Education Legislation Amendment (Tuition Protection and Other Measures) Act 2019 (111 of 2019)

Schedule 2   HELP tuition protection

Part 1   Main amendments

Division 1   Amendments

Higher Education Support Act 2003

16   After Part 5-1

Insert:

Part 5-1A - Tuition protection

Division 1 - Preliminary

166-1 What this Part is about

Certain higher education providers who default in delivering a unit of study to students receiving or entitled to FEE-HELP assistance or HECS-HELP assistance for the unit must give information about the default to the HELP Tuition Protection Director and to affected students.

The HELP Tuition Protection Director must assist affected students to find replacement courses. If the Director is not satisfied that there is a suitable replacement course for an affected student, or if the student elects re-crediting, the student's HELP balance is re-credited.

166-5 Application of this Part

(1) This Part applies to higher education providers other than:

(a) *Table A providers; or

(b) providers of a kind prescribed by the Higher Education Provider Guidelines.

(2) Despite subsection (1), the Minister may, by written notice, determine that this Part:

(a) applies to a specified higher education provider; or

(b) does not apply to a specified higher education provider.

(3) A determination under subsection (2):

(a) may be made either unconditionally or subject to conditions; and

(b) may be expressed to be in force indefinitely or for a specified period.

(4) A determination made under subsection (2) is not a legislative instrument.

(5) Despite subsection (1), sections 166-27 and 166-30 apply to all higher education providers.

Note: Section 166-27 deals with provider obligations to provide information about replacement courses and section 166-30 deals with obligations of providers who provide replacement courses.

166-10 When a higher education provider defaults in relation to a student

(1) A higher education provider defaults in relation to a student if:

(a) the provider fails to start to provide a unit of study to the student on the day on which the unit was scheduled to start; and

(b) the student has not withdrawn before that day; and

(c) the student was entitled, or would have been entitled, to *FEE-HELP assistance or *HECS-HELP assistance for the unit of study.

(2) A higher education provider defaults in relation to a student if:

(a) the provider ceases to provide a unit of study to the student on a day after the unit starts but before it is completed; and

(b) the student has not withdrawn before that day; and

(c) the student was entitled, or would have been entitled, to *FEE-HELP assistance or *HECS-HELP assistance for the unit of study.

(3) A higher education provider defaults in relation to a student if circumstances prescribed by the Higher Education Provider Guidelines apply in relation to the provider and the student.

Division 2 - Obligations when a provider defaults in relation to a student

166-15 Higher education providers must give notice of default to HELP Tuition Protection Director

Application of section

(1) This section applies if a higher education provider *defaults in relation to a student.

Notifying the HELP Tuition Protection Director of default

(2) The higher education provider must, within 24 hours of the *default occurring, give written notice to the *HELP Tuition Protection Director of the circumstances of the default.

Notifying the HELP Tuition Protection Director of details of default

(3) The higher education provider must, within 3 business days of the *default occurring, give a written notice to the *HELP Tuition Protection Director specifying:

(a) the following information in relation to each student in relation to whom the provider has defaulted:

(i) the student's full name and contact details;

(ii) the units of study and the *course of study that the student was enrolled in at the time of the default;

(iii) the amount of the tuition fees for each unit of study that the student was enrolled in at the time of the default;

(iv) details about the payment of those tuition fees; and

(b) any other matter prescribed by the Higher Education Provider Guidelines.

(4) If requested in writing by the *HELP Tuition Protection Director, the higher education provider must give to the Director a copy of a student's record of results for the *units of study that the student has completed.

Notice requirements

(5) A notice given under subsection (2) or (3) must comply with any requirements prescribed by the Higher Education Provider Guidelines.

Civil penalty

(6) A higher education provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

Offence

(7) A higher education provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

166-20 Higher education providers must give notice of default to affected students

Application of section

(1) This section applies if a higher education provider *defaults in relation to a student.

Notifying students of default

(2) The higher education provider must, within 24 hours of the *default occurring, give written notice of the default to the students in relation to whom the provider has defaulted.

Notice requirements

(3) A notice given under subsection (2) must comply with any requirements prescribed by the Higher Education Provider Guidelines.

Civil penalty

(4) A higher education provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

Offence

(5) An approved course provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

166-25 Student placement service

HELP Tuition Protection Director must decide

(1) If a higher education provider *defaults in relation to a student, the *HELP Tuition Protection Director must decide:

(a) that the Director is satisfied that there are one or more suitable *replacement courses for the student; or

(b) that the Director is not satisfied that there is a suitable replacement course for the student.

Matters relating to whether a course is a suitable replacement course

(2) In deciding whether the *HELP Tuition Protection Director is satisfied that there is a suitable *replacement course, the Director must have regard to the following matters:

(a) whether the replacement course leads to the same or a comparable qualification as the *original course;

(b) what course credits the student may receive for the units of study of the original course successfully completed by the student;

(c) whether the mode of delivery of the replacement course is the same as the mode of delivery of the original course;

(d) the location where the replacement course for a student will be primarily delivered;

(e) whether a student who enrols in the course:

(i) will incur additional fees that are unreasonable; and

(ii) will be able to attend the course without unreasonable impacts on the student's prior commitments;

(f) any other matters prescribed by the Higher Education Provider Guidelines.

Suitable replacement course available

(3) If paragraph (1)(a) applies, the *HELP Tuition Protection Director must give a written notice to the student that includes the following:

(a) a statement that the student may decide to do one of the following:

(i) enrol in a suitable *replacement course;

(ii) enrol in another course;

(iii) elect to have an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit *re-credited to the student's *HELP balance;

(b) a description of each suitable replacement course, including the qualification that the course leads to;

(c) the contact details of the provider of each suitable replacement course;

(d) an explanation that, if *tuition fees have been paid for the affected unit of the original course, tuition fees would not be payable for a *replacement unit of a suitable replacement course;

(e) an explanation that if the student chooses to enrol in another course, there is no obligation on the provider of the other course to offer a replacement unit without charge to the student;

(f) an explanation of the matters the Director must have regard to under subsection (2);

(g) any other matters prescribed by the Higher Education Provider Guidelines.

No suitable replacement course available

(4) If paragraph (1)(b) applies, the *HELP Tuition Protection Director must give a written notice to the student that includes the following:

(a) an explanation of the matters the Director must have regard to under subsection (2);

(b) an explanation of the student's right to request reconsideration, under section 209-10, of the Director's decision within 28 days after the day on which the student is given the notice;

(c) a statement that, to facilitate early re-crediting, the student may, at any time during the 28 days, give the Director notice in writing that the student will not seek reconsideration of the decision;

(d) a statement that, if the student does not apply for reconsideration, an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit will be *re-credited to the student's *HELP balance.

166-27 Obligations of providers to provide information about replacement courses

(1) The *HELP Tuition Protection Director may, by notice in writing, require a higher education provider to provide such information that the Director reasonably requires to enable the Director to make a decision under subsection 166-25(1) regarding suitable *replacement courses for a student in relation to whom a provider has *defaulted.

(2) The information must be provided:

(a) in a form (if any) approved by the *HELP Tuition Protection Directorfor the information; and

(b) in accordance with such other requirements as the Directormakes.

Civil penalty

(3) A higher education provider contravenes this subsection if:

(a) the provider is given a notice under subsection (1); and

(b) the provider fails to comply with the notice.

Civil penalty: 60 penalty units.

Offence

(4) A higher education provider commits an offence of strict liability if:

(a) the provider is given a notice under subsection (1); and

(b) the provider fails to comply with the notice.

Penalty: 60 penalty units.

166-30 Obligations of replacement providers

(1) This section applies if a student accepts an offer of a place in a *replacement course.

(2) The higher education provider who provides the *replacement course must give written notice of the acceptance to the *HELP Tuition Protection Director within 14 days of the acceptance.

(3) The higher education provider who provides the *replacement course must ensure that the student:

(a) is granted course credits for units of study of the *original course successfully completed by the student; or

(b) if the student has been charged a *student contribution amount or a *tuition fee for an *affected unit - is not charged a student contribution amount or a tuition fee for a *replacement unit of the replacement course; and

(c) is enrolled in the replacement course as soon as practicable.

Civil penalty

(4) A higher education provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

Offence

(5) A higher education provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

166-32 Obligations of replacement providers regarding enrolment information

(1) A higher education provider who provides a *replacement course to a student must keep up to date records of the following in relation to the student:

(a) the student's full name and contact details;

(b) the name of the replacement course and the *units of study the student is currently enrolled in;

(c) any *student contribution amounts or *tuition fees charged to the student for any units of the replacement course;

(d) details of the units of study successfully completed by the student;

(e) details of the course credits for units of study of the *original course successfully completed by the student granted to the student.

(2) A higher education provider contravenes this subsection if the provider fails to comply with this section.

Civil penalty: 60 penalty units.

(3) A higher education provider commits an offence of strict liability if the provider contravenes this section.

Penalty: 60 penalty units.

166-35 Notification obligations where there is no replacement course or student elects re-crediting

(1) This section applies if:

(a) a higher education provider *defaults in relation to a student; and

(b) either:

(i) the *HELP Tuition Protection Director decides, under paragraph 166-25(1)(b), that the Director is not satisfied that there is a suitable *replacement course for the student; or

(ii) the student elects, under subparagraph 166-25(3)(a)(iii), to have an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit *re-credited to the student's *HELP balance.

(2) The *HELP Tuition Protection Director must give a written notice to the *Secretary of that fact.

(3) The *HELP Tuition Protection Director must give a written notice to the provider stating that an amount equal to the amounts of *FEE-HELP assistance or *HECS-HELP assistance that the student received for the *affected unit will be *re-credited to the student's *HELP balance.

Part 5-1B - HELP Tuition Protection Fund, HELP Tuition Protection Director and HELP Tuition Protection Fund Advisory Board

Division 1 - HELP Tuition Protection Fund

167-1 Name of Fund

(1) The *HELP Tuition Protection Fund is established by this section.

(2) The *HELP Tuition Protection Fund is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.

167-5 Credits to the HELP Tuition Protection Fund

There must be credited to the *HELP Tuition Protection Fund amounts equal to the following:

(a) each amount of *HELP tuition protection levy received from a higher education provider;

(b) each amount paid by a higher education provider to the Commonwealth under paragraph 36-24A(2)(b), or subsection 110-5(1) because of re-crediting under section 104-42, if the balance of the Fund had previously been reduced under paragraph 167-10(1)(f) in relation to that amount;

(c) any other money appropriated by the Parliament for the purposes of the HELP Tuition Protection Fund;

(d) any penalties for late payment of HELP tuition protection levy;

(e) each amount received by the Commonwealth for the purposes of the HELP Tuition Protection Fund.

Note 1: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account.

Note 2: HELP tuition protection levy is imposed by the Higher Education Support (HELP Tuition Protection Levy) Act 2019. The Higher Education Provider Guidelines deal with collection of the levy: see section 19-66A.

167-10 Purposes of the HELP Tuition Protection Fund

(1) The purposes of the *HELP Tuition Protection Fund are as follows:

(a) making payments in connection with tuition protection;

(b) paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in the performance of the *HELP Tuition Protection Director's functions, including in managing the HELP Tuition Protection Fund;

(c) paying any remuneration and allowances payable to the HELP Tuition Protection Director;

(d) paying any remuneration and allowances payable to the members of the *HELP Tuition Protection Fund Advisory Board;

(e) paying any amount that is required or permitted to be repaid;

(f) reducing the balance of the Fund (and therefore the available appropriation for the Fund) without making a real or notional payment.

Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).

(2) The Higher Education Provider Guidelines may, for the purposes of paragraph (1)(a), make provision in relation to such payments, including in relation to the following:

(a) the circumstances in which payments may be made;

(b) amounts of different kinds of payments;

(c) methods for calculating different kinds of payments.

Note: For example, the Higher Education Provider Guidelines may provide that a replacement provider may receive a transfer payment if a student accepts an offer of a replacement course with the provider.

(3) The purposes in subsection (1) do not include paying or discharging any costs, expenses or other obligations associated with services provided to the *HELP Tuition Protection Director by any employee or officer of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013).

Division 2 - HELP Tuition Protection Director

167-15 HELP Tuition Protection Director

(1) There is to be a *HELP Tuition Protection Director.

(2) The office of *HELP Tuition Protection Director is to be held by the person who holds the office of TPS Director under section 54A of the Education Services for Overseas Students Act 2000.

Note: The TPS Director also holds the office of VSL Tuition Protection Director under the VET Student Loans Act 2016.

(3) The reference in subsection (2) to the person who holds the office of TPS Director includes a reference to a person acting in that office for the time being because of an appointment under section 54K of the Education Services for Overseas Students Act 2000.

167-20 Functions of the HELP Tuition Protection Director

(1) The *HELP Tuition Protection Director has the following functions:

(a) facilitating and monitoring the placement of students in relation to whom a higher education provider has *defaulted;

(b) paying amounts out of, or reducing the balance of, the *HELP Tuition Protection Fund under section 167-10;

(c) reporting to the Minister on:

(i) the operation of Part 5-1A (tuition protection); and

(ii) the financial status of the HELP Tuition Protection Fund;

(d) managing the HELP Tuition Protection Fund in a way that ensures that it is able to meet all its liabilities from time to time (including entering into a loan agreement for the benefit of the HELP Tuition Protection Fund);

(e) making the legislative instrument each year for the purposes of section 12 of the Higher Education Support (HELP Tuition Protection Levy) Act 2019;

(f) recommending that the Secretary take action against a higher education provider that has defaulted in relation to a student;

(g) any other function conferred by this Act or any other law of the Commonwealth;

(h) any other function that is incidental or conducive to the performance of the above functions.

(2) The *HELP Tuition Protection Director has power to do all things necessary or convenient to be done for, or in connection with, the performance of the Director's functions.

167-25 Administrative provisions relating to the HELP Tuition Protection Director

(1) Each provision of the Education Services for Overseas Students Act 2000 specified in column 1 of an item in the following table applies in relation to the *HELP Tuition Protection Director in accordance with columns 2 and 3 of the item.

(2) This subsection covers the following provisions of the Education Services for Overseas Students Act 2000:

(a) section 54C;

(b) section 54D;

(c) section 54E;

(d) section 54F;

(e) section 54J;

(f) section 54L;

(g) section 54N.

(3) For the purposes of section 54E of the Education Services for Overseas Students Act 2000, the Minister administering that Act is taken to have given approval to:

(a) the TPS Director to engage in paid employment as the *HELP Tuition Protection Director; and

(b) the HELP Tuition Protection Director to engage in paid employment as the TPS Director.

(4) The Minister may terminate the appointment of the TPS Director if:

(a) the TPS Director engages, except with the Minister's approval, in paid employment outside the duties of his or her office as *HELP Tuition Protection Director; or

(b) the HELP Tuition Protection Director fails, without reasonable excuse, to comply with section 54F of the Education Services for Overseas Students Act 2000 as applied to the HELP Tuition Protection Director by item 1 of the table in subsection (1) of this section.

(5) The *HELP Tuition Protection Director is not personally subject to any liability to any person (other than the Commonwealth) in respect of anything done, or omitted to be done, in good faith in the exercise or performance of powers or functions under this Act.

(6) In this section:

TPS Director has the same meaning as in the Education Services for Overseas Students Act 2000.

Division 3 - HELP Tuition Protection Fund Advisory Board

167-30 Establishment and membership

(1) The *HELP Tuition Protection Fund Advisory Board is established by this section.

(2) The members of the *HELP Tuition Protection Fund Advisory Board are the members of the TPS Advisory Board appointed under section 55D of the Education Services for Overseas Students Act 2000.

(3) The reference in subsection (2) to the members of the TPS Advisory Board includes a reference to a person for the time being acting as a member of that Board because of an appointment under subsection 55N(1) of the Education Services for Overseas Students Act 2000.

(4) The Chair of the *HELP Tuition Protection Fund Advisory Board is the Chair of the TPS Advisory Board appointed under subsection 55C(3) of the Education Services for Overseas Students Act 2000.

(5) The reference in subsection (4) to the Chair of the TPS Advisory Board includes a reference to a person for the time being acting as the Chair of that Board because of an appointment under subsection 55N(2) of the Education Services for Overseas Students Act 2000.

(6) The Deputy Chair of the *HELP Tuition Protection Fund Advisory Board is the Deputy Chair of the TPS Advisory Board appointed under subsection 55C(3) of the Education Services for Overseas Students Act 2000.

(7) Despite subsection 55C(2) of the Education Services for Overseas Students Act 2000, a person is eligible to be appointed to the TPS Advisory Board if the Minister is satisfied that the person has qualifications or experience that the Minister considers relevant to the performance of the *HELP Tuition Protection Fund Advisory Board's functions.

167-35 Function of the HELP Tuition Protection Fund Advisory Board

The *HELP Tuition Protection Fund Advisory Board's function is, either on its own initiative or at the request of the *HELP Tuition Protection Director, to provide advice and make recommendations to the Director in relation to the making of a legislative instrument each year under section 12 of the Higher Education Support (HELP Tuition Protection Levy) Act 2019.

167-40 Administrative provisions relating to the HELP Tuition Protection Fund Advisory Board

(1) Each provision of the Education Services for Overseas Students Act 2000 specified in column 1 of an item in the following table applies in relation to the *HELP Tuition Protection Fund Advisory Board in accordance with columns 2 and 3 of the item.

(2) This subsection covers the following provisions of the Education Services for Overseas Students Act 2000:

(a) section 55E;

(b) section 55H;

(c) section 55J;

(d) section 56A;

(e) section 56B;

(f) section 56C;

(g) section 56D;

(h) section 56E;

(i) section 56F;

(j) section 56G.

(3) A member of the *HELP Tuition Protection Fund Advisory Board is not personally subject to any liability to any person (other than the Commonwealth) in respect of anything done, or omitted to be done, in good faith in the exercise or performance of powers or functions under this Act or the Higher Education Support (HELP Tuition Protection Levy) Act 2019.