(i) the Federal Court;

(ii) the Federal Circuit and Family Court of Australia (Division 2);

(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

SECTION 88   APPOINTMENT OF INVESTIGATORS  

88(1)    
The Secretary may, in writing, appoint a person as a Departmental investigator .

88(2)    

The National VET Regulator may, in writing, appoint an NVETR staff member as an NVETR investigator .

88(3)    
A person must not be appointed as a Departmental investigator, or an 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.

88(4)    
A Departmental investigator, and an NVETR investigator, must, in exercising powers as such, comply with any directions of the appointer.

SECTION 89   DELEGATION OF REGULATORY POWERS  

89(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, to an SES employee, or an acting SES employee, in the Department.

89(1A)    
The VSL 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 5A and section 104A of this Act, to an SES employee, or an acting SES employee, in:

(a)    the Department; or

(b)    the Department administered by the Education Minister.

89(2)    

The National VET Regulator may, in writing, delegate his or her powers and functions under the Regulatory Powers Act as it applies in relation to this Act, and under section 88, to an NVETR staff member 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.

89(3)    
A person exercising powers or performing functions under a delegation under subsection (1) or (2) must comply with any directions of the delegator.

89(4)    
A person must not exercise powers or perform functions under a delegation under subsection (1) or (2) in relation to an infringement notice given by the person.

SECTION 90  

90   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.

PART 9 - USE OF INFORMATION  

Division 1 - Authorised use and disclosure of information  

SECTION 91  

91   USE AND DISCLOSURE BY COMMONWEALTH OFFICERS  
A Commonwealth officer may use or disclose VET information if the information is used or disclosed for the purposes of:

(a) this Act; or

(b) the Higher Education Support Act 2003.

SECTION 92   USE AND DISCLOSURE BY CERTAIN VET OFFICERS  

92(1)    
Each of the following VET officers may use VET information in his or her capacity as such an officer:

(a) an officer of a Tertiary Admission Centre;

(b) an officer of an approved course provider;

(c) (Repealed by No 111 of 2019)

(d) an officer of an approved external dispute resolution scheme operator.

92(2)    
The officer may disclose VET information to another VET officer if the officer believes on reasonable grounds that the disclosure is reasonably necessary for the purposes of exercising powers, or performing functions or duties, in relation to this Act.

SECTION 93   DISCLOSURE TO CERTAIN AGENCIES, BODIES OR PERSONS  

93(1)    
The Secretary may disclose VET information to an agency, body or person mentioned in subsection (2) if the Secretary believes on reasonable grounds that the disclosure is reasonably necessary for the purposes of the exercise of the powers, or the performance of the functions or duties, of the agency, body or person.

93(2)    
The agencies, bodies and persons to which the Secretary may disclose VET information under this section are the following:

(a) TEQSA;

(b) the National VET Regulator;

(c) an agency or authority of a State or Territory responsible for regulating vocational education or vocational training in the State or Territory;

(d) the Australian Competition and Consumer Commission;

(e) an approved external dispute resolution scheme operator;

(f) an agency that is administered by a Minister who administers any of the following:

(i) the Human Services (Centrelink) Act 1997;

(ii) the Social Security Act 1991;

(iii) the Student Assistance Act 1973;

(iv) a law of the Commonwealth prescribed by the rules for the purposes of this paragraph.

93(3)    

If VET information is disclosed to an agency, body or person under subsection (1), the agency, body or person may use the information for the purposes of exercising powers, or performing functions or duties, of the agency, body or person.

SECTION 94   DISCLOSURE FOR PURPOSES OF LAW ENFORCEMENT  

94(1)    
The Secretary may disclose VET information to one or more of the following if the Secretary believes on reasonable grounds that the disclosure of the information is necessary for an enforcement related activity (within the meaning of the Privacy Act 1988):

(a) a Department, agency or authority of the Commonwealth, a State or a Territory;

(b) an enforcement body (within the meaning of the Privacy Act 1988).

94(2)    
The VSL Tuition Protection Director may disclose VET information to one or more of the following if the Director believes on reasonable grounds that the disclosure of the information is necessary for an enforcement related activity (within the meaning of the Privacy Act 1988):

(a) a Department, agency or authority of the Commonwealth, a State or a Territory;

(b) an enforcement body (within the meaning of the Privacy Act 1988).

SECTION 95   DISCLOSURE TO OTHER BODIES FOR PERMITTED PURPOSES  

95(1)    
The Secretary may disclose VET information to an agency, body or person referred to in subsection (2) for any of the following purposes (a permitted purpose ):

(a) improving the provision of vocational education and training;

(b) research relating to the provision of vocational education and training, including research relating to:

(i) quality assurance; or

(ii) planning the provision of vocational education and training.

95(2)    
The agencies, bodies and persons to which the Secretary may disclose VET information under this section are the following:

(a) a State or Territory agency;

(b) an approved course provider;

(c) a person who performs services for or on behalf of an approved course provider;

(d) a body or association determined, by legislative instrument, by the Minister for the purposes of this paragraph.

95(3)    
However, if the information was provided by an approved course provider, the Secretary may only disclose the information to a person referred to in paragraph (2)(b), (c) or (d) if the provider consents to that disclosure.

SECTION 96  

96   DISCLOSURE OF PUBLICLY AVAILABLE INFORMATION  
A person may use or disclose VET information if the information has already been lawfully made available to the public.

SECTION 97   COMMISSIONER MAY DISCLOSE VET INFORMATION  

97(1)    
The Commissioner may disclose VET information to a Commonwealth officer or an officer of a Tertiary Admission Centre if the Commissioner believes on reasonable grounds that the disclosure will enable or assist the officer to exercise powers, or perform functions or duties in relation to this Act.

97(2)    
Subsection (1) has effect despite anything in an Act of which the Commissioner has the general administration.

97(3)    
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 disclosure of personal information.

SECTION 98  

98   THIS DIVISION DOES NOT LIMIT USE OR DISCLOSURE OF VET INFORMATION  
This Division does not limit the disclosure or use of VET information.

Note:

The use or disclosure of VET information may also be authorised in other circumstances. For example, see the Privacy Act 1988.

Division 2 - Offences for misuse of personal information  

SECTION 99   VET OFFICERS  

99(1)    
A person commits an offence if:

(a) the person is, or has been, a VET officer; and

(b) the person has obtained or generated personal information in his or her capacity as a VET officer; and

(c) the person:

(i) uses the information; or

(ii) discloses the information to another person.

Penalty: Imprisonment for 2 years.

99(2)    
Subsection (1) does not apply if the use or disclosure is authorised or required by:

(a) a law of the Commonwealth; or

(b) a law of a State or Territory listed in the rules for the purposes of this paragraph.

Note:

A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

99(3)    

Subsection (1) does not apply if the person to whom the personalinformation relates has consented to the use or disclosure.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

SECTION 100   USE OF PERSONAL INFORMATION FOR OTHER PURPOSES  

100(1)    
A person commits an offence if:

(a) the person uses personal information; and

(b) the information was disclosed to an agency, body or person under section 95; and

(c) the use of the information is not for a permitted purpose.

Note:

For permitted purpose , see subsection 95(1).

Penalty: Imprisonment for 2 years.

100(2)    
Subsection (1) does not apply if the use is authorised or required by:

(a) a law of the Commonwealth; or

(b) a law of a State or Territory listed in the rules for the purposes of this paragraph.

Note:

A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

100(2A)    

Subsection (1) does not apply if the person to whom the personal information relates has consented to the use.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

100(3)    
A person commits an offence if:

(a) the person discloses personal information; and

(b) the information was disclosed to an agency, body or person under section 95; and

(c) 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 or employee of, or engaged by, the agency, body or person to whom the information was disclosed under section 95.

Note:

For permitted purpose , see subsection 95(1).

Penalty: Imprisonment for 2 years.

100(4)    
Subsection (3) does not apply if the disclosure is authorised or required by:

(a) a law of the Commonwealth; or

(b) a law of a State or Territory listed in the rules for the purposes of this paragraph.

Note:

A defendant bears an evidential burden in relation to a matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

100(5)    

Subsection (3) does not apply if the person to whom the personal information relates has consented to the disclosure.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

SECTION 101   UNAUTHORISED ACCESS TO, OR MODIFICATION OF, PERSONAL INFORMATION  

101(1)    
A person commits an offence if:

(a) the person causes any unauthorised access to, or modification of, personal information; and

(b) the personal information is VET information:

(i) that is held on a computer; and

(ii) to which access is restricted by an access control system associated with a function of the computer; and

(c) the person intends to cause the access or modification; and

(d) the person knows that the access or modification is unauthorised; and

(e) one or more of the following apply:

(i) the information is held on a computer of an approved course provider;

(ii) the information is held on behalf of an approved course provider;

(iii) the information is held on a computer of a Tertiary Admission Centre;

(iv) the information is held on behalf of a Tertiary Admission Centre.

Penalty: Imprisonment for 2 years.

101(2)    
Absolute liability applies to paragraph (1)(e).

PART 10 - GENERAL PROVISIONS  

SECTION 102   COMMUNICATING ELECTRONICALLY  

102(1)    
The rules may set out requirements for and in relation to the following:

(a) electronic communication between the Commonwealth and students;

(b) electronic communication between the Commonwealth and approved course providers;

(c) electronic communication between students and approved course providers.

102(2)    
An approved course provider contravenes this subsection if the provider fails to comply with rules made under subsection (1).

Civil penalty: 60 penalty units.

SECTION 103   SECRETARY MAY PUBLISH INFORMATION  

103(1)    
The Secretary may publish information (other than personal information about a student) if the Secretary is satisfied that the information would:

(a) assist a student to decide whether or not to enrol in a course provided by an approved course provider; or

(b) assist a student in relation to his or her eligibility for a VET student loan and the circumstances in which the Secretary would approve a VET student loan; or

(c) encourage compliance by an approved course provider with this Act.

103(2)    
The information the Secretary may publish in relation to an approved course provider includes the following:

(a) completion rates for students;

(b) enrolment numbers and forecast enrolment numbers (including for particular courses);

(c) courses offered;

(d) tuition and other fee arrangements and modes of delivery for those courses;

(e) compliance action that has been taken under this Act (including that an intention notice has been given to the provider).

103(3)    
Subsection (2) does not limit subsection (1).

103(4)    
The Secretary may require an approved course provider to release or publish the information that the Secretary could publish under this section in relation to the provider.

103(5)    
An approved course provider contravenes this subsection if the provider fails to comply with a requirement under subsection (4).

Civil penalty: 60 penalty units.

SECTION 103A  

103A   SECRETARY MUST PUBLISH INFORMATION RELATING TO OPERATION OF THE VET STUDENT LOANS PROGRAM  
The Secretary must publish the following information within 42 days after the end of the period of 6 months beginning on 1 January and 1 July in each year (the reporting period ):

(a) the number of approved course providers who operated during the reporting period;

(b) for each of those providers:

(i) the name of the provider; and

(ii) the value of VET student loans approved by the Secretary for approved courses offered by the provider during the reporting period; and

(iii) the number of students who undertook approved courses offered by the provider during the reporting period and whose tuition fees for the courses were paid (whether in whole or in part) using VET student loans; and

(iv) the number of such students who completed approved courses during the reporting period; and

(v) the amount of tuition fees charged to such students by the provider during the reporting period;

(c) any other information in relation to VET student loans prescribed under the rules.

SECTION 104   SECRETARY MAY REQUIRE A PERSON TO PROVIDE INFORMATION ABOUT COMPLIANCE WITH THIS ACT  

104(1)    
The Secretary may, by written notice given to a person who the Secretary believes on reasonable grounds has information or documents relevant to determining whether this Act has been complied with, require the person to give the information or documents to the Secretary.

104(2)    
The information must be provided:

(a) in a form (if any) approved by the Secretary; and

(b) in accordance with other requirements specified by the Secretary.

104(3)    
A notice under this section must not require the giving of information by an approved course provider that the provider is required to give to the Secretary under any other provision of this Act.

104(4)    
A person contravenes this subsection if the person fails to provide information or documents in accordance with a requirement under subsection (1).

Civil penalty: 60 penalty units.

104(5)    
A person commits an offence of strict liability if the person fails to provide information or documents in accordance with a requirement under subsection (1).

Penalty: 60 penalty units.

SECTION 104A   VSL TUITION PROTECTION DIRECTOR MAY REQUIRE A PERSON TO PROVIDE INFORMATION ABOUT COMPLIANCE WITH PART 5A  

104A(1)    
The VSL Tuition Protection Director may, by written notice given to a person who the Director believes on reasonable grounds has information or documents relevant to determining whether Part 5A has been complied with, require the person to give the information or documents to the Director.

104A(2)    
The information must be provided:

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

(b) in accordance with other requirements specified by the Director.

104A(3)    
A person contravenes this subsection if the person fails to provide information or documents in accordance with a requirement under subsection (1).

Civil penalty: 60 penalty units.

104A(4)    
A person commits an offence of strict liability if the person fails to provide information or documents in accordance with a requirement under subsection (1).

Penalty: 60 penalty units.

SECTION 105   SECRETARY MAY USE COMPUTER PROGRAMS TO MAKE DECISIONS  

105(1)    
The Secretary may arrange for the use, under the Secretary's control, of computer programs for any purposes for which the Secretary may make decisions under this Act.

105(2)    
A decision made by the operation of a computer program under such an arrangement is, for the purposes of this Act, taken to be a decision made by the Secretary.

SECTION 105A   VSL TUITION PROTECTION DIRECTOR MAY USE COMPUTER PROGRAMS TO MAKE DECISIONS  

105A(1)    
The VSL Tuition Protection Director may arrange for the use, under the Director's control, of computer programs for any purposes for which the Director may make decisions under this Act.

105A(2)    
A decision made by the operation of a computer program under such an arrangement is, for the purposes of this Act, taken to be a decision made by the VSL Tuition Protection Director.

SECTION 106   GIVING FALSE OR MISLEADING INFORMATION  

106(1)    
A person contravenes this subsection if:

(a) a person gives information or a document:

(i) to a VET officer; or

(ii) otherwise under, or for the purpose 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.

106(2)    
Subsection (1) does not apply if the information or document is not false or misleading in a material particular.

106(3)    
A person is liable to a civil penalty if the person contravenes subsection (1).

Note:

A person may commit an offence if the person provides false or misleading information or documents: see sections 137.1 and 137.2 of the Criminal Code.

Civil penalty: 240 penalty units.

SECTION 107  

107   VERIFYING TAX FILE NUMBERS  
For the purposes of this Act:

(a) the Secretary may ask the Commissioner to verify a tax file number; and

(b) the Commissioner may at any time give the Secretary any information necessary to ensure that the Secretary has the correct tax file number.

SECTION 108   CONTRAVENING OFFENCE AND CIVIL PENALTY PROVISIONS  

108(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.

108(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.

SECTION 109  

109   CERTAIN REFERENCES TO COURSE PROVIDER INCLUDE REFERENCES TO AGENT  
A reference in a civil penalty provision in this Act to a course provider (however described) includes a reference to a person acting on behalf of the provider.

SECTION 110   CONTINUING APPLICATION OF ACT TO CERTAIN PERSONS  

110(1)    
This Act continues to apply in relation to a body that was approved as an approved course provider as if the body were still an approved course provider.

110(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 body was approved as an approved course provider.

110(3)    
(Repealed by No 111 of 2019)

110(4)    
(Repealed by No 111 of 2019)

SECTION 111   NO ENTITLEMENT TO FUTURE RIGHTS  

111(1)    
Neither approval, nor payment of any amount, of a VET student loan requires the Commonwealth to ensure that:

(a) a student has access to a course; or

(b) a course:

(i) is delivered in a particular way; or

(ii) addresses particular content or skills; or

(iii) results in a particular qualification.

111(2)    
Neither approval, nor payment of any amount, of a VET student loan:

(a) requires any other loan to be approved or any other loan amount to be paid; or

(b) prevents any amendment of this Act from having full effect from the commencement of the amendment.

SECTION 112   PROTECTION FROM CIVIL ACTIONS  

112(1)    
This section applies to:

(a) the Secretary; and

(aa) the VSL Tuition Protection Director; and

(ab) a member of the VSL Tuition Protection Fund Advisory Board; and

(b) an APS employee in the Department; and

(c) a consultant engaged by the Commonwealth to perform work in relation to this Act.

112(2)    
A person mentioned in subsection (1) is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith:

(a) in the performance or purported performance of any functions under this Act; or

(b) in the exercise or purported exercise of any powers under this Act.

SECTION 113   COMPENSATION FOR ACQUISITION OF PROPERTY  

113(1)    
If the operation of this Act 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.

113(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.

113(3)    
In this section:

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.

SECTION 113A   REVIEW OF OPERATION OF TUITION PROTECTION  

113A(1)    
Before 1 July 2021, the Minister must commence a review of the operation of Parts 5A (about tuition protection) and 5B (about the VSL Tuition Protection Fund and related matters).

113A(2)    
The review must be conducted at the same time as:

(a) the review conducted under section 176A of the Education Services for Overseas Students Act 2000; and

(b) the review conducted under section 238-7 of the Higher Education Support Act 2003.

Note:

Those sections require the operation of the tuition protection arrangements established under those Acts to be reviewed.

113A(3)    
The Minister must cause to be prepared a report of a review under subsection (1).

113A(4)    
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.

SECTION 114   DELEGATIONS  

114(1)    
The Secretary may, in writing, delegate any or all of his or her powers or functions under this Act to:

(a) an APS employee; or

(b) an officer of an approved external dispute resolution scheme operator.

Note:

For this Act , see section 6

114(2)    
In exercising powers or performing functions under a delegation under subsection (1), the delegate must comply with any directions of the Secretary.

114(3)    
The VSL Tuition Protection Director may, in writing, delegate any or all of the Director's powers or functions under this Act (other than paragraph 66N(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:

(a) the Department; or

(b) the Department administered by the Education Minister.

Note:

Paragraph 66N(1)(e) gives the VSL Tuition Protection Director the function of making a legislative instrument under section 12 of the VET Student Loans (VSL Tuition Protection Levy) Act 2019.

114(4)    
In exercising powers or performing functions under a delegation under subsection (3), the delegate must comply with any directions of the VSL Tuition Protection Director.

SECTION 115  

115   APPROPRIATION  
Amounts of VET student loans payable by the Secretary under this Act are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

SECTION 115A  

115A   ALTERNATIVE CONSTITUTIONAL BASIS  
Without limiting its effect apart from this section, this Act also has the effect it would have if each reference to an approved course provider were expressly confined to a corporation to which paragraph 51(xx) of the Constitution applies.

SECTION 116   RULES  

116(1)    
The Minister may, by legislative instrument, make rules providing for matters:

(a) required or permitted by this Act to be provided; or

(b) necessary or convenient to be provided in order to carry out or give effect to this Act.

Note 1:

For this Act , see section 6

Note 2:

The rules 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 rules may provide different requirements for different kinds of approved course providers.

116(2)    
The rules may provide for amounts determined by, or worked out in accordance with, the rules to be indexed using the method set out in Part 5-6 of the Higher Education Support Act 2003.

116(3)    
If this Act (including the rules) permits or requires a decision to be made, the rules may provide for matters that the decision maker may or must (as specified in the rules) have regard to in making the decision.

116(4)    
If this Act requires or permits the rules to provide for a matter, the rules may provide for the matter to be determined by the Secretary.

116(5)    
Despite subsection 14(2) of the Legislation Act 2003, the rules 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.

116(6)    
The rules may provide for the collection and recovery of approved course provider charge (within the meaning of the VET Student Loans (Charges) Act 2016).

116(7)    
The rules must specify a cap on the amount of VET student loans that can be approved for:

(a) the calendar year in which this subsection commences; and

(b) each of the 2 following calendar years.

116(8)    
Subsections (2) to (7) do not limit subsection (1).