Explanatory Memorandum
(Circulated by authority of the Minister for Education, Science and Training, the Honourable Julie Bishop MP)Schedule 5 - Residency requirements for Commonwealth assistance
Higher Education Support Act 2003
Item 1 - Paragraph 36-10(1)(c)
Subsection 36-10(1) deals with when a provider must not advise that a person is a Commonwealth supported student.
Item 1 is a technical amendment to reflect the amendments made by item 2 of Schedule 5 below. Item 1 deletes and replaces paragraph 36-10(1)(c).
The effect of this amendment is that a higher education provider must not advise a person that he or she is a Commonwealth supported student in relation to a unit of study unless the other requirements in subsection 36-10(1) are met and the person meets the citizenship or residency requirements for the purposes of this proposed paragraph 36-10(1)(c). The citizenship or residency requirements are set out in proposed new subsections 36-10(2) and 36-10(2A).
Item 2 deletes and replaces subsection 36-10(2) and inserts new proposed subsections 36-10(2A) and 36-10(2B).
Proposed new subsection 36-10(2) provides that a person meets the citizenship or residency requirements for the purposes of paragraph 36-10(1)(c) if the person is:
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- an Australian citizen; or
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- a citizen of New Zealand who will be resident within Australia for the duration of the unit; or
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- a permanent visa holder who will be resident within Australia for the duration of the unit.
Proposed new subsection 36-10(2A) provides that in determining, for the purposes of subparagraph 36-10(2)(b) or (c), whether a person will be resident within Australia for the duration of the unit of study, disregard any period of residence outside Australia if:
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- it cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit; or
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- it is required for the purpose of completing a requirement of that unit.
Proposed new subsection 36-10(2B) provides that despite subsections 36-10(2) and (2A), a person does not meet the citizenship or residency requirements under paragraph 36-10(2)(b) or (c), if the higher education provider reasonably expects that he or she will not undertake in Australia any units of study contributing to the course of study of which the unit forms a part.
The intention of item 2 is to clarify that a person is not eligible for Commonwealth support or assistance for a unit of study if the provider can reasonably expect that the student will not be residing in Australia for the duration of any units of study contributing to the course of study in which they are enrolled.
However, if a person will not be residing in Australia because it is a requirement of the unit of study that they be overseas, then that person may have access to Commonwealth support and assistance for that unit of study.
Division 90 deals with who is entitled to HECS-HELP assistance. Section 90-5 deals with the citizenship or residency requirements for HECS-HELP assistance.
Item 3 deletes and replaces section 90-5.
Proposed new subsection 90-5(1) provides that a student meets the citizenship or residency requirements under this section in relation to a unit of study if the student is:
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- an Australian citizen; or
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- a permanent humanitarian visa holder who will be resident in Australia for the duration of the unit.
Proposed new subsection 90-5(2) provides that in determining, for the purpose of paragraph 90-5(1)(b), whether the student will be resident in Australia for the duration of the unit, any period of residence outside Australia that cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of that unit or is required for the purpose of completing a requirement of that unit, is to be disregarded.
Proposed new subsection 90-5(3) provides that despite subsections 90-5(1) and 90-5(2), a permanent humanitarian visa holder does not meet the citizenship or residency requirements in relation to a unit of study if the provider reasonably expects that the visa holder will not undertake in Australia any units of study contributing to the course of study of which the unit forms a part.
The intention of item 3 is to clarify that a person is not eligible for HECS-HELP assistance for a unit of study if the provider can reasonably expect that the student will not be residing in Australia for the duration of any units of study contributing to the course of study in which they are enrolled.
However, if a person will not be residing in Australia because it is a requirement of the unit of study that they be overseas, then that person may have access to HECS-HELP assistance for that unit of study.
Division 104 deals with who is entitled to FEE-HELP assistance. Section 104-5 deals with the citizenship or residency requirements for FEE-HELP assistance.
Item 4 deletes and replaces section 104-5.
Proposed new subsection 104-5(1) provides that a student meets the citizenship or residency requirements under section 104-5 in relation to a unit of study if the student is:
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- an Australian citizen; or
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- a permanent humanitarian visa holder who will be resident in Australia for the duration of the unit; or
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- if the student is undertaking, or is to undertake, the unit as part of a bridging course for overseas-trained professionals-a permanent visa holder who will be resident in Australia for the duration of the unit.
Proposed new subsection 104-5(2) provides that in determining, for the purpose of paragraph 104-5(1)(b) or (c), whether the student will be resident in Australia for the duration of the unit, any period of residence outside Australia that cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit or is required for the purpose of completing a requirement of that unit, is to be disregarded.
Proposed new subsection 104-5(3) provides that despite subsections (1) and (2), a permanent humanitarian visa holder or permanent visa holder does not meet the citizenship or residency requirements in relation to a unit of study if the provider reasonably expects that the visa holder will not undertake in Australia any units of study contributing to the course of study, or the bridging course for overseas-trained professionals, of which the unit forms a part.
The intention of item 4 is to clarify that a person is not eligible for FEE-HELP assistance for a unit of study (or a unit that is part of a bridging course for overseas-trained professionals) if the provider can reasonably expect that the student will not be residing in Australia for the duration of the unit of study in which they are enrolled.
However, if a person will not be residing in Australia because it is a requirement of the unit of study that they be overseas, then that person may have access to FEE-HELP assistance for that unit of study.
Item 5 is an application provision which provides that the amendments made by Schedule 5 apply in relation to a unit of study in which a student enrols after the commencement of the Schedule, which is on Royal Assent.
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