Education Legislation Amendment (Up-front Payments Tuition Protection) Act 2020 (101 of 2020)

Schedule 2 Amendment of the Higher Education Support Act 2003

Part 3 Other amendments

Higher Education Support Act 2003

90 Section 166-25

Repeal the section, substitute:

166-25 Obligation on providers in case of default

Application of section

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

Provider obligations

(2) The provider must discharge its obligations to the student in accordance with this section, within the period (the provider obligation period ) of 14 days after the day the provider *defaulted in relation to the student.

(3) The provider discharges its obligations to the student if:

(a) the provider arranges for the student to be offered a place in a suitable *replacement unit or suitable *replacement course and the student accepts the offer in writing; or

(b) the provider:

(i) re-credits the student's *HELP balance in accordance with subsection 97-42(1) or 104-42(1) (as the case requires); and

(ii) pays an amount to the Commonwealth in accordance with subsection 36-24A(2) or 110-5(1) (as the case requires).

Suitable replacement units or suitable replacement courses

(4) The provider must identify whether:

(a) there are one or more suitable *replacement units or suitable *replacement courses for the student; or

(b) there is no suitable replacement unit or suitable replacement course for the student.

Matters relating to whether a course is a suitable replacement course

(5) In identifying whether there is a suitable *replacement course, the provider 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 credits the student may receive for the units of study of the original course successfully completed by the student;

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

(e) whether the student:

(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.

Matters relating to whether a unit is a suitable replacement unit

(6) In identifying whether there is a suitable *replacement unit, the provider must have regard to the following matters:

(a) whether the student will receive credit under the student's *original course for the replacement unit;

(b) whether the mode of delivery of the replacement unit is the same as the mode of delivery of the *affected unit;

(d) whether the student:

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

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

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

Suitable replacement unit or suitable replacement course available

(7) If paragraph (4)(a) applies, the provider 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 unit or suitable *replacement course;

(ii) enrol in another unit of study or 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 unit or suitable replacement course, including the qualification that the suitable replacement course leads to;

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

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

(f) an explanation of the matters the provider must have regard to under subsections (5) and (6);

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

Elections for up-front payments must be consistent

(8) Despite paragraph (7)(a), if an *up-front payment was made for any *affected units of the *original course, any elections made under that paragraph in relation to those units must be consistent with any elections made under paragraph 62F(7)(a) of the *TEQSA Act in relation to those units.

Example: A student who is entitled to FEE-HELP assistance or HECS-HELP assistance for an affected unit of an original course also makes an up-front payment for the same affected unit. The student elects, under subparagraph (7)(a)(i), to enrol in a suitable replacement course. The student must elect to enrol in a suitable replacement course under subparagraph 62F(7)(a)(i) of the TEQSA Act in relation to the affected unit.

(9) The Higher Education Provider Guidelines may prescribe circumstances in which elections are considered to be consistent or inconsistent for the purposes of subsection (8).

166-26 Failure to discharge obligations

Civil penalty

(1) A higher education provider is liable to a civil penalty if:

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

(b) the provider fails to discharge its obligations to the student in accordance with section 166-25.

Civil penalty: 60 penalty units.

Offence

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

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

(b) the provider fails to discharge its obligations to the student in accordance with section 166-25.

Penalty: 60 penalty units.

(3) The maximum penalty for each day that an offence under subsection (2) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

Note: Subsection (2) is a continuing offence under section 4K of the Crimes Act 1914.

166-26A Providers to notify of outcome of discharge of obligations

(1) A higher education provider that *defaults in relation to a student must give a notice to the *Higher Education Tuition Protection Director within 7 days after the end of the *provider obligation period.

(2) The notice must include the following:

(a) whether the provider discharged its obligations to the student in accordance with section 166-25;

(b) if the provider arranged a suitable *replacement unit or a suitable *replacement course:

(i) details of the student; and

(ii) details of the replacement unit or the replacement course; and

(iii) evidence of the student's acceptance of an offer of a place in the replacement unit or replacement course;

(c) if the provider re-credited the student's *HELP balance and paid an amount to the Commonwealth as referred to in paragraph 166-25(3)(b):

(i) details of the student; and

(ii) details of the amount re-credited and the amount paid.

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

Penalty: 60 penalty units.

166-26B Student placement service

Application of section

(1) This section applies if the *Higher Education Tuition Protection Director determines that:

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

(b) either:

(i) the provider has failed to discharge its obligations under section 166-25 to the student by the end of the *provider obligation period; or

(ii) the provider is unlikely to be able to discharge its obligations under section 166-25 to the student by the end of the provider obligation period.

Higher Education Tuition Protection Director must decide

(2) The *Higher Education 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

(3) In deciding whether the *Higher Education 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 credits the student may receive for the units of study of the original course successfully completed by the student;

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

(e) whether the student:

(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

(4) If paragraph (2)(a) applies, the *Higher Education 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 suitable replacement course leads to;

(d) an explanation that, if *tuition fees or the student's *student contribution amount have been paid for the affected unit of the original course, tuition fees or the student contribution amount 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 (3);

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

Accepting an offer of a suitable replacement course

(5) If the *Higher Education Tuition Protection Director arranges for the student to be offered a place in a *replacement course, the student may accept the offer.

(6) An acceptance must:

(a) be in writing; and

(b) be given to the provider of the suitable replacement course within the period specified in subsection (7).

(7) For the purposes of subsection (6), the period is:

(a) the period of 30 days after the day the *Higher Education Tuition Protection Director gives notice under subsection (4); or

(b) if the Director determines that exceptional circumstances apply:

(i) any shorter period determined in writing by the Director; or

(ii) any longer period (not exceeding 12 months) determined in writing by the Director, and agreed to by the student.

No suitable replacement course available

(8) If paragraph (2)(b) applies, the *Higher Education 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 (3);

(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.

Elections for up-front payments must be consistent

(9) Despite paragraph (4)(a), if an *up-front payment was made for any *affected units of the *original course, any elections made under that paragraph in relation to those units must be consistent with any elections made under paragraph 62J(4)(a) of the *TEQSA Act in relation to those units.

Example: A student who is entitled to FEE-HELP assistance or HECS-HELP assistance for an affected unit of an original course also makes an up-front payment for the same affected unit. The student elects, under subparagraph (4)(a)(iii), to have an amount re-credited to the student's HELP balance. The student must elect to receive a refund of the up-front payment under subparagraph 62J(4)(a)(iii) of the TEQSA Act in relation to the affected unit.

(10) The Higher Education Provider Guidelines may prescribe circumstances in which elections are considered to be consistent or inconsistent for the purposes of subsection (9).

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