Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Education, the Hon Jason Clare MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

HIGHER EDUCATION SUPPORT AMENDMENT (2022 MEASURES NO. 1) BILL 2022

The Higher Education Support Amendment (2022 Measures No. 1) Bill 2022 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The purpose of the Bill is to amend the Higher Education Support Act 2003 (HESA).

The Bill will amend the definition of a 'grandfathered student' to include students undertaking an honours course that is related to a course of study they commenced with a higher education provider before 1 January 2021 but that they did not complete until after 1 January 2021.

The proposed amendment to the definition of a 'grandfathered student' in HESA will clarify grandfathering arrangements under the Job-ready Graduates package of reforms to higher education. The Higher Education Support Amendment (Job-ready Graduates and Supporting Regional and Remote Students) Act 2020 amended HESA to change student and Commonwealth contribution amounts, to encourage students to enrol in courses in areas of job growth. Those amendments inserted a definition of 'grandfathered student' in Schedule 1 of HESA to treat certain existing students (on and after 1 January 2021) beneficially where the changes would otherwise result in those students being charged a higher student contribution amount.

Under the current definition, Commonwealth supported students who completed a course at the bachelor level after 1 January 2021 do not fall within the definition of 'grandfathered student' when they commence a subsequent related honours course. The current definition of a 'grandfathered student' only applies where a student completed the bachelor level course prior to 1 January 2021. Where a student commences or transfers to a new related honours course after 1 January 2021, they are also not covered by the definition.

The policy intention is that a student should be a 'grandfathered student' where they commenced a bachelor level course before 1 January 2021 and subsequently commence a related honours course, regardless of when the bachelor level course is completed.

To benefit the greatest number of students, these amendments will apply to any student who meets the new definition and undertakes a unit of study in an ongoing course or an honours course with a census date on or after 1 January 2021, whether the person enrolled in that unit before, on or after the amendments commence. This means some students will retrospectively become grandfathered students, and any student contribution amounts deferred to the Higher Education Loan Program (HELP) or paid upfront may need to be re-credited or refunded, respectively.

To ensure the seamless and beneficial transition of these amendments in relation to students affected retrospectively (defined as 'affected students'), the Bill also includes application and transitional provisions which set out the steps that a higher education provider must take in respect of an affected student for units that form part of the relevant honours course with a census date in the period from 1 January 2021 to the commencement of the relevant provisions in the Bill (the 'transition period'). The actions the higher education provider must take will depend on whether the student has made a full up-front, partial up-front or no upfront payment of the student contribution amount as well as the amount of any up-front payments made, and include a re-credit of an affected student's HELP balance and/or a refund of an excess up-front payment amount to the student. Compliance with the application and transitional provisions is taken to be a condition of a grant made to a higher education provider under Part 2-2 of HESA. Further, the Bill enables the Minister to make transitional rules relating to the amendments, or repeals, made by the Bill, with certain limits imposed. This is also intended to be a beneficial measure for affected students.

The Bill also makes a technical amendment to HESA to clarify that a student whose course of study is discontinued by their provider, and who is forced to transfer to a new course of study, will be treated as a grandfathered student. These students are already grandfathered under HESA; however, this amendment puts this beyond doubt and provides clarity and certainty for students and providers.

The Bill will also introduce new provisions to HESA to partially or completely reduce outstanding HELP debts for eligible health practitioners working in rural, remote or very remote Australia. The measure also allows for the waiver of indexation in relation to eligible health practitioners' HELP debts while they are completing eligible work in a rural, remote, or very remote area.

This measure is intended to encourage initial employment and retention of health practitioners to work in rural, remote or very remote areas of Australia, addressing issues of equity and access to healthcare in these areas.

Analysis of human rights implications

The Bill engages:

•

the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

•

the right to health - Article 12 of the ICESCR.

Article 13: Right to education

The Bill engages the right to education, which is set out in Article 13 of the ICESCR. Article 13 recognises the important personal, societal, economic and intellectual benefits of education. Article 13 provides that secondary education in all its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means.

The proposed amendment to the definition of a 'grandfathered student' will capture more students than the previous definition, as it will include students who undertake an honours course that is related to a course of study they commenced before 1 January 2021. This will mean that an increased number of students will pay a reduced student contribution amount for a place in a unit of study. This will reduce the financial burden on those students and improve their access to education.

The proposed amendments relating to the reduction of outstanding HELP debts for eligible health practitioners working in rural, remote or very remote Australia promotes the right to education by providing a post-study economic benefit of reducing all or part of a health practitioner's HELP debt. This promotes the right to education as it reduces the financial burden on health practitioners for debts incurred in the course of pursuing higher education.

Article 12: Right to Health

The Bill also engages the right to health, which is set out in Article 12 of the ICESCR. Article 12 recognises the right of all persons to the enjoyment of the highest attainable standard of physical and mental health.

The proposed amendments relating to the reduction of outstanding HELP debts for eligible health practitioners working in rural, remote or very remote Australia provide a financial incentive for health practitioners to consider working in rural, remote and very remote areas. These areas have historically experienced shortages of these key health workers which has been a contributing factor towards the measurably lower health outcomes in these regions compared to the Australian average. Increasing the number of health practitioners in these areas will help address the inequity in access to health services and thereby improve health outcomes for Australians living in rural, remote and very remote areas.

Conclusion

The Bill is compatible with human rights as it supports the rights to education and health.