House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Education, Science and Training the Hon Dr Brendan Nelson MP)

Schedule 2 - Amendment of the Higher Education Support Act 2003

Part 1 - Amendments

Item 1

Section 16-25 provides for the Minister to approve a body corporate as a higher education provider if the body meets certain conditions. Item 1 inserts a new paragraph 16-25(1)(aa) which has the effect of adding an additional condition that the body's sole or principal purpose must be to provide education or conduct research.

Item 2

Section 19-35 makes provision for benefits and opportunities to be available equally to all students as part of the fairness requirements higher education providers must adhere to. Item 2 inserts new subsections 19-35(4) and (5) which have the effect of adding the requirement that higher education providers make opportunities equally available to all their students and to all persons seeking to enrol with the provider, including open, fair and transparent procedures based on merit for making decisions about the selection and treatment of students, while still allowing a provider to take account of educational disadvantages that a particular student has experienced.

Item 3

Section 19-45 makes provision for student grievance and review procedures as part of the fairness requirements higher education providers must adhere to. Item 3 replaces subsection 19-45(2) with a new subsection to enable guidelines to be made concerning the grievance procedures for academic as well as non-academic matters of non-Table A providers.

Items 4 and 5

Add new subsections 19-88(5) and 19-91(5) which have the effect of enabling guidelines to be made concerning the conditions which may be applied to student contribution amounts and tuition fees for student cohorts.

Item 6

Subdivision 22-B of Chapter 2 provides for revocation of a body's approval as a higher education provider for certain causes. Item 6 inserts a new section 22-7 which has the effect of adding an additional cause for revocation if the body's principal purpose has ceased to be to provide education or conduct research, provided the Minister complies with the requirements of section 22-20 (dealing with the process for revoking approval as a provider for loss of status or a breach).

Item 7

Amends paragraphs 30-5(1)(a), (b) and (c) to vary the level of maximum grants under the Commonwealth Grant Scheme (Part 2-2) for the years 2005-2007 to reflect additional funding for the Australian Maritime College, additional medical places at James Cook University, additional nursing places and supplementation consistent with indexation arrangements for the years 2005-07. Item 7 also inserts a new paragraph 30-5(1)(d) to provide base funding for 2008 consistent with the forward estimates.

Item 8

Section 36-40 sets out certain circumstances in which a provider must cancel a person's enrolment in a unit of study. Item 8 replaces subsection 36-40(3) with a new subsection to redefine a request for Commonwealth assistance in relation to a person enrolling in a unit of study with a higher education provider (where access to the unit was not provided by Open Learning Australia) as meaning a document:

•

In which the person requests the Commonwealth to provide assistance under the Act in relation to the unit (or in relation to the course of study of which the unit forms a part); and

•

that is in the form approved by the Minister; and

•

that the person gives to an appropriate officer of the provider on or before the person's enrolment in the unit.

Item 9

Repeals the table in subsection 41-45(1) and inserts a new table to vary the maximum payments for Other Grants under Part 2-3 for the years 2005-2007 to reflect continuing funding for Research Infrastructure under Backing Australia's Ability in 2007, the transfer of funding for the Indigenous Higher Education Advisory Council to the Annual Appropriations, additional National Institute funding for the Australian Maritime College initiative at Point Nepean, funding for the medical school at the University of Western Sydney, additional funding to continue the Regional Protection Scheme and supplementation consistent with indexation arrangements for the years 2005-2007. The new table also provides base funding for 2008 consistent with the forward estimates.

Items 10-12

Insert a new subsection 46-15(3), replace paragraph 46-20(2)(f) and amend section 46-30 to have the effect of extending the Commonwealth Scholarships provisions to all providers with Commonwealth supported places.

Item 13

Repeals the table in subsection 46-40(1) and inserts a new table to vary the maximum payments for Commonwealth Scholarships under Part 2-4 for the years 2005-2007 to reflect supplementation consistent with indexation arrangements and to provide base funding for 2008 consistent with the forward estimates.

Items 14, 20 and 37

Replace paragraphs 90-5(1)(b), 104-5(1)(b) and 118-5(b) to amend citizenship or residency requirements for HECS-HELP, FEE-HELP and OS-HELP assistance so that all persons who hold a permanent humanitarian visa that may have been issued under past regulations are eligible for assistance, even if that visa subclass has become obsolete or has been repealed.

Item 15

Amends subsection 96-5(4) dealing with the meaning of the HECS-HELP discount for a unit of study in relation to partial up-front payment of student contribution amounts (used in determining how HECS-HELP assistance is paid) to remove the current limitation on the discount to payments totalling $500 or more.

Items 16-19 and 21-36

Amend the description of Part 3-3 FEE-HELP assistance in section 101-1, amend subsection 104-1(1), repeal subsection 104-1(2), insert new sections 104-2, 104-3 and 104-4 and new paragraph 104-25(aa), repeal the note to section 104-25, insert new subsection 104-25(2), amend subsection 104-30(1), insert new subsection 104-30(3), amend paragraph 104-35(1)(a), insert new subsection 104-35(1A), amend subsection 104-35(2), replace paragraph 104-40(1)(a), insert new subsection 104-40(1A), amend subsection 107-10(3), insert new subsection 107-10(4), amend section 110-1, insert new subsection 110-1(2), amend section 110-5 and insert new subsection 110-5(2) to ensure that Open Learning Australia (OLA) is subject to all the necessary provisions in the Act to enable FEE-HELP to be appropriately administered for OLA students and that OLA is required to comply with the relevant Quality and Accountability requirements.

Item 38

Amends section 169-25 (dealing with the determination of census dates and EFTSL values) by repealing subsection 169-25(3) and replacing it with new subsections 169-25(3) and (4) regarding publication of the census date and the EFTSL value for a unit of study.

New subsection 169-25(3) requires the provider to publish the census date and the EFTSL value for a unit by the date (and in the manner) specified in the Administration Guidelines.

New subsection 169-25(4) prohibits the provider from varying the census date or the EFTSL value for the unit after publication under subsection 169-25(3), unless the provider has the written approval of the Minister. The provider must publish any variation by the date and in the manner specified by the Minister in the approval.

Items 39-69 and 74

Insert a new paragraph 179-15(1)(c), new subsection 179-15(3A), new paragraphs 179-15(4)(c) 179-20(ca), (e), (f) and (g) and 179-25(1)(c), replace paragraph 179-35(1)(d) and section 184-1, amend subsection 187-1(1), insert new subsection 187-1(1A), amend subsection 187-1(2), insert new subsection 187-1(3A), replace subsection 187-1(4), insert new subsection 187-1(6), new section 187-2 and new subsection 187-5(2), replace the headings to Division 190 and 193, insert new subsections 190-1(2), 190-5(3) and (4), 190-10(3) and (4) and 190-15(1A), amend subsection 190-15(2), insert new subsection 190-20(1A), amend subsection 190-20(2), insert new subsections 193-1(2A), (2B) and (2C), amend the table and note in section 206-1, replace paragraph 209-1(1)(b) with new paragraphs (b) and (c), amend the note to section 209-1 and insert new subsections 238-1(2A) and (2B) to ensure that Open Learning Australia (OLA) is subject to all the necessary provisions in the Act to enable FEE-HELP to be appropriately administered for OLA students, and that OLA is required to comply with the relevant Quality and Accountability requirements.

Items 70-73

Division 225 of Chapter 6 provides that certain persons (other than natural persons) in the external Territories may apply for approval as self-accrediting entities, or for the accreditation of courses of study that they propose to offer. Items 70-73 insert new paragraphs 225-5(c) and 225-10(c) and replace paragraphs 225-20(1)(b) and 225-20(2)(b) with new paragraphs (b) and (c) respectively, which have the effect of adding the additional condition that the person's principal purpose must be to provide education or conduct research to be eligible for approval under Division 225.

Items 75-84

Amend the dictionary of defined terms in Schedule 1 by repealing the definitions and substituting new definitions of appropriate officer, census date, course of study, fee, request for Commonwealth assistance, review officer and tuition fee and inserting new definitions of eligible scholarship provider, officer of Open Learning Australia and permanent humanitarian visa holder to reflect the amendments made by other items in this Schedule.

The revised definition of course of study at Item 77 merely makes explicit in the Act the definition already used under the Australian Qualifications Framework.

Part 2-Transitional provision

Item 85

Provides for the saving of guidelines issued under subsection 187-1(4) of the Higher Education Support Act 2003 (guidelines issued by the Commissioner of Taxation) that were in force immediately before the commencement of item 85. These guidelines continue to have effect on and after that commencement as if they had been issued under subsection 187-1(4) as in force after that commencement. This is not intended to prevent the amendment or revocation of the guidelines.