Explanatory Memorandum
(Circulated by authority of the Minister for Education, Science and Training, the Honourable Dr Brendan Nelson MP)Notes on clauses
Provides for the Act to be cited as the Higher Education Legislation Amendment Act (No. 3) 2004.
Subclause 2(1) inserts a three column table setting out commencement information for various provisions in the Act. Each provision of the Act specified in column 1 of the table commences (or is taken to have commenced) in accordance with column 2 of the table and any other statement in column 2 has effect according to its terms.
The table provides for sections 1-3 of the Act and for items 1-44 and 47-52 of Schedule 1, items 1-8, Schedule 2, and Schedules 3 and 4 to the Act to commence on the day on which it receives the Royal Assent and for other provisions to commence on the days set out in column 3 of the table.
Subclause 2(2) provides that column 3 of the table is for additional information which may be added to or edited in any published version of the Act but that information in this column is not part of the Act.
Provides that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule and that any other item in a Schedule has effect according to its terms.
Schedule 1 - Amendment of the Higher Education Support Act 2003
Higher Education Support Act 2003
Section 19-87 deals with determining student contribution amounts for all places in units. Item 1 amends paragraph 19-87(1)(b) to have the effect of providing that where a unit of study that may form a part of a course of study in which a Table A provider or another Table A provider may enrol students as Commonwealth supported students, a student contribution amount for a place in the unit must be determined under paragraph 19-87(1)(c).
Amends section 19-100 (dealing with limits on fees for courses of study) to have the effect of providing that a higher education provider must not charge a person a fee for a course of study that exceeds the sum of the person's tuition fees for all of the units of study undertaken (whether with that provider or another higher education provider) by the person as part of the course.
Item 3 After subparagraph 19-105(a)(i)
Inserts a new subparagraph 19-105(a)(ia) to provisions determining a person's tuition fee for a unit of study in a student cohort to add the requirement that the person must be undertaking the unit with that provider to have the fee determined by the provider in accordance with section 19-91 for the cohort to apply to the person.
Item 4 Paragraphs 30-5(1)(a) and (b)
Repeals paragraphs 30-5(1)(a) and (b) to vary the level of maximum grants under the Commonwealth Grant Scheme (Part 2-2) for the years 2005 and 2006 to reflect provision of funding for radiation oncology places at the University of Newcastle and the Royal Melbourne Institute of Technology as Commonwealth supported students.
Items 5 and 6 Subparagraphs 30-25(3)(a)(i) and (ii)
Repeal subparagraphs 30-25(3)(a)(i) and (ii) and inserts new subparagraphs to have the effect of clarifying that places in undergraduate courses of study and places in non research postgraduate courses of study are included in the specific conditions a funding agreement with a higher education provider under section 30-25 may specify.
Repeals paragraph 36-5(1)(b) and substitutes a new paragraph to clarify the meaning of Commonwealth supported student.
Amends paragraph 36-10(1)(b) to have the effect of relaxing one of the pre-conditions which must be met before a higher education provider can advise a person that he/she is a Commonwealth supported student in relation to a unit of study. The pre-condition in paragraph 36-10(1)(b) will now be that the unit must contribute to the requirements of a course of study in which the person is enrolled with the provider or, where the provider is a Table A provider, with another Table A provider.
Item 9 At the end of section 36-10
Inserts new subsections 36-10(7) to (10) to provide for advice on whether a person is a Commonwealth supported student in relation to units of study at full fee summer schools.
Proposed subsection 36-10(7) provides that a higher education provider must not advise a person that he/she is a Commonwealth supported student in relation to a unit of study if the person undertakes the unit wholly during a summer school period (the current summer school period) and the provider has determined that this subsection applies to the unit.
Proposed subsection 36-10(8) provides that a higher education provider may determine that subsection 36-10(7) applies to a unit of study only if each person who could undertake the unit during the current summer school period could undertake (or could have undertaken) the unit during a period other than a summer school period as part of a course of study undertaken by the person with the higher education provider.
Proposed subsection 36-10(9) provides that the higher education provider must make the determination before the start of the current summer school period.
Proposed subsection 36-10(10) defines summer school period for the purposes of section 36-10 as meaning a period that starts on or after 1 November in a year and ends after 1 January (but before 1 March) in the following year.
Amends paragraph 36-15(2)(a) to have the effect of providing that the Minister may determine in writing that a specified course of study is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as Commonwealth supported students.
Amends paragraph 36-15(2)(b) to have the effect of providing that the Minister may determine in writing that a course of study of a specified type is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as Commonwealth supported students.
Section 36-22 deals with the obligation of providers to make repayments in relation to units wholly consisting of work experience in industry in special circumstances. Item 12 repeals paragraph 36-22(1)(a) and substitutes new paragraphs 36-22(1)(a) and (aa) which have the effect of providing that one of the conditions for section 36-22 to apply to a person is that the person has been enrolled as a Commonwealth supported student with a higher education provider in a unit of study and the unit would (if completed) form part of a course of study undertaken with the provider or, where the provider is a Table A provider, with another Table A provider.
Amends paragraph 36-22(1)(d) to have the effect of providing that one of the conditions for section 36-22 to apply to a person is that the provider with which the person is enrolled in the unit is satisfied that special circumstances apply to the person.
Amends paragraph 36-22(1)(e) to have the effect of providing that one of the conditions for section 36-22 to apply to a person is that the person applies in writing to that provider for either or both the repayment of any amounts that the person paid in relation to his/her student contribution amount for the unit or the remission of the person's HECS-HELP debt in relation to the unit.
Repeals section 36-25 and inserts new subsections 36-25(1) and (2) dealing with continued support for Commonwealth supported students.
Proposed subsection 36-25(1) provides that a higher education provider must advise a person who is enrolled in a unit of study with the provider (as part of a course of study being undertaken with the provider) that he/she is a Commonwealth supported student in relation to the unit if the person is or has been a Commonwealth supported student in relation to one or more other units of study undertaken with the provider as part of the course and the provider is not prohibited (under section 36-10) from so advising the person.
Proposed subsection 36-25(2) provides that a Table A provider (the host provider) must advise a person who is enrolled in a unit of study with the provider, as part of a course of study being undertaken with another Table A provider (the home provider), that he/she is a Commonwealth supported student in relation to the unit if:
- •
- the person is or has been a Commonwealth supported student in relation to one or more other units of study in the course undertaken with the home provider; and
- •
- the person must undertake the unit because it is required to complete the course; and
- •
- the host provider is not prohibited (under section 36-10) from so advising the person.
Section 36-35 deals with the percentage of Commonwealth supported places to be provided by Table A providers. Item 16 amends paragraph 36-35(1)(a) to reflect the insertion of a definition of undergraduate course of study in the Dictionary in Schedule 1 by item 52.
Repeals subsection 36-35(2) and inserts a new subsection which provides that, for the purpose of applying subsection 36-35(1) in relation to a course of study, any enrolment in work experience in industry, an employer reserved place in that course, or a unit of study that is the subject of a determination by the provider under subsection 36-10(7) must be disregarded.
Item 18 Subparagraph 36-40(1)(b)(i)
Section 36-40 requires providers to cancel enrolments in certain circumstances. Item 18 repeals subparagraph 36-40(1)(b)(i) and substitutes a new subparagraph which has the effect of making subsection 36-40(1) provide that a higher education provider must cancel a person's enrolment in a unit of study with the provider if the person:
- (a)
- is enrolled as a Commonwealth supported student in relation to the unit; and
- (b)
- has not, on or before the census date for the unit, completed (and signed) a request for Commonwealth assistance in relation to the unit or, where the unit forms part of a course of study undertaken with the provider, in relation to the course of study and given it to an appropriate officer of the provider.
Subsection 36-40(3) defines a request for Commonwealth assistance. Item 19 amends paragraph (a) of the definition so that a request for Commonwealth assistance must be a document in which a person enrolling in a unit of study with a higher education provider requests the Commonwealth to provide assistance under this Act in relation to the unit or, where the unit forms part of a course of study undertaken with the provider, in relation to the course of study.
Items 20 and 21 Paragraphs 36-40(3)(b) and (c)
Repeal paragraph 36-40(3)(c) and consequentially amends paragraph 36-40(3)(b) of the definition of a request for Commonwealth assistance to remove the requirement for the document to be given to an appropriate officer of the provider on or before the person's enrolment in the unit.
Items 22 and 23 Paragraph 76-1(1)(d)
Section 76-1 deals with reducing a person's Student Learning Entitlement. Items 22 and 23 amend paragraph 76-1(1)(d) and replace subparagraph 76-1(1)(d)(ii) to have the effect of providing that one of the conditions for reducing a person's Student Learning Entitlement is that the person has (on or before the census date) completed, signed and given to an appropriate officer of the provider a request for Commonwealth assistance in relation to the unit or where the course of study of which the unit forms a part is undertaken with the provider-the course of study.
Section 79-1 deals with re-crediting a person's Student Learning Entitlement. Item 24 repeals paragraph 79-1(a) and substitutes new paragraphs 79-1(a) and (aa) which provide that two of the conditions which must be met before a higher education provider must re-credit a person's SLE are that the person has been enrolled in the unit with the provider and the unit would (if completed) form part of a course of study undertaken with the provider or, where the provider is a Table A provider, with another Table A provider.
Section 90-1 deals with entitlement to HECS-HELP assistance. Item 25 repeals paragraph 90-1(g) and substitutes a new paragraph to have the effect of providing that one of the conditions before a student is entitled to HECS-HELP assistance for a unit of study in which the student is enrolled with a higher education provider as part of a course of study is that the student has (on or before the census date) completed, signed and given to an appropriate officer of the provider a request for Commonwealth assistance in relation to the unit or, where the course of study of which the unit forms a part is undertaken with the provider, in relation to the course of study.
Item 26 After subparagraph 93-5(1)(a)(i)
Section 93-5 deals with student contribution amounts. Item 26 inserts a new subparagraph 93-5(1)(a)(ia) which has the effect of amending the method of calculation of a person's student contribution amount by including an additional requirement which must apply in relation to the person's student contribution amount for a place. That requirement is that the person is undertaking the unit with that provider.
Section 104-1 deals with entitlement to FEE-HELP assistance. Item 27 repeals paragraph 104-1(1)(i) and substitutes a new paragraph containing two subparagraphs.
Proposed subparagraph 104-1(1)(i)(i) provides that the student is entitled to FEE-HELP assistance if the student has, on or before the census date completed, signed and given to an appropriate officer of Open Learning Australia a request for Commonwealth assistance in relation to the unit where the access to the unit was provided by Open Learning Australia.
Proposed subparagraph 104-1(1)(i)(ii) provides that the student is entitled to FEE-HELP assistance if the student has, on or before the census date completed, signed and given to an appropriate officer of the higher education provider a request for Commonwealth assistance in relation to the unit or, where the course of study of which the unit forms a part is, or is to be, undertaken with the provider, in relation to the course of study.
Section 104-2 deals with failure by a student to complete previous units accessed through Open Learning Australia. Item 28 amends section 104-2 to have the effect of providing that a student is not entitled to FEE-HELP assistance for a unit of study access to which is provided by Open Learning Australia. Item 29 amends paragraph 104-2(a) to have the effect of providing that the term "Open Learning Australia" as defined in the dictionary in Schedule 1 is not applicable to paragraph 104-2(a).
Item 30 At the end of section 115-1 (before the note)
Amends section 115-1 to have the effect of providing that the purpose of OS-HELP assistance is to help students based in Australia to do part of their course of study overseas.
Items 31-34 Paragraphs 118-1(1)(c), 118-1(1)(d), 118-1(1)(h), and 118-1(1)(i)
Section 118-1 deals with entitlement to OS-HELP assistance.
Item 31 amends paragraph 118-1(1)(c) to have the effect of providing that a student is entitled to OS-HELP assistance if the student is enrolled in a undergraduate course of study with a higher education provider (the home provider). Item 32 repeals paragraph 118-1(1)(d) and substitutes a new paragraph to have the effect of providing that a student is entitled to OS-HELP assistance if the student meets the prior study requirements under section 118-7.
Item 33 amends paragraph 118-1(1)(h) to have the effect of providing that a student is entitled to OS-HELP assistance if the student has signed and given a request for Commonwealth assistance to an appropriate officer of the home provider. Item 34 amends paragraph 118-1(1)(i) to have the effect of providing that a student is entitled to OS-HELP assistance if the home provider has selected the student for receipt of OS-HELP assistance.
Inserts a new section dealing with prior study requirements for OS-HELP assistance. Proposed new section 118-7 provides that the prior study requirements for OS-HELP assistance are that:
- •
- the student has completed units of study in Australia that count towards the course requirements for the course of study; and
- •
- the units of study have a total EFTSL value of at least one EFTSL; and
- •
- the student was a Commonwealth supported student in relation to the units.
Items 36 and 37 Subparagraph 118-10(a)(i) and Paragraph 118-10(c)
Section 118-10 deals with the overseas study requirements for OS-HELP assistance. Item 36 amends subparagraph 118-10(a)(i) to have the effect of providing that one of conditions for the overseas study requirements for OS-HELP assistance is that the student is enrolled with the home provider in full time study at an overseas campus or another higher education provider in full time study at an overseas campus. Item 37 amends paragraph 118-10(c) by replacing the word "the provider" with "the home provider".
Amends subsection 118-15(1) to have the effect of providing that the guidelines for OS-HELP assistance may include principles that higher education providers must follow when selecting students for receipt of OS-HELP assistance.
Item 39 Paragraph 137-10(2)(a)
Section 137-10 deals with FEE-HELP debts. Item 39 amends paragraph 137-10(2)(a) to have the effect of providing that the amount of the FEE-HELP debt is an amount equal to 120% of the loan where the loan relates to an undergraduate course of study.
Item 40 After subsection 164-10(1)
Section 164-10 contains general provisions relating to how the Commonwealth makes advances to higher education providers and other bodies. Item 40 inserts new subsections 164-10(1A) and 164-10(1B).
Proposed new subsections 164-10(1A) and 164-10(1B) provide that if the advance exceeds the amount that becomes payable under the proposed subsection 164-10(1A) or if the provider or other body uses the advance for a purpose other than that for which it was given under the proposed subsection 164-10(1B), an amount equal to that excess or that advance may be:
- •
- deducted from any amount that is payable, or to be paid, to the provider or body under this Act; or
- •
- recovered by the Commonwealth from the provider or body as a debt due to the Commonwealth.
Repeals the subsection 164-10(2) and substitutes a new subsection to have the effect of providing that the conditions that would be applicable to a payment of the amount on account of which the advance is made are applicable to that advance.
Section 169-20 deals with exemption from paying student contribution amounts and tuition fees. Item 42 repeals subsection 169-20(3) and substitutes a new subsection to have the effect of providing that a student is an exempt student for a unit of study undertaken with a higher education provider as part of a course of study with that provider if the provider has awarded the student an exemption scholarship for the course and the provider awarded the scholarship in accordance with any requirements specified in the Administration Guidelines.
Item 43 After subsection 169-20(3)
Inserts new subsections 169-20(3A) and 169-20(3B).
Proposed new subsection 169-20(3A) provides that a student is an exempt student for a unit of study undertaken with one higher education provider as part of a course of study with another provider (the home provider) if:
- •
- the home provider has awarded the student an exemption scholarship for the course; and
- •
- the home provider awarded the scholarship in accordance with any requirements specified in the Administration Guidelines; and
- •
- the student must undertake the unit because it is required to complete the course.
Proposed new subsection 169-20(3B) provides that a student is an exempt student for a unit of study undertaken with one higher education provider (the host provider) as part of a course of study undertaken with another if:
- •
- the host provider has awarded the student an exemption for the unit; and
- •
- the host provider awarded the scholarship in accordance with any requirements specified in the Administration Guidelines.
Items 44 and 45 Sections 190-15(note) and 190-15(20)(note)
Technical amendments to the wording of sections 190-15(note) and 190-20(note) substituting reference to "subsection (1)" with a reference to "subsection (1) or (1A)" as a result of amendments made by the Higher Education Legislation Amendment Act (No. 2) 2004.
Items 46-49 Paragraphs 193-1(1)(b), 193-1(2A)(b), 193-1(2C)(b) and 193-1(2C)(c)
Section 193-1 contains requirements on higher education providers relating to tax file numbers.
Item 46 repeals the paragraph 193-1(1)(b) and substitutes a new paragraph to have the effect of providing that a higher education provider must notify a person how to meet the tax file number requirements if the person has, on or before the census date for the unit, completed, signed and given to the appropriate officer of the provider a request for Commonwealth assistance in relation to the unit or the course of study (where the course of study of which the unit forms a part is undertaken with the provider).
Item 47 amends paragraph 193-1(2A)(b) to have the effect of providing that Open Learning Australia must notify a person how to meet the tax file number requirements if a request for Commonwealth assistance is signed and given to an appropriate officer of Open Learning Australia. Item 48 amends the wording of paragraph 193-1(2C)(b) as a result of the amendment made by Item 49. Item 49 repeals the paragraph 193-1(2C)(c).
Amends paragraph 193-1(3)(b) to have the effect of providing that a higher education provider must notify a person how to meet the tax file number requirements if the person has, before receiving OS-HELP assistance, completed, signed and given to an appropriate officer of the provider a request for Commonwealth assistance.
Items 51 and 52 Clause 1 of Schedule 1
Amends the dictionary of defined terms in Schedule 1 by adding definitions of postgraduate course of study and undergraduate course of study.
Schedule 2 - Amendment of the Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003
Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003
Amends item 5 to the effect that the definition of institution under this item only applies in relation to Part 1 of Schedule 1.
Amends item 9 to the effect that the definition of institution under this item has the same meaning as in Chapter 4A of the old Act and only applies in relation to Part 2 of Schedule 1.
Item 3 Before item 18 of Part 6 of Schedule 1
Inserts a new item 17A in Part 6 of Schedule 1 providing transitional arrangements for reductions in new grants to take account of grants made under section 20A of the Higher Education Funding Act 1988 (the old Act).
Proposed subitem 17A(1) provides that if the Minister determines a special purpose grant under section 20A of the old Act for an institution (as defined in that Act) in respect of a transitional adjustment year, then the amounts of grant payable to the institution under section 33-1 of the new Act in respect of the year next following that year, the 2 years next following that year or the 3 years next following that year, are reduced by amounts that equal in total the amount of the special purpose grant.
Proposed subitem 17A(2) has the effect of providing that, for the purposes of item 17A, transitional adjustment year means the year 2002, 2003 or 2004.
Items 4 Paragraph 20(1)(a) of Schedule 1
Amends paragraph 20(1)(a) to have the effect of providing that an institution means an institution as defined for the purposes of Chapter 4 of the old Act.
Item 5 Paragraph 22A(1)(a) of Schedule 1
Amends paragraph 22A(1)(a) to have the effect of deleting the definition of institution in this paragraph.
Item 6 Paragraph 22A(1)(b) of Schedule 1
Amends paragraph 22A(1)(b) and removes the reference to 'or body' in this paragraph, to the effect that the paragraph refers to a scholarship provided by an institution (within the meaning of the old Act) or by an institution referred to in Schedule 1 of the old Act.
Item 7 At the end of item 22A of Schedule 1
Item 7 clarifies the meaning of institution for the purposes of item 22A in Schedule 1. For the purposes of item 22A, institution means an institution or body mentioned either in subsection 34(4) of the old Act; or in the definition of institution in subsection 98A(1) of the old Act, or in Schedule 1 of the old Act.
Item 8 After item 23 of Schedule 1
Inserts a new item 23A in Part 6 of Schedule 1 to provide transitional arrangements for OS-HELP prior study requirements.
Proposed subitem 23A(1) has the effect of providing that item 23A applies where:
- •
- a student has completed a unit of study in Australia that counts towards the course requirements for a course of study at an institution; and
- •
- the student undertook the unit of study at the institution in a semester; and
- •
- the census date for the course for the semester is before 1 January 2005; and
- •
- either the course of study was a designated course of study and the student was a contributing student in relation to the course, or the student was a merit-based equity scholarship holder in relation to the course; and
- •
- on or after 1 January 2005, the student is enrolled in an undergraduate course of study with a higher education provider (the OS-HELP course) and the unit of study counts towards the requirements of that course.
Proposed subitem 23A(2) has the effect of providing that, for the purposes of item 23A, such a unit is a pre HESA unit and is taken to have an EFTSL value equal to its EFTSU value.
Proposed subitem 23A(3) has the effect of providing that, where item 23A applies, the prior study requirements in relation to the OS-HELP course for the purposes of paragraph 118-1(1)(d) of the new Act are that the sum of:
- •
- the total EFTSL value of all the pre HESA units of study completed by the student; and
- •
- the total EFTSL value of all other units of study (if any) that the student has completed in Australia that count towards the course requirements for the OS-HELP course and in relation to which the student was a Commonwealth supported student is at least one EFTSL.
Proposed subitem 23A(4) defines the terms census date, contributing student, designated course of study, EFTSU value and merit-based equity scholarship holder and institution for the purposes of item 23A.
Item 9 Item 24 of Schedule 1 (definition of new Act)
Corrects an error in the definition of new Act for the purposes of Schedule 1.
Schedule 3 - Amendment of the Australian National University Act 1991
Australian National University Act 1991
Amends subsection 10(7) to increase from 28 days to 60 days the time within which the Minister must act on written advice from the Nominations Committee of Council recommending that a person be appointed to the Council.
Schedule 4 - Amendment of the Australian Research Council Act 2001
Australian Research Council Act 2001
Item 1 At the end of subsection 48(2)
Inserts a new paragraph 48(2)(d) to add the financial year starting on 1 July 2007 to the years to which Division 1 of Part 7 of the Act applies. Division 1 deals with financial assistance for approved research programs.
Item 2 Paragraphs 49(e), (f) and (g)
Repeals paragraphs 49(e), (f) and (g) and inserts new paragraphs (e)-(h) to vary the level of financial assistance for approved research programs for the financial years starting on 1 July 2004, 1 July 2005 and 1 July 2006 to reflect revised forward estimates and to provide financial assistance for approved research programs for the financial year starting on 1 July 2007.
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