Explanatory Memorandum
(Circulated by authority of the Minister for Education, Science and Training, the Honourable Dr Brendan Nelson MP)Schedule 1 - Amendment of the Higher Education Support Act 2003
Some of the amendments made by this Schedule rely on the prior enactment of the Higher Education Legislation Amendment (2005 Measures No. 1) Act 2005.
Part 1 - Amendments commencing on Royal Assent
The amendments made by items 3-11 of this Part are intended to allow providers to submit and publish more than one schedule of fees and student contribution amounts per year and to submit and publish the schedules by the date or dates specified in the Higher Education Provider Guidelines without reference to particular or preceding years. They are also intended to allow providers, with the approval of the Minister (or in the circumstances specified in the Higher Education Provider Guidelines) to vary those amounts and fees.
Corresponding amendments are made by items 16-22 of this Part in relation to Open Learning Australia. In the case of Open Learning Australia, it is intended that the relevant dates and circumstances will be specified in the FEE-HELP Guidelines.
Section 19-45 makes provision for student grievance and review procedures as part of the fairness requirements higher education providers must adhere to. Item 1 replaces subsection 19-45(4) with a new subsection to enable guidelines to be made concerning decisions by the provider under section 36-22 (dealing with work experience in industry) in addition to decisions relating to assistance under Chapter 3 (dealing with assistance to students). This amendment reflects amendments made by items 51 and 55.
This amendment will also allow the Guidelines to deal with advice to be given to students about how to apply for a review. It will enable the Guidelines to specify that particular types of information are to be included in notices to students who have sought a review of a decision.
Item 2 Transitional - section 19-45 of the Higher Education Support Act 2003
Provides that the amendment of section 19-45 of the Higher Education Support Act 2003 made by this Part does not affect the continuity of any Higher Education Provider Guidelines made before the commencement of this item.
Section 19-87 makes provisions for determining student contribution amounts for a place in a unit of study that a higher education provider provides. Item 3 amends paragraph 19-87(1)(a) to have the effect of enabling the Higher Education Provider Guidelines to specify the period in respect of which a unit of study provided by a higher education provider comes within the ambit of section 19-87. Item 4 amends subsection 19-87(2) as a result of the amendment made by item 3.
Items 5 and 8 At the end of sections 19-87 and 19-90
Insert new subsections 19-87(3) and 19-90(4) which have the effect of providing that a higher education provider must not vary a student contribution amount or a tuition fee unless the variation was made before the date ascertained and in the circumstances specified in the Higher Education Provider Guidelines or with the written approval of the Minister.
Section 19-90 makes provision for determining tuition fees for a unit of study that a higher education provider provides. Item 6 amends subsection 19-90(1) to have the effect of enabling the Higher Education Provider Guidelines to specify the period in respect of which a unit of study provided by a higher education provider comes within the ambit of section 19-90. Item 7 amends subsection 19-90(2) as a consequence of the amendment made by item 6.
Section 19-95 deals with a schedule of the student contribution amounts for places and tuition fees that a higher education provider must give to the Minister. Items 9 and 10 amend subsection 19-95(1) and paragraph 19-95(2)(b) as a consequence of amendments made by items 3, 5, 6 and 8.
Item 11 At the end of section 19-95
Inserts new subsections 19-95(3) and (4). Proposed subsection 19-95(3) has the effect of providing that, where a higher education provider varies a student contribution amount or a tuition fee, a replacement schedule incorporating the variation must be given to the Minister.
Proposed subsection 19-95(4) provides that subsections 19-95(1) and (2) apply to the replacement schedule in a corresponding way to the way in which they apply to the previous schedule.
Item 12 Application of amendments - sections 19-87, 19-90 and 19-95 of the Higher Education Support Act 2003
This application provision has the effect of providing that the amendments to sections 19-87, 19-90 and 19-95 of the Higher Education Support Act 2003 made by this Part will apply from 1 January 2006 unless the provider chooses to have the amendments backdated to 1 January 2005.
Inserts a new section 36-23 to have the effect of providing that the obligation of providers to make repayments in relation to units wholly consisting of work experience in industry apply where a person enrolled in such a unit has no tax file number.
Item 14 After paragraph 79-1(aa)
Section 79-1 deals with re-crediting a person's Student Learning Entitlement. Item 14 inserts a new paragraph 79-1(aa) to clarify that section 79-1 does not apply in relation to a unit wholly consisting of work experience in industry.
Item 15 At the end of Division 79
Inserts a new Subdivision 79-C which has the effect of providing that a higher education provider must (on the Secretary's behalf) re-credit a person's SLE with an amount equal to the EFTSL value of the unit of study if the provider cancels the person's enrolment in the unit under subsection 193-5(1) (due to the person's lack of a tax file number) and the unit does not wholly consist of work experience in industry.
Items 16-17, 19, and 21-22 Section 104-4
Section 104-1 deals with the obligation of Open Learning Australia to set tuition fees and a census date and the consequences of Open Learning Australia's failure to do so. The amendments to section 104-4 mirror those made by items 3-11 in relation to higher education providers except that in the case of the former the relevant dates and circumstances will be specified in the FEE-HELP Guidelines. Item 16 amends subsection 104-4(1) to have the effect of enabling the FEE-HELP Guidelines to specify the period for which a unit of study provided by Open Learning Australia comes within the ambit of section 104-4. Items 17, 19, 21, and 22 make consequential amendments to subsections 104-4(2), (5) and (6) and paragraphs 104-4(6)(a) and (b).
Items 18 and 20 After subsections 104-4(2) and 104-4(5)
Inserts new subsections 104-4(2A) and (5A) which have the effect of providing that Open Learning Australia must not vary a fee or a census date unless the variation was made before the date ascertained and in the circumstances specified in the FEE-HELP Guidelines. The written approval of the Minister is also required.
Item 23 Application of amendments-section 104-4 of the Higher Education Support Act 2003
This application provision has the effect of providing that the amendments to section 104-4 made by this Part will apply from 1 January 2006 unless the provider chooses to have the amendments backdated to 1 January 2005.
Inserts a new section 104-27 in relation to re-crediting a person's FEE-HELP balance where the person has no tax file number.
Proposed subsection 104-27(1) has the effect of providing that a higher education provider must (on the Secretary's behalf) re-credit a person's FEE-HELP balance if the person has been enrolled in the unit with the provider and the circumstances specified in subsection 193-10(1) apply to the person in relation to the unit.
Proposed subsection 104-27(2) has the effect of providing that Open Learning Australia must (on the Secretary's behalf) re-credit a person's FEE-HELP balance received for a unit of study if subsection 193-10(2) applies to the person in relation to the unit.
Items 25 and 26 Subsections 110-5(1) and (2)
Section 110-5 deals with the effect of a FEE-HELP balance being re-credited. Items 25 and 26 amend subsections 110-5(1) and (2) to reflect the insertion of new section 104-27 by item 24.
Currently students need to have at least 1 EFTSL left to complete in their course of study on completion of overseas study to be entitled to OS-HELP. Item 27 amends paragraph 118-1(1)(f) to reduce this requirement to 0.5 EFTSL.
Amends subsection 137-5(5) (dealing with the remission of HECS-HELP debts in relation to a unit of study that consists wholly of work experience in industry) to reflect the insertion of new section 36-23 by item 13.
Amends subsection 137-10(4) (dealing with the remission of FEE-HELP debts) to reflect the insertion of new section 104-27 by item 24.
Item 30 Subsection 140-25(1) (example)
Corrects an incorrect reference in the example in subsection 140-25(1).
Items 31-34 Subsection 169-25(1), paragraphs 169-25(3)(a) and (b) and subsection 169-25(4)
These items amend subsection 169-25(1) and paragraphs 169-25(3)(a) and (b), repeal subsection 169-25(4) and substitute a new subsection to allow providers to vary the published census dates and EFTSL values in a manner, by the date or dates and in the circumstances specified in the Administration Guidelines or with the written approval of the Minister.
The use of the term "period" in subsection 169-25(1) does not equate with the "period" mentioned in subsection 169-25(2).
Item 35 Application of amendments - section 169-25 of the Higher Education Support Act 2003
This application provision has the effect of providing that the amendments to section 169-25 made by items 31-34 will apply from 1 January 2006 unless the provider chooses to have the amendments backdated to 1 January 2005.
Insert new subsections 187-1(1AA) and 187-1(7), repeal paragraphs 187-1(3)(a) and (b) and substitute new paragraphs and amend subsection 187-1(3A) to ensure that a student is only taken to have met the Tax File Number (TFN) requirements for a given course of study when the student has provided the TFN in relation to that course of study (through a request for Commonwealth assistance). In other words, providing a TFN for one course of study should not lead to the student meeting the TFN requirements for other courses of study.
Item 40 Division 193 (heading)
Amends the heading for Division 193 to reflect the amendments relating to tax file numbers made by items 41-44.
Insert new paragraphs 193-5(1)(c) and (d), new subsection 193-5(5) and new section 193-10 and amend subsection 193-5(2) to limit the cancellation of enrolments of people without tax file numbers to people entitled to HECS-HELP who have not paid their 80% student contribution. These items also clarify that where a person who is entitled to HECS-HELP does not have a Tax File Number (TFN) or has not paid their 80% student contribution, their enrolment as a Commonwealth supported student in that unit must be cancelled. A provider is permitted, at its discretion, to enrol that person on a non-Commonwealth supported basis.
Insert new subsection 198-10(3) and amend note 2 to section 198-1 of Division 198 in Part 5-6 dealing with indexation to have the effect of allowing any Guideline to provide for indexation of an amount using the method of indexation set out in Part 5-6. If an amount that has been indexed consists of an amount made up of dollars and cents, the amount is to be rounded down to the nearest dollar.
Item 47 Application of amendment - subsection 198-10(3) of the Higher Education Support Act 2003
Provides that subsection 198-10(3) (inserted by item 46 and dealing with rounding down) applies to amounts indexed after the commencement of this item.
Item 48 After subsection 209-10(5)
Inserts new subsections 209-10(5A) and (5B) which provide that, where a person has requested a reconsideration of a reviewable decision, the reviewer must give the person written notice of the decision on review. The notice must be given within a reasonable period after the decision on review is made and must contain a statement of the reasons for the decision.
Item 49 Application of amendment - subsections 209-10(5A) and (5B)
Provides that subsections 209-10(5A) and (5B) apply to a decision on review that is made after the commencement of this item.
Item 50 At the end of section 238-10
Inserts a new subsection 238-10(3) to provide that Guidelines may provide for the indexation of any or all amounts in the Guidelines, using the method of indexation set out in Part 5-6 to reflect the amendments to Part 5-6 made by items 45-46.
Part 2 - Amendments commencing 28 days after Royal Assent
Repeals paragraph 19-45(1)(c) and inserts a new paragraph which has the effect of providing that, as part of the fairness requirements in Subdivision 19D, a higher education provider must have a review procedure for dealing with review of decisions made by the provider under section 36-22 (dealing with work experience in industry) in addition to decisions relating to assistance under Chapter 3 (dealing with assistance to students).
As a consequence of amendments made by items 51 and 55, these items amend subsections 19-50(1) and (2) to have the effect of providing that, as part of the fairness requirements in Subdivision 19D, a higher education provider must appoint a review officer to undertake reviews of decisions made by the provider under section 36-22 in addition to decisions relating to assistance under Chapter 3.
Amends subsection 19-60(1) to have the effect of providing that a higher education provider must comply with the information privacy principles set out in section 14 of the Privacy Act 1988 in respect of personal information obtained for the purposes of section 36-22 or Chapter 3 or 4. This reflects amendments made by items 51 and 55.
Amends subsection 36-22(1) to require a higher education provider to determine (on the Secretary's behalf) that section 36-22 (dealing with the requirement for providers to repay amounts etc. for units wholly consisting of work experience in industry in special circumstances) applies to a person in specified circumstances.
Items 56-58 Paragraph 36-22(1)(a), section 206-1 (note 1) and subsection 209-1(2) (note 1)
Amends paragraph 36-22(1)(a), note 1 to section 206-1 and note 1 to subsection 209-1(2) as a consequence of amendments made by item 55.
Amends subsection 238-1(2) to have the effect of providing that the Secretary may (in writing) delegate to a review officer of a higher education provider the Secretary's powers under Division 209 (dealing with how decisions are reconsidered) to reconsider reviewable decisions made by the provider under section 36-22, in addition to reviewable decisions made by the provider relating to assistance under Chapter 3.
Part 3 - Amendments commencing on 1 January 2004
Items 60 and 61 Clause 1 of Schedule 1 definitions of overseas student and student
Repeal and substitute a new paragraph (b) of the definition of overseas student and amend the definition of student in clause 1 of Schedule 1 to clarify that the definitions include a unit of study access to which was provided by Open Learning Australia.
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