Higher Education Support Amendment (2022 Measures No. 1) Act 2023

(3 of 2023)

An Act to amend the Higher Education Support Act 2003, and for related purposes

[Assented to 20 February 2023]

The Parliament of Australia enacts:

Minister's second reading speech made in - House of Representatives on 10 November 2022; Senate on 30 November 2022

1 Short title

This Act is the Higher Education Support Amendment (2022 Measures No. 1) Act 2023.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. The whole of this Act	The day after this Act receives the Royal Assent.	21 February 2023

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The day after this Act receives the Royal Assent.

21 February 2023

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 Grandfathered students

Part 1 Amendments

Higher Education Support Act 2003

1 Subclause 1(1) of Schedule 1 (after subparagraph (a)(i) of the definition of grandfathered student)

Insert:

(ia) the person commenced a course of study (the ongoing course ) with a higher education provider before 1 January 2021 and, on or after that day, the person completes the ongoing course and commences another course of study (the honours course ) that relates to the ongoing course and that is leading to a *higher education award that is an honours degree;

2 Subclause 1(1) of Schedule 1 (subparagraph (a)(ii) of the definition of grandfathered student)

Omit "*higher education award", substitute "higher education award".

3 After subclause 1(1C) of Schedule 1

Insert:

(1CA) Without limiting subclause (1C), a *course of study is taken to be restructured by a provider for the purposes of that subclause if the course of study is discontinued by the provider.

Part 2 Application and transitional provisions

4 Definitions

In this Part:

affected student means a person who:

(a) is a grandfathered student because of subparagraph (a)(ia) of the definition of that term in Schedule 1 to the Higher Education Support Act 2003, as amended by Part 1 of this Schedule; and

(b) enrolled in a unit of study in an honours course referred to in that subparagraph that has a census date at any time during the transition period.

old student contribution amount for a unit of study for an affected student means the student contribution amount for the unit of study that applied to the student during the transition period.

relevant amendment means the amendment made byitem 1 of Part 1 of this Schedule.

transition period means the period starting on 1 January 2021 and ending on the day before the commencement of this item.

5 Application - definition of grandfathered student

The relevant amendment applies on and after the commencement of this item in relation to a person who undertakes a unit of study in an ongoing course or an honours course that has a census date on or after 1 January 2021, whether the person enrolled in that unit of study before, on or after the commencement of that item.

6 Application - restructured courses

The amendment made by item 3 of Part 1 of this Schedule applies in relation to restructures that occur on or after 1 January 2021.

7 Full up-front payment made during transition period

(1) This item applies if:

(a) during the transition period, an affected student made one or more up-front payments to a higher education provider in relation to a unit of study; and

(b) the amount of that payment, or the sum of those payments, is equal to 90% of the affected student's old student contribution amount for the unit; and

(c) under section 96-3 of the Higher Education Support Act 2003, the Commonwealth paid an amount to the higher education provider for the unit in discharge of the affected student's liability to pay their old student contribution amount for the unit.

(2) If the amount paid by the Commonwealth is more than the amount that would have been paid to the higher education provider had the relevant amendment been in force during the transition period, the difference between the 2 amounts may be:

(a) deducted from any amount that is payable, or to be paid, to the higher education provider under the Higher Education Support Act 2003; or

(b) recovered by the Commonwealth from the higher education provider as a debt due to the Commonwealth.

(3) If the amount paid by the affected student is more than the amount that could have been paid to the higher education provider had the relevant amendment been in force during the transition period, the higher education provider must pay to the affected student an amount equal to the difference between the 2 amounts.

8 Partial up-front payments made during transition period

(1) This item applies if:

(a) during the transition period, an affected student made one or more up-front payments to a higher education provider in relation to a unit of study; and

(b) the amount of that payment, or the sum of those payments is less than 90% of the affected student's old student contribution amount for the unit; and

(c) the Commonwealth paid the following amounts to the higher education provider in relation to the student and the unit:

(i) an amount under paragraph 96-2(3)(b) of the Higher Education Support Act 2003;

(ii) an amount under subsection 96-2(4) of that Act.

(2) If the amount (the old amount ) referred to in subparagraph (1)(c)(i) or (ii) is more than the amount (the new amount ) that would have been paid to the provider had the relevant amendment been in force during the transition period, the difference between the old amount and the new amount may be:

(a) deducted from any amount that is payable, or to be paid, to the higher education provider under the Higher Education Support Act 2003; or

(b) recovered by the Commonwealth from the higher education provider as a debt due to the Commonwealth.

(4) The higher education provider must, on the Secretary's behalf, re-credit the affected student's HELP balance with an amount (the relevant amount ) that is equal to the difference between the amount referred to in subparagraph (1)(c)(i) that was paid to the provider and the amount that would have been paid under paragraph 96-2(3)(b) of the Higher Education Support Act 2003, had the relevant amendment been in force during the transition period.

(5) The affected student's HECS-HELP debt in relation to the unit of study is taken to be remitted by an amount equal to the relevant amount for the purposes of the Higher Education Support Act 2003.

9 No up-front payments made during transition period

(1) This item applies if, during the transition period:

(a) under section 96-1 of the Higher Education Support Act 2003, the Commonwealth:

(i) as a benefit to an affected student, lent to the student an amount of HECS-HELP assistance for a unit of study with a higher education provider; and

(ii) paid to the provider the amount lent in discharge of the student's liability to pay their student contribution amount for the unit; and

(b) the affected student did not make any up-front payments in relation to the unit.

(2) If the amount paid to the higher education provider is more than the amount that would have been paid in relation to the affected student had the relevant amendment been in force during the transition period, the difference between the 2 amounts may be:

(a) deducted from any amount that is payable, or to be paid, to the higher education provider under the Higher Education Support Act 2003; or

(b) recovered by the Commonwealth from the higher education provider as a debt due to the Commonwealth.

(3) The higher education provider must, on the Secretary's behalf, re-credit the affected student's HELP balance with an amount (the relevant amount ) that is equal to the difference between the amount that was paid to the provider and the amount that would have been paid in relation to the affected student, had the relevant amendment been in force during the transition period.

(4) The affected student's HECS-HELP debt in relation to the unit of study is taken to be remitted by an amount equal to the relevant amount for the purposes of the Higher Education Support Act 2003.

10 Secretary may act if provider is unable to

If a higher education provider is unable to act for one or more of the purposes of subitem 8(4) or 9(3), the Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.

11 Interaction with the Higher Education Support Act 2003

The obligations imposed on a higher education provider under Part 2 of this Schedule are taken, for the purposes of the Higher Education Support Act 2003, to be conditions of a grant made to the provider under Part 2-2 of that Act.

12 Transitional rules

(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.

(2) Without limiting subitem (1), rules made under this item before the end of the period of 12 months starting on the day this Schedule commences may provide that provisions of this Schedule, or any other Act or instrument, have effect with any modifications prescribed by the rules. Those provisions then have effect as if they were so modified.

(3) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) directly amend the text of an Act.

(4) This Schedule (other than subitem (3)) does not limit the rules that may be made for the purposes of subitem (1).

Schedule 2 HELP debt arrangements for certain rural, remote or very remote health practitioners

Part 1 Amendments

Higher Education Support Act 2003

1 Subsection 128-25(3)

After "142-15", insert "or 144-10".

2 Section 129-1

Omit:

A very remote HELP debtor's accumulated debt, or the indexation of that debt, may be reduced (see Division 142).

substitute:

Accumulated HELP debt, or the indexation of that debt, may be reduced for certain HELP debtors working in rural, remote or very remote areas (see Divisions 142 and 144).

3 Section 134-5

Repeal the section, substitute:

134-5 HELP Debtor Guidelines

(1) Matters relating to *location-preferred HELP debtors (teachers) are dealt with in the HELP Debtor Guidelines (Teachers).

(2) Matters relating to *location-preferred HELP debtors (health practitioners) are dealt with in the HELP Debtor Guidelines (Health Practitioners).

(3) The provisions of this Part indicate when a particular matter is or may be dealt with in those Guidelines.

Note: The HELP Debtor Guidelines (Teachers) and HELP Debtor Guidelines (Health Practitioners) are made by the Minister under section 238-10.

4 At the end of paragraph 140-1(3)(d)

Add "or 144-10".

5 Paragraph 140-10(1)(a)

After "section 142-10", insert "or 144-5".

6 Subsection 140-10(1A) (at the end of the definition of B)

Add "or 144-5(2)".

7 Subsection 140-25(1) (formula)

Repeal the formula, substitute:

Former accumulated HELP debt plus HELP debts incurred minus HELP debt repayments minus Location-preferred HELP debtor reduction

8 Subsection 140-25(1)

Insert:

location-preferred HELP debtor reduction means the amount by which the person's *accumulated HELP debt is to be reduced as a result of a determination made by the *Secretary in relation to the person under section 142-15 or 144-10:

(a) on or after 1 June in the preceding financial year; and

(b) before 1 June in the financial year.

9 Subsection 140-25(1) (definition of very remote HELP debtor reduction)

Repeal the definition.

10 Division 142 (heading)

Omit " very remote HELP debtors ", substitute " location-preferred HELP debtors - teachers ".

11 Section 142-1 (heading)

Omit " very remote HELP debtor ", substitute " location-preferred HELP debtor (teacher) ".

12 Subsection 142-1(1)

Omit " very remote HELP debtor ", substitute " location-preferred HELP debtor (teacher) ".

13 Subsection 142-1(3)

Omit "Very Remote HELP Debtor Guidelines", substitute "HELP Debtor Guidelines (Teachers)".

14 Paragraph 142-1(3)(c)

Omit "*very remote HELP debtor", substitute "*location-preferred HELP debtor (teacher)".

15 Subsection 142-5(2)

Omit "Very Remote HELP Debtor Guidelines", substitute "HELP Debtor Guidelines (Teachers)".

16 Paragraph 142-10(1)(a)

After "financial year in", insert "relation to".

17 Subparagraph 142-10(1)(b)(i)

Omit "*very remote HELP debtor", substitute "*location-preferred HELP debtor (teacher)".

18 Subparagraph 142-10(1)(b)(ii)

Omit "Very Remote HELP Debtor Guidelines", substitute "HELP Debtor Guidelines (Teachers)".

19 Subsection 142-10(2)

Omit "*very remote HELP debtor", substitute "*location-preferred HELP debtor (teacher)".

20 Subsection 142-10(3)

Omit "28 days after the day the Secretary receives the application under subsection (4)", substitute "the period specified by subsection (3A)".

21 Subsection 142-10(3) (note)

Repeal the note.

22 After subsection 142-10(3)

Insert:

(3A) For the purposes of subsection (3), the period is:

(a) the period of 60 days after the day the *Secretary receives the application under subsection (4); or

(b) any longer period (not exceeding 6 months) determined in writing by the Secretary in relation to the application.

Note: The Secretary is taken to have made a decision to reject the application if the Secretary does not notify the person of the decision within the period specified by this subsection: see section 206-5.

(3B) If the notice states a number of days by which indexation of the person's *accumulated HELP debt is to be reduced, the *Secretary must give a copy of the notice to the *Commissioner.

23 Paragraph 142-10(4)(d)

Omit "Very Remote HELP Debtor Guidelines", substitute "HELP Debtor Guidelines (Teachers)".

24 Subparagraph 142-15(1)(a)(i)

Omit "*very remote HELP debtor", substitute "*location-preferred HELP debtor (teacher)".

25 Subparagraph 142-15(1)(a)(ii)

Omit "those Guidelines", substitute "the HELP Debtor Guidelines (Teachers)".

26 Subsection 142-15(4)

Omit "28 days after the day the Secretary receives an application under subsection (5)", substitute "the period specified by subsection (4A)".

27 Subsection 142-15(4) (note)

Repeal the note.

28 After subsection 142-15(4)

Insert:

(4A) For the purposes of subsection (4), the period is:

(a) the period of 60 days after the day the *Secretary receives the application under subsection (5); or

(b) any longer period (not exceeding 6 months) determined in writing by the Secretary in relation to the application.

(4B) If the notice states an amount by which the person's *accumulated HELP debt is to be reduced, the *Secretary must give a copy of the notice to the *Commissioner.

29 Paragraph 142-15(5)(d)

Omit "Very Remote HELP Debtor Guidelines", substitute "HELP Debtor Guidelines (Teachers)".

30 At the end of Part 4-1

Add:

Division 144 - Special measures for location-preferred HELP debtors - health practitioners

144-1 Meaning of location-preferred HELP debtor (health practitioner)

(1) A person is a location-preferred HELP debtor (health practitioner) in relation to a *course of study if:

(a) the person has completed the course of study; and

(b) the course of study is covered by subsection (2); and

(d) the person holds the registration or accreditation as a kind of health practitioner for the course of study specified by the HELP Debtor Guidelines (Health Practitioners) (the Guidelines ) for the purposes of this paragraph; and

(e) the person carries out work as that kind of health practitioner in the circumstances (if any) specified by the Guidelines for the purposes of this paragraph; and

(f) the work is carried out in an area specified by the Guidelines, by reference to the *ABS Remoteness Structure, as a rural area, a remote area or a very remote area for the purposes of this paragraph; and

(g) the number of hours during which the person carries out work is not less than the minimum number of hours (if any) specified for a health practitioner of that kind by the Guidelines for the purposes of this paragraph; and

(h) the person satisfies any other applicable requirements specified by the Guidelines for the purposes of this paragraph.

Eligible courses of study

(2) For the purposes of this Division, a *course of studyis covered by this subsection if:

(a) it is a *course of study in medicine specified by the Guidelines for the purposes of this paragraph; or

(b) it is a course of study:

(i) the completion of which would allow a person to be registered as a nurse practitioner within the meaning of the Health Insurance Act 1973; and

(ii) that is specified by the Guidelines for the purposes of this subparagraph; or

HELP Debtor Guidelines (Health Practitioners)

(3) Without limiting subsection 238-10(1), the Guidelines may set out:

(a) circumstances in which a person is taken, or is taken not, to carry out work as a *location-preferred HELP debtor (health practitioner) as a particular kind of health practitioner; or

(b) circumstances in which a person is taken, or is taken not, to carry out such work in a rural area, a remote area or a very remote area; or

(c) circumstances in which a person is taken, or is taken not, to be a location-preferred HELP debtor (health practitioner) in relation to a *course of study for particular periods.

144-5 Reducing indexation of accumulated HELP debts

(1) The *Secretary must, on the application of a person under subsection (6), determine that the indexation of the person's *accumulated HELP debt for a *course of study is to be reduced in relation to a financial year if:

(a) on 1 June of the financial year in relation to which the application is made, the person has an accumulated HELP debt for the course of study; and

(b) the Secretary is satisfied that the person:

(i) was a*location-preferred HELP debtor (health practitioner) in relation to the course of study at any time during the calendar year (the applicable calendar year ) ending on 31 December in the financial year; and

(ii) has met such other requirements (if any) as are specified in the HELP Debtor Guidelines (Health Practitioners) for the purposes of this subparagraph.

(2) If the *Secretary determines that the indexation of the person's *accumulated HELP debt for a *course of study is to be reduced in relation to a financial year, the Secretary must determine the number of days in the applicable calendar year in respect of which the person was a *location-preferred HELP debtor (health practitioner) for the course of study.

(3) The *Secretary must, within the period specified by subsection (4), give notice to the person of the Secretary's decision on that application. The notice must:

(a) be in writing; and

(b) if the Secretary determines that the indexation of the person's *accumulated HELP debt for the *course of study is to be reduced in relation to a financial year - state the number of days determined by the Secretary under subsection (2).

(4) For the purposes of subsection (3), the period is:

(a) the period of 60 days after the day the *Secretary receives the application under subsection (6); or

(b) any longer period (not exceeding 6 months) determined in writing by the Secretary in relation to the application.

(5) If the notice states a number of days by which indexation of the person's *accumulated HELP debt for the *course of study is to be reduced, the *Secretary must give a copy of the notice to the *Commissioner.

(6) A person may apply to the *Secretary for a determination under subsection (1) that the indexation of the person's *accumulated HELP debt for a *course of study be reduced in relation to a financial year. The application must:

(a) be in writing; and

(b) be in the form (if any) approved by the Secretary and accompanied by the information (if any) required by the Secretary; and

(d) meet any requirements specified by the HELP Debtor Guidelines (Health Practitioners) for the purposes of this paragraph.

(7) The *Secretary may refuse to consider an application until the Secretary is satisfied that the application complies with subsection (6).

144-10 Reducing accumulated HELP debts

(1) The *Secretary must, on the application of a person under subsection (7), determine that the person's *accumulated HELP debt for a *course of study is to be reduced by a specified amount if the Secretary is satisfied that the person:

(a) has been a *location-preferred HELP debtor (health practitioner) in relation to the course of study for one or more periods that, in total, are not less than the minimum period specified for the course of study by the HELP Debtor Guidelines (Health Practitioners); and

(b) has met such other requirements (if any) as are specified in those Guidelines for the purposes of this paragraph.

(2) If the *Secretary determines that a person's *accumulated HELP debt for a *course of study is to be reduced, the amount by which that debt is reduced must not exceed the lesser of the following:

(a) the sum of the amounts of *HECS-HELP debt and *FEE-HELP debt incurred by the person in respect of units of study:

(i) with a total *EFTSL value not exceeding the maximum amount for the course of study specified in the HELP Debtor Guidelines (Health Practitioners) for the purposes of this subparagraph; and

(ii) undertaken as part of the course of study;

(b) the amount of the person's accumulated HELP debt for the course of study on the day the person first becomes a *location-preferred HELP debtor (health practitioner) in relation to the course of study.

(3) To avoid doubt, this section may have the effect of reducing a person's *accumulated HELP debt for a financial year to less than zero.

(4) The *Secretary must, within the period specified by subsection (5), notify the person of the Secretary's decision on that application. The notice must:

(a) be in writing; and

(b) if the Secretary has determined that the person's *accumulated HELP debt for the *course of study is to be reduced - state the amount by which that debt is to be reduced.

(5) For the purposes of subsection (4), the period is:

(a) the period of 60 days after the day the *Secretary receives the application under subsection (7); or

(b) any longer period (not exceeding 6 months) determined in writing by the Secretary in relation to the application.

(6) If the notice states an amount by which the person's *accumulated HELP debt for the *course of study is to be reduced, the *Secretary must give a copy of the notice to the *Commissioner.

(7) A person may apply to the *Secretary for a determination under subsection (1) that the person's *accumulated HELP debt for a *course of study be reduced. The application must:

(a) be in writing; and

(b) be in the form (if any) approved by the Secretary and accompanied by the information (if any) required by the Secretary; and

(d) meet any requirements specified by the HELP Debtor Guidelines (Health Practitioners) for the purposes of this paragraph.

(8) The *Secretary may refuse to consider an application until the Secretary is satisfied that the application complies with subsection (7).

144-15 Refunding amounts

If:

(a) the *Secretary has determined, for the purposes of section 144-10, that a person's *accumulated HELP debt for a *course of study is to be reduced by an amount; and

(b) the amount exceeds the sum of:

(i) the amount required to discharge the total debt that the person owed to the Commonwealth under this Chapter; and

(ii) the total amount of the person's primary tax debts (within the meaning of Part IIB of the Taxation Administration Act 1953);

the Commonwealth must refund to the person an amount equal to that excess.

144-20 Reviews of this Division

(1) The Minister must cause to be conducted independent reviews of the operation of this Division before:

(a) 1 July 2025; and

(b) 1 July 2028.

(1A) Each review must consider, and make recommendations to the Commonwealth Government about, the expansion of the policy implemented by this Division to other sectors of high skills need in rural, remote and very remote Australia, including the health, mental health and education sectors.

(1B) Each review should consult with rural and remote communities and their health, mental health and education service providers and specifically, the following must be consulted as part of each review:

(a) the National Rural Health Commissioner;

(b) the Regional Education Commissioner.

Report

(2) The Minister must cause to be prepared a report of each review under subsection (1) within 3 months of the commencement of the relevant review.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the report.

Response to report

(4) The Minister must:

(a) prepare a written statement in response to the report; and

(b) cause a copy of the statement to be tabled in each House of the Parliament within 30 sitting days of that House after the copy of the report is tabled in that House.

31 Section 206-1 (at the end of the cell at table item 2AA, column headed "Provision under which decision is made")

Add "or 144-5".

32 Section 206-1 (at the end of the cell at table item 2AB, column headed "Provision under which decision is made")

Add "or 144-10".

33 Subsection 238-10(1) (cell at table item 8AA, column headed "Guidelines")

Repeal the cell, substitute:

HELP Debtor Guidelines (Teachers)

34 Subsection 238-10(1) (after table item 8AA)

Insert:

8AB

HELP Debtor Guidelines (Health Practitioners)

Part 4-1

35 At the end of subsection 238-10(1)

Add:

Note: The HELP Debtor Guidelines (Teachers) were previously known as the Very Remote HELP Debtor Guidelines.

36 At the end of section 238-10

Add:

HELP Debtor Guidelines (Health Practitioners)

(4) The Minister must consult the Treasurer before specifying a kind of health practitioner in the HELP Debtor Guidelines (Health Practitioners) for the purposes of paragraph 144-1(1)(d).

(5) Despite subsection 14(2) of the Legislation Act 2003, the HELP Debtor Guidelines (Health Practitioners) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time.

37 Subclause 1(1) of Schedule 1

Insert:

location-preferred HELP debtor (health practitioner) : see section 144-1.

location-preferred HELP debtor (teacher) : see section 142-1.

38 Subclause 1(1) of Schedule 1 (definition of very remote HELP debtor)

Repeal the definition.

Part 2 Application, saving and transitional provisions

39 Application of amendments

(1) The amendments of sections 142-10 and 142-15 of the Higher Education Support Act 2003 made by this Schedule apply in relation to applications under those sections that are received by the Secretary on or after the commencement of this item.

(2) Subsection 144-5(1) of the Higher Education Support Act 2003, as inserted by this Part, applies in relation to the 2021-2022 financial year and each later financial year.

(3) Despite subsection 144-5(2) of the Higher Education Support Act 2003, as inserted by this Schedule, a day that occurs before 1 January 2022 must not be counted for the purposes of that subsection.

(4) Section 144-10 of the Higher Education Support Act 2003, as inserted by this Schedule, applies in relation to a course of study whether completed before or after the commencement of this Schedule.

(5) Despite paragraph 144-10(1)(a) of the Higher Education Support Act 2003, as inserted by this Schedule, the Secretary must not determine that a person was a location-preferred HELP debtor (health practitioner) in relation to a course of study for a period if any part of the period occurred before 1 January 2022.

40 Saving provisions

(1) A person who was a very remote HELP debtor immediately before the commencement of this Schedule is taken, on and after that commencement, to be a location-preferred HELP debtor (teacher).

(2) Very Remote HELP Debtor Guidelines made under subsection 238-10(1) of the Higher Education Support Act 2003 that were in force immediately before the commencement of this Schedule continue in force (and may be dealt with) as if they were HELP Debtor Guidelines (Teachers) made under that subsection as amended by this Schedule.