Higher Education Support Act 2003

An Act relating to the funding of higher education, and for other purposes

This Act may be cited as the Higher Education Support Act 2003.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1‑1 and 1‑5 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	19 December 2003
2. Sections 1‑10 to 238‑15	The later of: (a) 1 January 2004; and (b) the day after the day on which this Act receives the Royal Assent.	1 January 2004
3. Schedule 1	The later of: (a) 1 January 2004; and (b) the day after the day on which this Act receives the Royal Assent.	1 January 2004

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

1‑10 Identifying defined terms

(1) Many of the terms in this Act are defined in the Dictionary in Schedule 1.

(2) Most of the terms that are defined in the Dictionary in Schedule 1 are identified by an asterisk appearing at the start of the term: as in “*accredited course”. The footnote with the asterisk contains a signpost to the Dictionary.

(3) An asterisk usually identifies the first occurrence of a term in a section (if not divided into subsections), subsection or definition. Later occurrences of the term in the same provision are not usually asterisked.

(4) Terms are not asterisked in headings, notes, examples, explanatory tables, guides, outline provisions or diagrams.

(5) If a term is not identified by an asterisk, disregard that fact in deciding whether or not to apply to that term a definition or other interpretation provision.

(6) The following basic terms used throughout the Act are not identified with an asterisk:

Terms that are not identified
Item	This term:	is defined in:
1	enrol	Schedule 1
2	higher education provider	section 16‑1
3	student	Schedule 1
4	unit of study	Schedule 1

Division 2—Objects

2‑1 Objects of this Act

The objects of this Act are:

(a) to support a higher education system that:

(i) is characterised by quality, diversity and equity of access; and

(ii) contributes to the development of cultural and intellectual life in Australia; and

(iii) is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; and

(iv) promotes and protects free intellectual inquiry in learning, teaching and research; and

(b) to support the distinctive purposes of universities, which are:

(i) the education of persons, enabling them to take a leadership role in the intellectual, cultural, economic and social development of their communities; and

(ii) the creation and advancement of knowledge; and

(iii) the application of knowledge and discoveries to the betterment of communities in Australia and internationally;

recognising that universities are established under laws of the Commonwealth, the States and the Territories that empower them to achieve their objectives as autonomous institutions through governing bodies that are responsible for both the university’s overall performance and its ongoing independence; and

(c) to strengthen Australia’s knowledge base, and enhance the contribution of Australia’s research capabilities to national economic development, international competitiveness and the attainment of social goals; and

(d) to support students undertaking higher education and certain vocational education and training.

Division 3—Overview of this Act

3‑1 General

This Act primarily provides for the Commonwealth to give financial support for higher education and certain vocational education and training:

(a) through grants and other payments made largely to higher education providers; and

(b) through financial assistance to students (usually in the form of loans).

3‑5 Grants for higher education assistance etc. (Chapter 2)

(1) Chapter 2 sets out who are higher education providers, and provides for the following grants and payments:

(a) grants under the Commonwealth Grant Scheme;

(aa) grants for assisting Indigenous students;

(b) other grants for particular purposes;

(2) Higher education providers will be universities, self‑accrediting entities or non self‑accrediting entities.

(3) Chapter 2 also provides for the direct payment to students of certain Commonwealth scholarships.

3‑10 Assistance to students (Chapter 3)

Chapter 3 provides for the following assistance to students:

(a) HECS‑HELP assistance for student contribution amounts;

(b) FEE‑HELP assistance for tuition fees;

(d) SA‑HELP assistance for meeting student services and amenities fees imposed by higher education providers.

3‑15 Repayment of loans (Chapter 4)

Chapter 4 sets out how debts are incurred and worked out in relation to loans made under Chapter 3, and provides for their repayment.

3‑20 Administration (Chapter 5)

Chapter 5 provides for several administrative matters relating to the operation of this Act.

3‑30 VET FEE‑HELP Assistance Scheme (Schedule 1A)

Schedule 1A provides for financial assistance to students undertaking certain accredited vocational education and training (VET) courses.

Division 5—Application of Act to Table C providers

5‑1 Application of Act to Table C providers

General application to Table C providers

(1) The provisions of this Act not listed in the table in subsection (2) or in subsection (4) apply to a *Table C provider, the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.

Modified application to Table C providers

(2) The provisions of this Act listed in the table apply to a *Table C provider in the way set out in the table.

Application of Act to Table C providers
Item	Provision	Application
1	Subdivision 19‑C (quality requirements)	Applies to the Australian branch of the provider. However, TEQSA may need to assess the overall performance of the provider as it relates to that branch.
2	Subdivision 19‑D (fairness requirements)	Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
3	Subdivision 19‑F (contribution and fee requirements)	Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
4	Part 3‑3 (FEE‑HELP assistance)	Applies to eligible students of the *Australian branch of the provider, but only for units of study in which the students are enrolled at the Australian branch.
5	Part 3‑4 (OS‑HELP assistance)	Applies to eligible students of the *Australian branch of the provider.
5A	Part 3‑5 (SA‑HELP assistance)	Applies to eligible students of the Australian branch of the provider who are enrolled at the Australian branch in a course of study or *bridging course for overseas‑trained professionals.
6	Chapter 4 (Repayment of loans)	Applies to the *Australian branch of the provider and to students undertaking, or students who undertook, units of study at that branch.
7	Part 5‑2 (Administrative requirements on higher education providers)	Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
8	Part 5‑3 (Electronic communications)	Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
9	Part 5‑4 (Management of information)	Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
10	Part 5‑5 (Tax file numbers)	Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
11	Part 5‑7 (Review of decisions)	Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.

Provisions that do not apply to Table C providers

(3) The provisions of this Act listed in subsection (4) do not apply to:

(a) a *Table C provider; or

(b) the *Australian branch of the provider; or

(4) The provisions are as follows:

(a) Part 2‑2 (Commonwealth Grant Scheme);

(aa) Part 2‑2A (Indigenous student assistance grants);

(b) Part 2‑3 (Other grants);

(d) Part 2‑5 (Reduction and repayment of grants);

(e) Part 3‑2 (HECS‑HELP assistance);

(f) Schedule 1A (VET FEE‑HELP Assistance Scheme).

Division 6—Schedule 1A

6‑1 Schedule 1A

Schedule 1A has effect.

Chapter 2—Grants for higher education assistance etc.

Division 8—Introduction

8‑1 What this Chapter is about

This Chapter provides for who are higher education providers, and for 4 kinds of grants to be made.

Part 2‑1 sets out who are higher education providers (universities, self‑accrediting entities and non self‑accrediting entities), the quality and accountability requirements for higher education providers and how bodies cease to be higher education providers.

Note: Except in very limited cases, only higher education providers can get grants under this Chapter.

The 4 kinds of grants available under this Chapter are:

• grants under Part 2‑2 (Commonwealth Grant Scheme) to certain higher education providers. These grants are paid in relation to Commonwealth supported places. Grants are made subject to conditions; and

• grants under Part 2‑2A to Table A providers and Table B providers to assist Indigenous students; and

• other grants under Part 2‑3 to higher education providers and other bodies corporate for a variety of purposes; and

• grants for Commonwealth scholarships to certain higher education providers under Part 2‑4.

The amount of a grant may be reduced, or an amount paid may be required to be repaid, if the recipient breaches a quality and accountability requirement or a condition of the grant (see Part 2‑5).

Note: A body’s approval as a higher education provider may be suspended or revoked for such a breach.

This Chapter also provides for the direct payment to students of certain Commonwealth scholarships under Part 2‑4.

Part 2‑1—Higher education providers

Division 13—Introduction

13‑1 What this Part is about

A body generally has to be approved as a higher education provider before it can receive grants, or its students can receive assistance, under this Act. Listed providers (universities and certain self‑accrediting entities) have that approval upon commencement of this Act. Table C providers have that approval from the time they are included in Table C. Bodies that do not have that automatic approval, or whose approval has been revoked, have to apply for approval.

Higher education providers are subject to the quality and accountability requirements.

A body’s approval as a higher education provider may be revoked in circumstances such as breach of a quality and accountability requirement.

13‑5 The Higher Education Provider Guidelines

Higher education providers and the *quality and accountability requirements are also dealt with in the Higher Education Provider Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The Higher Education Provider Guidelines are made by the Minister under section 238‑10.

Division 16—What is a higher education provider?

Subdivision 16‑A—General

16‑1 Meaning of higher education provider

(1) A higher education provider is a body corporate that is approved under this Division.

(2) Despite subsection (1), a body other than a body corporate may be approved under this Division as a higher education provider if the body is covered by an exemption under subsection (3).

(3) The Minister may, in writing, exempt a body for the purposes of this section if the body is established by or under a law of the Commonwealth, a State or a Territory.

(4) If the Minister exempts a body under subsection (3), references in this Act, other than in this section, to a body corporate are taken to include the body.

(5) An exemption given under this section is not a legislative instrument.

16‑5 When a body becomes or ceases to be a higher education provider

(1) A *listed provider is taken to be approved as a higher education provider from the commencement of this Act.

(1A) A *Table C provider is taken to be approved as a higher education provider from the commencement of the provision that included the provider in Table C in section 16‑22.

(2) A body corporate:

(a) that is not a *listed provider or a *Table C provider; or

(b) that is a listed provider or a Table C provider that has previously ceased to be a higher education provider;

becomes a provider if approved by the Minister under section 16‑25.

(3) A higher education provider ceases to be a provider if the provider’s approval is revoked or suspended under Division 22 or the notice of the provider’s approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.

Subdivision 16‑B—Which bodies are listed providers?

16‑10 Listed providers

The following are listed providers:

(a) a *Table A provider;

(b) a *Table B provider.

16‑15 Table A providers

(1) The following are Table A providers:

Table A providers
Providers
Central Queensland University
Charles Darwin University
Charles Sturt University
Curtin University of Technology
Deakin University
Edith Cowan University
Federation University Australia
Griffith University
James Cook University
La Trobe University
Macquarie University
Monash University
Murdoch University
Queensland University of Technology
Royal Melbourne Institute of Technology
Southern Cross University
Swinburne University of Technology
The Australian National University
The Flinders University of South Australia
The University of Adelaide
The University of Melbourne
The University of Queensland
The University of Sydney
The University of Western Australia
University of Canberra
University of Newcastle
University of New England
University of New South Wales
University of South Australia
University of Southern Queensland
University of Tasmania
University of Technology, Sydney
University of the Sunshine Coast
University of Western Sydney
University of Wollongong
Victoria University
Australian Catholic University
Batchelor Institute of Indigenous Tertiary Education

(2) However, a body is not a Table A provider if its approval as a higher education provider is revoked or suspended.

16‑20 Table B providers

(1) The following are Table B providers:

Table B providers
Providers
Bond University
The University of Notre Dame Australia
MCD University of Divinity
Torrens University Australia

(2) However, a body is not a Table B provider if its approval as a higher education provider is revoked or suspended.

16‑22 Table C providers

(1) The following are Table C providers:

Table C providers
Providers
Carnegie Mellon University, a non‑profit organisation established under Pennsylvania law
University College London, a non‑profit organisation established under United Kingdom law

(2) However, a body is not a Table C provider if its approval as a higher education provider is revoked or suspended.

Note: A Table C provider is not entitled to receive a grant under this Chapter: see section 5‑1.

Subdivision 16‑C—How are bodies approved as higher education providers?

16‑25 Approval by the Minister

(1) The Minister, in writing, may approve a body corporate as a higher education provider if:

(a) the body:

(i) is established under the law of the Commonwealth, a State or a Territory; and

(ii) carries on business in Australia; and

(iii) has its central management and control in Australia; and

(aa) subject to subsection (2), the body’s principal purpose is, or is taken to be, either or both of the following:

(i) to provide education;

(ii) to conduct research; and

(b) the body is:

(i) an *Australian university; or

(ii) a *self‑accrediting entity; or

(iii) a *non self‑accrediting entity; and

(c) the body either fulfils the *tuition assurance requirements or is exempted from those requirements under section 16‑31; and

(da) the body offers at least one *course of study that leads to a *higher education award; and

(db) the course of study is an *accredited course in relation to the body; and

(e) the body applies for approval as provided for in section 16‑40; and

(f) the Minister is satisfied that the body is willing and able to meet the *quality and accountability requirements; and

(fa) the body complies with any requirements set out in the Higher Education Provider Guidelines; and

(fb) the Minister is satisfied that the body has sufficient experience in the provision of higher education; and

(g) the Minister is satisfied that:

(i) the body; and

(ii) each person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body’s affairs;

is a fit and proper person.

(2) For the purpose of paragraph (1)(aa), the Minister may determine that a body’s principal purpose is taken to be either or both of the following:

(a) to provide education;

(b) to conduct research;

if the Minister is satisfied that any of the body’s purposes do not conflict with the body’s purpose of providing education and/or conducting research.

(2A) For the purposes of paragraph (1)(fb), the Minister may have regard to the following:

(a) whether the body has been a *registered higher education provider for 3 or more years;

(b) the history of the body, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the body’s affairs, in delivering higher education;

(c) the scope of courses and level of qualifications the body, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the body’s affairs, has experience in providing.

(3) The Minister must, in deciding whether he or she is satisfied that a person is a fit and proper person, take into account the matters specified in an instrument under subsection (4). The Minister may take into account any other matters he or she considers relevant.

(4) The Minister must, by legislative instrument, specify matters for the purposes of subsection (3).

16‑27 Body must be a registered higher education provider

Despite section 16‑25, the Minister must not approve a body corporate as a higher education provider unless the body is a *registered higher education provider.

16‑30 The tuition assurance requirements

The tuition assurance requirements are that the body corporate complies with the requirements for tuition assurance set out in the Higher Education Provider Guidelines.

16‑31 Tuition assurance requirements exemption for approvals

(1) The Minister may, in writing, exempt a body corporate from the *tuition assurance requirements for the purposes of approving the body under section 16‑25.

Note: This section only deals with exemptions from the tuition assurance requirements when approving bodies as higher education providers. For exemptions from the tuition assurance requirements after approval has happened, see subsection 19‑40(2).

(2) An exemption is subject to such conditions as are specified in the exemption.

Note: A body will not be exempt if a condition of the exemption is not complied with.

(3) An exemption given under this section is not a legislative instrument.

16‑40 Application

(1) A body corporate that is a *registered higher education provider may apply, in writing, to the Minister for approval as a higher education provider under this Act.

(1A) However, if:

(a) the body corporate made an application (the earlier application) under subsection (1); and

(b) the Minister decided not to approve the earlier application;

the body corporate cannot make another application under that subsection within 6 months after the day on which notice of the decision on the earlier application was given to the body corporate.

(2) The application:

(a) must be in the form approved by the Minister; and

(b) must be accompanied by such information as the Minister requests.

16‑45 Minister may seek further information

(1) For the purposes of determining an application, the Minister may, by notice in writing, require an applicant to provide such further information as the Minister directs within the period specified in the notice.

(2) If an applicant does not comply with a requirement under subsection (1), the application is taken to have been withdrawn.

(3) A notice under this section must include a statement about the effect of subsection (2).

16‑50 Minister to decide application

(1) The Minister must:

(a) decide an application for approval as a higher education provider; and

(b) cause the applicant to be notified in writing whether or not the applicant is approved as a higher education provider.

(2) For the purposes of paragraph 16‑25(1)(f), the Minister may be satisfied that a body corporate is willing and able to meet the *quality and accountability requirements if the body gives the Minister such written undertakings as the Minister requires.

(3) The Minister’s decision must be made:

(a) within 90 days after receiving the application; or

(b) if further information is requested under section 16‑45—within 60 days after the end of the period within which the information was required to be provided under that section;

whichever is the later.

(3A) However, contravention of subsection (3) does not affect the Minister’s power to decide the application or the Minister’s obligation to comply with subsection (1).

(4) If the Minister decides that an applicant is approved as a higher education provider, the notice must also contain such information as is specified in the Higher Education Provider Guidelines as information that must be provided to an applicant upon approval as a higher education provider.

16‑55 Approvals are legislative instruments

(1) A notice of approval under paragraph 16‑50(1)(b) is a legislative instrument.

(2) A decision of the Minister to approve a body corporate as a higher education provider takes effect when the notice of approval commences under the Legislation Act 2003.

Note: Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.

16‑60 Conditions of approval

(1) The Minister may impose conditions on a body corporate’s approval as a higher education provider. Such conditions need not be imposed at the time notice of approval is given to the provider.

(2) The Minister may vary a condition imposed under subsection (1).

(3) The conditions may include the following:

(a) that a specified limit on the total number of students entitled to *FEE‑HELP assistance applies to the provider for a specified period;

(b) that a specified limit on the total amount of FEE‑HELP assistance payable to the provider applies to the provider for a specified period;

(c) that FEE‑HELP assistance is payable only in relation to specified units of study offered by the higher education provider;

(d) that FEE‑HELP assistance is not payable in relation to specified units of study offered by the higher education provider;

(e) that units of study provided in a specified manner or by a specified mode of delivery by the higher education provider are units in relation to which FEE‑HELP assistance is unavailable.

(4) Subsection (3) does not limit the conditions the Minister may impose on the approval.

16‑65 Minister to cause higher education provider to be notified of change in condition of approval

The Minister must, within 30 days of his or her decision to impose or vary a condition on a higher education provider, cause the provider to be notified, in writing, of:

(a) the decision; and

(b) the reasons for the decision; and

16‑70 Variation of approval if body’s name changes

(1) If a body corporate is approved as a higher education provider under section 16‑25 and the body’s name changes, the Minister may vary the approval to include the new name.

(2) The Minister must notify the body in writing of the variation.

(3) A notice of variation under subsection (2) is a legislative instrument.

(4) The variation takes effect when the notice of variation commences under the Legislation Act 2003.

Note: Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.

Division 19—What are the quality and accountability requirements?

Subdivision 19‑A—General

19‑1 The quality and accountability requirements

The quality and accountability requirements are:

(a) the *financial viability requirements (see Subdivision 19‑B); and

(b) the *quality requirements (see Subdivision 19‑C); and

(d) the *compliance requirements (see Subdivision 19‑E); and

(e) the *contribution and fee requirements (see Subdivision 19‑F); and

(f) the *compact and academic freedom requirements (see Subdivision 19‑G).

Subdivision 19‑B—The financial viability requirements

19‑5 Basic requirement

A higher education provider:

(a) must be financially viable; and

(b) must be likely to remain financially viable.

19‑10 Financial information must be provided

(1) A higher education provider must give to the Minister a financial statement for each *annual financial reporting period for the provider in which:

(a) the provider receives assistance under this Chapter; or

(b) a student of the provider receives assistance under Chapter 3.

(2) The statement:

(a) must be in the form approved by the Minister; and

(ab) comply with any requirements prescribed by the Higher Education Provider Guidelines; and

(b) must be provided together with a report on the statement by an independent *qualified auditor; and

(c) must be provided within 6 months after the end of the *annual financial reporting period for which the statement was given.

(2A) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, requirements made for the purposes of paragraph (2)(ab) of this section may make different provision in relation to different kinds of providers, circumstances or any other matter.

(3) An annual financial reporting period, for a higher education provider, is the period of 12 months:

(a) to which the provider’s accounts relate; and

(b) that is notified in writing to the Minister as the provider’s annual financial reporting period.

19‑12 Minister to have regard to financial information and matters prescribed in Higher Education Guidelines

In determining whether a higher education provider is financially viable, and likely to remain so, the Minister must have regard to:

(a) any financial statement provided by the provider under section 19‑10; and

(b) the matters (if any) prescribed by the Higher Education Provider Guidelines.

Subdivision 19‑C—The quality requirements

19‑15 Provider must maintain quality

A higher education provider must operate, and continue to operate, at a level of quality:

(a) that meets the Threshold Standards (within the meaning of the *TEQSA Act); and

(b) that meets the requirements imposed by or under the TEQSA Act on, or in relation to, the provider.

Subdivision 19‑D—The fairness requirements

19‑30 Basic requirement

A higher education provider must treat fairly:

(a) all of its students; and

(b) all of the persons seeking to enrol with the provider.

19‑35 Benefits and opportunities must be available equally to all students

(1) A higher education provider that receives assistance under this Chapter in respect of a student, or a class of students, must ensure that the benefits of, and the opportunities created by, the assistance are made equally available to all such students, or students in such class, in respect of whom that assistance is payable.

(2) A higher education provider that receives:

(a) any grant or allocation under this Chapter; or

(b) any payment under section 124‑1 on account of amounts of *OS‑HELP assistance;

must have open, fair and transparent procedures that, in the provider’s reasonable view, are based on merit for making decisions about the selection of students who are to benefit from the grant, allocation or payment.

(3) Subsection (2) does not prevent a higher education provider taking into account, in making such decisions about the selection of students, educational disadvantages that a particular student has experienced.

(4) A higher education provider that receives any payment under section 110‑1 on account of amounts of *FEE‑HELP assistance for a unit of study must have open, fair and transparent procedures that, in the provider’s reasonable view, are based on merit for making decisions about:

(a) the selection, from among the persons who seek to enrol with the provider in that unit of study, of persons to enrol; and

(b) the treatment of students undertaking that unit of study.

(5) Subsection (4) does not prevent a higher education provider taking into account, in making decisions mentioned in that subsection, educational disadvantages that a particular student has experienced.

19‑36 Misrepresenting assistance under Chapter 3

A higher education provider must not represent, whether by publishing or otherwise, that assistance payable under Chapter 3:

(a) is not a loan; or

(b) does not have to be repaid.

Civil penalty: 240 penalty units.

19‑36A Offering certain inducements

(1) A higher education provider must not offer or provide a benefit, or cause a benefit to be offered or provided, if the benefit would be reasonably likely to induce a person to make a *request for Commonwealth assistance in relation to enrolling in a unit of study with the provider.

Civil penalty: 120 penalty units.

(2) Subsection (1) does not apply in relation to a benefit specified in the Higher Education Provider Guidelines.

19‑36B Engaging in cold‑calling

(1) This section applies if a higher education provider cold‑calls another person to market, advertise or promote a unit of study or a *course of study.

(2) The higher education provider must not mention the possible availability of *FEE‑HELP assistance for students undertaking the unit of study or *course of study.

Civil penalty: 60 penalty units.

(3) For the purposes of this section, cold‑calling includes making unsolicited contact with a person:

(a) in person; or

(b) by telephone, email or other form of electronic communication.

(4) The Higher Education Provider Guidelines may set out conduct that is taken to be cold‑calling for the purposes of this section.

19‑36C Use of third party contact lists

(1) This section applies if a higher education provider:

(a) receives a person’s contact details from another person; and

(b) contacts the student to market, advertise or promote a unit of study or a *course of study, or enrol the student in a unit of study or course of study.

(2) The higher education provider must not mention the possible availability of *FEE‑HELP assistance for students undertaking the unit of study or *course of study.

Civil penalty: 60 penalty units.

(3) Subsection (2) does not apply in circumstances specified in the Higher Education Provider Guidelines.

19‑36D Other marketing requirements

(1) The Higher Education Provider Guidelines may set out requirements in relation to the marketing of courses in circumstances where assistance may be payable by the Commonwealth under Chapter 3.

(2) A higher education provider contravenes this subsection if the provider:

(a) is subject to a requirement under subsection (1); and

(b) fails to comply with the requirement.

Civil penalty: 60 penalty units.

19‑36E Requirements relating to requests for Commonwealth assistance

A higher education provider must not complete any part of a *request for Commonwealth assistance that a student is required to complete.

Civil penalty: 120 penalty units.

19‑37 Requiring membership of certain organisations or payment of certain amounts

(1) A higher education provider must not:

(a) require a person to be or to become a member of an organisation of students, or of students and other persons; or

(b) require a person enrolled with, or seeking to enrol with, the provider to pay to the provider or any other entity an amount in respect of an organisation of students, or of students and other persons;

unless the person has chosen to be or to become a member of the organisation.

(2) A higher education provider must not require a person enrolled with, or seeking to enrol with, the provider to pay to the provider or any other entity an amount for the provision to students of an amenity, facility or service that is not of an academic nature, unless the person has chosen to use the amenity, facility or service.

(3) Subsection (2) does not apply to an amount that the higher education provider requires the person to pay if the amount is for goods or services that:

(a) are essential for the course of study in which the person is enrolled or seeking to enrol; and

(b) the person has the choice of acquiring from, but does not acquire from, a supplier other than the higher education provider; and

(i) are goods that become the property of the person that are not intended to be consumed during the course of study; or

(ii) consist of food, transport or accommodation associated with provision of field trips in connection with the course of study.

(4) Subsection (2) does not apply to a *student services and amenities fee that the higher education provider requires the person to pay.

(5) A student services and amenities fee is an amount:

(a) that a higher education provider requires a person enrolled, or seeking to enrol, with the provider to pay for a period starting on or after 1 January 2012 to support the provision to students of amenities and services not of an academic nature, regardless of whether the person chooses to use any of those amenities and services; and

(b) that is determined by the provider in accordance with the Administration Guidelines; and

(d) that is payable on a day determined in accordance with those guidelines; and

(e) that is such that the total of all amounts that are covered by paragraphs (a), (b), (c) and (d) for the same provider and person is not more than $263, for amounts for periods falling wholly or partly within a calendar year starting on or after 1 January 2012.

Note 1: The Administration Guidelines are made by the Minister under section 238‑10.

Note 2: The amount of $263 mentioned in paragraph (5)(e) is indexed under Part 5‑6.

Note 3: Paragraph 19‑102(3)(b) prevents a student services and amenities fee from being a fee as defined in section 19‑102.

(6) If a higher education provider determines a *student services and amenities fee, the provider:

(a) must publish, in accordance with the Administration Guidelines:

(i) enough information to enable a person liable to pay the fee to work out the amount of the fee; and

(ii) notice of the day on which the fee is payable; and

(b) must, on request by a person who is or may become liable to pay the fee, inform the person of the amount of the fee and the day on which it is or would be payable.

19‑38 Higher education providers’ expenditure of student services and amenities fees

(1) A higher education provider must not spend an amount paid to the provider as a *student services and amenities fee to support:

(a) a political party; or

(b) the election of a person as a member of:

(i) the legislature of the Commonwealth, a State or a Territory; or

(ii) a local government body.

(2) If a higher education provider pays a person or organisation an amount paid to the provider as a *student services and amenities fee, the provider must make the payment on the condition that none of the payment is to be spent by the person or organisation to support:

(a) a political party; or

(b) the election of a person as a member of:

(i) the legislature of the Commonwealth, a State or a Territory; or

(ii) a local government body.

(3) A higher education provider must not spend, for a purpose other than that specified in subsection (4), an amount paid to the provider as a *student services and amenities fee.

(4) Subsection (3) does not prohibit expenditure for a purpose that relates to the provision of any of the following services:

(a) providing food or drink to students on a campus of the higher education provider;

(b) supporting a sporting or other recreational activity by students;

(d) caring for children of students;

(e) providing legal services to students;

(f) promoting the health or welfare of students;

(g) helping students secure accommodation;

(h) helping students obtain employment or advice on careers;

(i) helping students with their financial affairs;

(j) helping students obtain insurance against personal accidents;

(k) supporting debating by students;

(l) providing libraries and reading rooms (other than those provided for academic purposes) for students;

(m) supporting an artistic activity by students;

(n) supporting the production and dissemination to students of media whose content is provided by students;

(o) helping students develop skills for study, by means other than undertaking *courses of study in which they are enrolled;

(p) advising on matters arising under the higher education provider’s rules (however described);

(q) advocating students’ interests in matters arising under the higher education provider’s rules (however described);

(r) giving students information to help them in their orientation;

(s) helping meet the specific needs of *overseas students relating to their welfare, accommodation and employment.

Note: Examples of expenditure for a purpose that relates to the provision of a service specified in subsection (4) include:

(a) expenditure by the higher education provider in directly providing the service; and

(b) expenditure by the higher education provider in getting someone else to provide the service or subsidising the provision of the service by someone else; and

(5) Without limiting who is a child of a person for the purposes of paragraph (4)(d), someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(6) To avoid doubt, subsections (1), (2) and (3) apply to an advance made to a higher education provider on account of *SA‑HELP assistance in the same way as they apply to an amount paid to the provider as a *student services and amenities fee.

Note: An amount of SA‑HELP assistance paid to a provider is an amount paid to the provider as a student services and amenities fee because, under section 128‑1, the SA‑HELP assistance is paid to discharge the student’s liability to pay the fee.

(7) Subsection (6) does not limit subsection 164‑10(2).

Note: Subsection 164‑10(2) applies to an advance on account of an amount the conditions that would apply to payment of the amount.

19‑40 Compliance with the tuition assurance requirements

(1) A higher education provider, other than a *Table A provider or a body declared under subsection (2), must comply with the *tuition assurance requirements.

Civil penalty: 60 penalty units.

(2) The Minister may, by declaration in writing, exempt a specified higher education provider from the requirement in subsection (1).

(3) An exemption:

(a) is subject to such conditions as are specified in the exemption; and

(b) may be expressed to be in force for a period specified in the exemption.

Note: A body will not be exempt if a condition of the exemption is not complied with.

(4) An exemption given under this section is not a legislative instrument.

19‑42 Assessment of students as academically suited

(1) Before enrolling a student in a unit of study, a higher education provider must assess the student as academically suited to undertake the unit concerned.

Civil penalty: 120 penalty units.

(2) The assessment for the purposes of subsection (1) must be done in accordance with any requirements specified in the Higher Education Provider Guidelines.

19‑45 Student grievance and review procedures

Must have grievance and review procedures

(1) A higher education provider must have:

(a) a grievance procedure for dealing with complaints by the provider’s students, and persons who seek to enrol in *courses of study with the provider, relating to non‑academic matters; and

(b) a grievance procedure for dealing with complaints by the provider’s students relating to academic matters; and

(i) under section 36‑20; or

(ii) relating to assistance under Chapter 3.

Note: Part 5‑7 also deals with reconsideration and review of decisions.

(2) Except where the provider is a *Table A provider, the grievance procedures referred to in paragraphs (1)(a) and (b) must comply with the requirements of the Higher Education Provider Guidelines.

(3) The review procedure referred to in paragraph (1)(c) must comply with the requirements of the Higher Education Provider Guidelines.

Guidelines may provide for matters relating to reviews

(4) The Higher Education Provider Guidelines may provide for matters relating to reviews of decisions made by higher education providers:

(a) under section 36‑20; or

(b) relating to assistance under Chapter 3;

including procedures that are to be followed by *review officers when reviewing those decisions.

Provider to comply with procedures

(5) The provider must comply with its grievance and review procedures.

Civil penalty: 60 penalty units.

Provider to provide information about procedures

(6) The provider must publish, and make publicly available, up to date information setting out the procedures.

Provider to provide information about other complaint mechanisms

(7) The provider must publish information about any other complaint mechanisms available to complain about the provider’s decisions.

19‑50 Higher education providers to appoint review officers

(1) A higher education provider must appoint a *review officer to undertake reviews of decisions made by the provider:

(a) under section 36‑20; or

(b) relating to assistance under Chapter 3.

Note: The Secretary may delegate to a review officer of a higher education provider the power to reconsider decisions of the provider under Division 209: see subsection 238‑1(2).

(2) A review officer of a higher education provider is a person, or a person included in a class of persons, whom:

(a) the chief executive officer of the provider; or

(b) a delegate of the chief executive officer of the provider;

has appointed to be a review officer of the provider for the purposes of reviewing decisions made by the provider:

(d) relating to assistance under Chapter 3.

19‑55 Review officers not to review own decisions

A higher education provider must ensure that a *review officer of the provider:

(a) does not review a decision that the review officer was involved in making; and

(b) in reviewing a decision of the provider, occupies a position that is senior to that occupied by any person involved in making the original decision.

19‑60 Procedures relating to personal information

(1) A higher education provider must comply with the Australian Privacy Principles in respect of *personal information obtained for the purposes of section 36‑20 or Chapter 3 or 4.

(2) A higher education provider must have a procedure under which a student enrolled with the provider may apply to the provider for, and receive, a copy of *personal information that the provider holds in relation to that student.

(3) The provider must comply with:

(a) the requirements of the Higher Education Provider Guidelines relating to *personal information in relation to students; and

(b) the procedure referred to in subsection (2).

Subdivision 19‑E—The compliance requirements

19‑65 Basic requirements

(1) A higher education provider must comply with:

(a) this Act and the regulations; and

(b) the Guidelines made under section 238‑10 that apply to the provider; and

(2) A higher education provider must provide information to the Minister in relation to the affairs of the provider in accordance with the requirements of this Act.

(3) A higher education provider’s administrative arrangements must support the provision of assistance under this Act.

19‑67 Special requirements for student services, amenities, representation and advocacy in 2012 and later years

(1) A higher education provider that receives a grant under Part 2‑2 in respect of the year 2012 or a later year must comply in respect of the year with the requirements of the Student Services, Amenities, Representation and Advocacy Guidelines as those guidelines were in force on the 30 June just before the year.

Note: The Student Services, Amenities, Representation and Advocacy Guidelines are made by the Minister under section 238‑10.

(2) The Student Services, Amenities, Representation and Advocacy Guidelines may provide for:

(a) requirements for providing students with information about services that are not of an academic nature and that support students; and

(b) requirements for providing students with access to such services; and

(3) However, the Student Services, Amenities, Representation and Advocacy Guidelines cannot require a provider to fund an organisation of students, or of students and other persons.

(4) Subsection 19‑65(1) does not apply in relation to the Student Services, Amenities, Representation and Advocacy Guidelines.

19‑70 Provider to provide statement of general information

(1) A higher education provider must give to the Minister such statistical and other information that the Minister by notice in writing requires from the provider in respect of:

(a) the provision of higher education by the provider; and

(b) compliance by the provider with the requirements of this Act.

(2) The information must be provided:

(a) in a form (if any) approved by the Minister for the information; and

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

(3) A notice under this section must not require the giving of information that a higher education provider is required to give to the Minister under section 19‑95.

(4) A higher education provider contravenes this subsection if the provider:

(a) is subject to a requirement under this section; and

(b) does not comply with the requirement.

Civil penalty: 60 penalty units.

19‑71 Co‑operation with HESA and TEQSA investigators

(1) A higher education provider must co‑operate with *HESA investigators and *TEQSA investigators who are performing functions or exercising powers under this Act.

(2) A higher education provider must not obstruct or hinder a *HESA investigator or a *TEQSA investigator who is performing functions or exercising powers under this Act.

Civil penalty: 60 penalty units.

19‑72 Providers must keep records

(1) A higher education provider must keep records of a kind, in the manner and for the period specified in the Higher Education Provider Guidelines.

(2) A higher education provider contravenes this subsection if the provider:

(a) is subject to a requirement under this section; and

(b) does not comply with the requirement.

Civil penalty: 60 penalty units.

19‑73 Providers must publish information

(1) A higher education provider must publish information of the kind, in the manner and within the period specified in the Higher Education Provider Guidelines.

(2) A higher education provider contravenes this subsection if the provider:

(a) is subject to a requirement under this section; and

(b) does not comply with the requirement.

Civil penalty: 60 penalty units.

19‑75 Notice of events that affect provider’s ability to comply with conditions of Commonwealth assistance

A higher education provider must by writing inform the Minister of any event affecting:

(a) the provider; or

(b) a *related body corporate of the provider;

that may significantly affect the provider’s capacity to meet the conditions of grants under this Chapter or the *quality and accountability requirements.

Civil penalty: 60 penalty units.

19‑77 Notice of events affecting accreditation

A higher education provider must by writing inform the Minister of any event affecting:

(a) the provider; or

(b) a *related body corporate of the provider;

that relates to:

(d) TEQSA’s accreditation of a course of study that is an *accredited course in relation to the provider.

Civil penalty: 60 penalty units.

19‑78 Notice of events significantly affecting TEQSA registration

(1) A higher education provider must by writing inform the Minister of any event significantly affecting:

(a) the provider; or

(b) a *related body corporate of the provider;

that relates to the provider’s registration as a *registered higher education provider.

Civil penalty: 60 penalty units.

(2) If a higher education provider informs the Minister of an event under section 19‑77, the provider need not inform the Minister of the event under this section.

19‑80 Compliance assurance—provider (other than Table A provider)

(1) The Minister may require a higher education provider (other than a *Table A provider) to be audited as to compliance with any one or more of the following requirements:

(a) the *financial viability requirements;

(b) the *fairness requirements;

(d) the *contribution and fee requirements.

(2) The audit must be conducted:

(a) by a body determined in writing by the Minister; and

(b) at such time or times, and in such manner, as the Minister requires.

(2A) To avoid doubt, if the Minister makes a determination under subsection (2) in relation to *TEQSA, the determination is not a direction for the purposes of subsection 136(2) of the *TEQSA Act.

(3) The provider must:

(a) fully co‑operate with the auditing body in the course of its audit; and

(b) pay to the auditing body any charges payable for such an audit.

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

(a) is being audited under this section; and

(b) does not co‑operate with the auditing body in the course of its audit.

Civil penalty: 60 penalty units.

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

19‑82 Compliance notices

Grounds for giving a compliance notice

(1) The Minister may give a higher education provider a written notice (a compliance notice) in accordance with this section if the Minister is satisfied that the provider has not complied with, or is aware of information that suggests that the provider may not comply with, one or more of the following:

(a) this Act or the regulations;

(b) the Guidelines made under section 238‑10 that apply to the provider;

Content of compliance notice

(2) The compliance notice must:

(a) set out the name of the provider to which the notice is given; and

(b) set out brief details of the non‑compliance or possible non‑compliance; and

(c) specify action that the provider must take, or refrain from taking, in order to address the non‑compliance or possible non‑compliance; and

(d) specify a reasonable period within which the provider must take, or refrain from taking, the specified action; and

(e) if the Minister considers it appropriate—specify a reasonable period within which the provider must provide the Minister with evidence that the provider has taken, or refrained from taking, the specified action; and

(f) in any case—state that a failure to comply with the notice is a breach of a *quality and accountability requirement which may lead to the provider’s approval as a higher education provider being suspended or revoked; and

(g) in any case—set out any other matters specified in the Higher Education Provider Guidelines for the purposes of this paragraph.

Matters that Minister must consider in giving compliance notice

(3) In deciding whether to give the compliance notice, the Minister must consider all of the following matters:

(a) whether the non‑compliance or possible non‑compliance is of a minor or major nature;

(b) the period for which the provider has been approved as a higher education provider;

(i) this Act and the regulations; and

(ii) the Guidelines made under section 238‑10 that apply to the provider; and

(iii) any conditions imposed on the provider’s approval as a higher education provider;

(d) the impact of the higher education provider’s non‑compliance or possible non‑compliance, and of the proposed compliance notice, on:

(i) the provider’s students; and

(ii) the provision of higher education generally;

(e) the public interest;

(f) any other matter specified in the Higher Education Provider Guidelines for the purposes of this paragraph.

Higher Education provider to comply with compliance notice

(4) A higher education provider must comply with a compliance notice given to the provider under this section.

Civil penalty: 60 penalty units.

Variation and revocation of compliance notice

(5) The Minister may, by written notice given to the higher education provider, vary or revoke a compliance notice if, at the time of the variation or revocation, the Minister considers that taking such action is in the public interest.

Note: A variation could, for example, specify different action to be taken by the provider or a different period for complying with the notice.

(6) In deciding whether to vary or revoke the compliance notice, the Minister must consider any submissions that are received from the higher education provider before the end of the period mentioned in paragraph (2)(d).

Compliance notice not required before suspending or revoking approval

(7) To avoid doubt, the Minister need not give a compliance notice under this section before suspending or revoking the provider’s approval as a higher education provider in accordance with Division 22.

Subdivision 19‑F—What are the contribution and fee requirements?

19‑85 Basic requirement

A higher education provider must charge, in accordance with the requirements of this Act, *student contribution amounts and *tuition fees for each unit of study in which it enrols students.

19‑87 Determining student contribution amounts for all places in units

(1) This section applies to a unit of study:

(a) that a higher education provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines; and

(b) in relation to which the provider may advise a person that he or she is a *Commonwealth supported student.

(2) The provider must determine, for places in the unit, one or more *student contribution amounts that are to apply to students who may enrol in the unit during the period.

(2A) In determining more than one *student contribution amount under subsection (2), the provider may have regard to any matters the provider considers appropriate, other than matters specified in the Higher Education Provider Guidelines as matters to which a provider must not have regard.

(3) The provider must not vary a *student contribution amount unless the provider:

(a) does so:

(i) before the date ascertained in accordance with the Higher Education Provider Guidelines; and

(ii) in circumstances specified in the Higher Education Provider Guidelines; or

(b) does so with the written approval of the Minister.

19‑90 Determining tuition fees for all students

(1) This section applies to a unit of study that a higher education provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines.

(2) The provider must determine, for the unit, one or more *fees that are to apply to students who may enrol in the unit during the period.

(3) In determining more than one *fee under subsection (2), the provider may have regard to any matters the provider considers appropriate, other than matters specified in the Higher Education Provider Guidelines as matters to which a provider must not have regard.

(4) The provider must not vary a *fee unless the provider:

(a) does so:

(i) before the date ascertained in accordance with the Higher Education Provider Guidelines; and

(ii) in circumstances specified in the Higher Education Provider Guidelines; or

(b) does so with the written approval of the Minister.

19‑95 Schedules of student contribution amounts for places and tuition fees

(1) A higher education provider must give the Minister a schedule of the *student contribution amounts for places, and *tuition fees, determined under sections 19‑87 and 19‑90 for all the units of study it provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines. It must give the schedule:

(a) in a form approved by the Minister; and

(b) in accordance with the requirements that the Minister determines in writing.

(2) The provider must:

(a) ensure that the schedule provides sufficient information to enable a person to work out, for each unit of study the provider provides or is to provide:

(i) the person’s *student contribution amount; and

(ii) if the provider determined more than one student contribution amount for places in a unit under section 19‑87—which of those student contribution amounts applies to the person; and

(aa) ensure that the schedule provides sufficient information to enable a person to work out, for each unit of study the provider provides or is to provide:

(i) the person’s *tuition fee; and

(ii) if the provider determined more than one tuition fee for a unit under section 19‑90—which of those tuition fees applies to the person; and

(b) publish the schedule for a particular period by the date ascertained in accordance with the Higher Education Provider Guidelines; and

(c) ensure that the schedule is available to all students enrolled, and persons seeking to enrol, with the provider on request and without charge.

Civil penalty: 60 penalty units.

Replacement schedules

(3) If:

(a) the provider has given the Minister a schedule (the previous schedule) under:

(i) subsection (1); or

(ii) this subsection; and

(b) the provider:

(i) varies a *student contribution amount in the previous schedule; or

(ii) varies a *tuition fee in the previous schedule;

the provider must:

(i) withdraw the previous schedule; and

(ii) inform the Minister of the variation; and

(d) give the Minister a replacement schedule incorporating the variation.

Note 1: The provider must comply with subsection 19‑87(3) when varying a student contribution amount.

Note 2: The provider must comply with subsection 19‑90(4) when varying a tuition fee.

Civil penalty: 60 penalty units.

(4) Subsections (1) and (2) apply to the replacement schedule in a corresponding way to the way in which they apply to the previous schedule.

19‑100 Limits on fees for courses of study

A higher education provider must not charge a person a *fee for a *course of study that exceeds the sum of the person’s *tuition fees for all of the units of study undertaken with the provider by the person as part of the course.

19‑102 Meaning of fee

(1) A fee includes any tuition, examination or other fee payable to a higher education provider by a person enrolled with, or applying for enrolment with, the provider.

(2) A fee may also include any fee payable to the provider in respect of the granting of a *higher education award.

(3) A fee does not include a fee that is:

(a) payable in respect of an organisation of students, or of students and other persons; or

(b) payable in respect of the provision to students of amenities or services that are not of an academic nature; or

(d) imposed in accordance with the Higher Education Provider Guidelines for the imposition of fees in respect of *overseas students; or

(e) payable in respect of studies (other than an *enabling course) that are not permitted to be undertaken for the purpose of obtaining a *higher education award; or

(f) determined, in accordance with the Higher Education Provider Guidelines, to be a fee of a kind that is incidental to studies that may be undertaken with a higher education provider; or

(g) a *student contribution amount payable in respect of a student.

(4) The definition of fee in this section does not apply for the purposes of section 104‑50.

19‑105 Meaning of tuition fee

A person’s tuition fee for a unit of study is:

(a) if only one fee has been determined for the unit under subsection 19‑90(2)—that fee; or

(b) if more than one fee has been determined for the unit under that subsection—the fee determined under that subsection that applies to the person.

Subdivision 19‑G—The compact and academic freedom requirements

19‑110 Table A providers and Table B providers must enter into mission based compacts

(1) A higher education provider that is a *Table A provider or a *Table B provider must, in respect of each year for which a grant is paid to the provider under this Act, enter into a mission based compact with the Commonwealth for a period that includes that year.

(2) The Minister may, on behalf of the Commonwealth, enter into a mission based compact with a *Table A provider or a *Table B provider.

(3) The mission based compact must include:

(a) a statement of the provider’s mission; and

(b) a statement of the provider’s strategies for teaching and learning; and

(i) undertaking research; and

(ii) research training; and

(iii) innovation.

Note: A mission based compact may include other matters.

(4) The *Secretary must cause a copy of each mission based compact to be published on the Department’s website within 28 days after the making of the compact.

19‑115 Provider to have policy upholding free intellectual inquiry

A higher education provider that is a *Table A provider or a *Table B provider must have a policy that upholds free intellectual inquiry in relation to learning, teaching and research.

Division 22—When does a body cease to be a higher education provider?

Subdivision 22‑A—General

22‑1 Cessation of approval as a provider

(1) A body ceases to be approved as a higher education provider:

(a) if a decision to revoke the approval is in effect under Subdivision 22‑AA, 22‑B or 22‑D; or

(b) while the approval is suspended under section 22‑30; or

(c) if the notice of the provider’s approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.

(2) If a body ceases to be approved as a higher education provider, the Minister must ensure that *TEQSA is notified, in writing, of the cessation.

Subdivision 22‑AA—Revocation of approval if registration ceases or winding up order made

22‑2 Automatic revocation of approval if registration ceases

(1) The Minister must revoke a body’s approval as a higher education provider if:

(a) the body is no longer a *registered higher education provider; and

(b) in a case where *TEQSA has made either of the following decisions under the *TEQSA Act, the decision has not been set aside or quashed, and is no longer *subject to review:

(i) a decision under section 36 of that Act to refuse an application to renew the body’s registration under Part 3 of that Act;

(ii) a decision under section 101 of that Act to cancel the body’s registration under Part 3 of that Act.

(2) The Minister must notify the body in writing of the revocation. The notice must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.

(3) A notice of revocation under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the notice.

(4) A decision of the Minister to revoke a body’s approval as a higher education provider takes effect on the day that the notice of revocation under subsection (2) is registered in the *Federal Register of Legislation.

22‑3 Automatic revocation of approval if winding up order made

(1) The Minister must revoke a body’s approval as a higher education provider if:

(a) an order is made by a court, or by the Australian Securities and Investments Commission under Part 5.4C of the Corporations Act 2001, for the winding up of the body; and

(b) the order has not been set aside or quashed, and is no longer *subject to review.

(3) A notice of revocation under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the notice.

Subdivision 22‑B—Revocation for cause

22‑5 Revocation of approval if application for approval as a provider is false or misleading

The Minister may revoke a body’s approval as a higher education provider if the Minister:

(a) is satisfied that the body’s application under section 16‑40 for approval as a higher education provider contained material that was false or misleading; and

(b) complies with the requirements of section 22‑20.

22‑7 Revocation of approval if providing education and/or conducting research ceases to be the body’s principal purpose

(1) The Minister may revoke a body’s approval as a higher education provider if:

(a) the body’s principal purpose is no longer, or is no longer taken to be, either or both of the following:

(i) to provide education;

(ii) to conduct research; and

(2) The Minister may also revoke a body’s approval as a higher education provider if:

(a) the Minister is satisfied that any of the body’s purposes conflict with the body’s principal purpose of providing education and/or conducting research; and

(b) the Minister complies with the requirements of section 22‑20.

22‑10 Revocation of approval if status or accreditation changes

Bodies that cease to be Australian universities

(1) The Minister may revoke a body’s approval as a higher education provider if:

(a) the body was an *Australian university at the last time the body became a higher education provider; and

(b) since that time, the body has ceased to be an Australian university; and

Bodies that cease to be self‑accrediting entities

(2) The Minister may revoke a body’s approval as a higher education provider if:

(a) the body was a *self‑accrediting entity at the last time the body became a higher education provider; and

(b) since that time, the body has ceased to be a self‑accrediting entity; and

Self‑accrediting entities that cease to have authority to accredit courses

(2A) The Minister may revoke a body’s approval as a higher education provider if:

(a) the body was a *self‑accrediting entity at the last time the body became a higher education provider; and

(b) the body is no longer authorised by or under the *TEQSA Act to self‑accredit a *course of study that the body was authorised to self‑accredit at that time; and

Bodies that cease to be non self‑accrediting entities

(3) The Minister may revoke a body’s approval as a higher education provider if:

(a) the body was a *non self‑accrediting entity at the last time the body became a higher education provider; and

(b) since that time, the body has ceased to be a non self‑accrediting entity; and

Bodies offering courses that cease to be accredited courses

(4) The Minister may revoke a body’s approval as a higher education provider if:

(a) the body was a *self‑accrediting entity or a *non self‑accrediting entity at the last time the body became a higher education provider; and

(b) a *course of study offered by the body that was an *accredited course ceases to be an accredited course; and

Bodies that no longer meet certain approval criteria

(5) The Minister may revoke a body’s approval as a higher education provider if:

(a) the body no longer meets a requirement set out in:

(i) paragraph 16‑25(1)(a); or

(ii) paragraph 16‑25(1)(da); and

(b) the Minister complies with the requirements of section 22‑20.

22‑15 Revocation of approval as a provider for a breach of conditions or the quality and accountability requirements

(1) The Minister may revoke a body’s approval as a higher education provider if the Minister:

(a) is satisfied that the body has:

(i) breached a condition of a grant made to the body under Part 2‑2, 2‑2A, 2‑3 or 2‑4; or

(ii) breached a *quality and accountability requirement; or

(iii) breached a condition imposed on the body’s approval; and

(b) is satisfied that it is appropriate to take that action (see subsection (2)); and

Note: Section 16‑60 allows conditions to be imposed on the body’s approval.

(2) Without limiting the matters that the Minister may consider in deciding whether it is appropriate under this section to revoke a body’s approval as a higher education provider, the Minister may consider any or all of the following matters:

(a) whether the breach in question is of a minor or major nature;

(b) whether the breach has occurred before and, if so, how often;

(d) the impact of the breach on the higher education provided by the body;

(e) the impact of the breach on Australia’s reputation as a provider of high quality higher education;

(f) any other matter set out in the Higher Education Provider Guidelines.

22‑17 Revocation of approval as a provider if provider etc. not a fit and proper person

(1) The Minister may revoke a body’s approval as a higher education provider if the Minister:

(a) is satisfied that:

(i) the body; or

(ii) at least one person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body’s affairs;

is not a fit and proper person; and

(b) complies with the requirements of section 22‑20.

(2) The Minister must, in deciding whether he or she is satisfied that a person is not a fit and proper person, take into account the matters specified in an instrument under subsection 16‑25(4). The Minister may take into account any other matters he or she considers relevant.

Subdivision 22‑C—Process for decisions on revocation under Subdivision 22‑B

22‑20 Process for revoking approval

(1) Before revoking a body’s approval as a higher education provider under Subdivision 22‑B, the Minister must give the body notice in writing:

(a) stating that the Minister is considering revoking the body’s approval; and

(b) stating the reasons why the Minister is considering revoking the body’s approval; and

(c) inviting the body to make written submissions to the Minister within 28 days concerning why the approval should not be revoked.

(2) In deciding whether or not to revoke a body’s approval under Subdivision 22‑B, the Minister must consider any submissions received from the body within the 28 day period.

(3) The Minister must notify the body in writing of his or her decision whether to revoke the body’s approval under Subdivision 22‑B. The notice:

(a) must be in writing; and

(b) must be given within the period of 28 days following the period in which submissions may have been given to the Minister under subsection (1); and

(c) if the Minister decides to revoke the body’s approval—must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.

(3A) A notice of revocation under subsection (3) is a legislative instrument.

(4) If no notice is given within the period provided for in subsection (3), the Minister is taken to have decided not to revoke the approval.

(5) A decision of the Minister to revoke a body’s approval as a higher education provider takes effect on the day that the notice of revocation under subsection (3) is registered in the *Federal Register of Legislation.

(6) If the notice of revocation under subsection (3) ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003, then the decision to revoke the approval ceases to have effect at the same time.

22‑25 Determination retaining approval as a provider in respect of existing students

(1) The Minister may determine, in writing, that a revocation of a body’s approval as a higher education provider under Subdivision 22‑B is of no effect for the purposes of:

(a) grants to the body under this Chapter; and

(b) assistance payable to the body’s students under Chapter 3;

to the extent that the grants or assistance relate to students of the body who have not completed the *courses of study in which they were enrolled with the body on the day referred to in subsection 22‑20(5).

(2) The determination may be included in the notice of revocation under subsection 22‑20(3).

(3) The body is taken, for the purposes of this Act, to continue to be a higher education provider, but only to the extent referred to in subsection (1).

(4) Subsection (3) does not prevent the Minister subsequently revoking the body’s approval as a higher education provider under this Division.

22‑30 Suspension of approval as a provider

(1) The Minister may, by legislative instrument, determine that, with effect from a specified day, a body’s approval as a higher education provider is suspended pending the making of a decision under Subdivision 22‑B as to whether to revoke the body’s approval as a provider.

(2) A copy of the determination must be given to the body concerned.

(2A) Before the Minister makes a determination under subsection (1) in respect of a body, the Minister must give the body notice in writing:

(a) stating that the Minister is considering suspending the body’s approval; and

(b) stating the reasons why the Minister is considering suspending the body’s approval; and

(2B) In deciding whether or not to make a determination under subsection (1), the Minister must consider any response received from the body within the 14 day period.

(3) If the Minister makes a determination under subsection (1) in respect of a body, the Minister must give to the body a notice under section 22‑20 within a reasonable period of time after giving a copy of the determination to the body.

(4) A determination under this section:

(a) takes effect accordingly on the day specified in the determination; and

(b) ceases to have effect if the Minister decides not to revoke the body’s approval as a higher education provider.

22‑32 Determination retaining approval as a provider in respect of existing students following suspension of approval

(1) The Minister may determine, in writing, that a suspension of a body’s approval as a higher education provider under section 22‑30 is of no effect for the purposes of:

(a) grants to the body under this Chapter; and

(b) assistance payable to the body’s students under Chapter 3;

to the extent that the grants or assistance relate to students of the body who have not completed the *courses of study in which they were enrolled with the body on the day specified for the purposes of paragraph 22‑30(4)(a).

(2) A copy of the determination must be given to the body concerned.

(3) The body is taken, for the purposes of this Act, to continue to be a higher education provider, but only to the extent referred to in subsection (1).

(4) Subsection (3) does not prevent the Minister subsequently revoking the body’s approval as a higher education provider under this Division.

(5) A determination made under subsection (1) is not a legislative instrument.

Subdivision 22‑D—Revocation of approval on application

22‑40 Revocation of approval as a provider on application

(1) The Minister may revoke the approval of a body as a higher education provider if the body requests the Minister in writing to revoke the approval.

(2) The request must be given to the Minister at least 30 days before the day on which the revocation is requested to have effect.

(3) The Minister must cause the body to be notified of the revocation. The notice must:

(a) be in writing; and

(b) be given to the body at least 14 days before the day on which the revocation is to take effect.

(3A) A notice of revocation under subsection (3) is a legislative instrument.

(4) The revocation has effect on the day requested unless another day is specified in the notice under subsection (3).

Subdivision 22‑E—Notice of approval or revocation ceasing to have effect under the Legislation Act 2003

22‑45 Notice of approval ceasing to have effect under the Legislation Act 2003

(1) This section applies if:

(a) a decision of the Minister to approve a body corporate as a higher education provider has taken effect; and

(b) the body ceases to be approved as a higher education provider because the notice of the approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.

(2) The fact that the body ceases to be approved as a higher education provider does not:

(a) affect:

(i) the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or

(ii) anything duly done or suffered in relation to the body before the cessation; or

(b) affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or

(c) affect any penalty, forfeiture or punishment incurred in respect of the body having been a higher education provider; or

(d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the body had not ceased to be approved as a higher education provider.

22‑50 Notice of revocation ceasing to have effect under the Legislation Act 2003

(1) This section applies if:

(a) a decision of the Minister to revoke a body’s approval as a higher education provider has taken effect; and

(b) the decision to revoke the approval ceases to have effect because the notice of revocation ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.

(2) The fact that the decision to revoke the approval ceases to have effect does not:

(a) affect:

(i) the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or

(ii) anything duly done or suffered in relation to the body before the cessation; or

(b) affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or

(d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the decision to revoke the approval had not ceased to have effect.

Part 2‑2—Commonwealth Grant Scheme

Division 27—Introduction

27‑1 What this Part is about

Grants are payable under this Part to higher education providers that meet certain requirements. These grants are paid in relation to Commonwealth supported places.

Grants are subject to several conditions relating to the provision of Commonwealth supported places and other matters.

Amounts of grants may be reduced, or some or all of a grant may be repayable if a condition is breached (see Part 2‑5).

Note: This Part does not apply to Table C providers: see section 5‑1.

27‑5 Guidelines

(1) The grants payable under this Part are also dealt with in the Commonwealth Grant Scheme Guidelines and the Tuition Fee Guidelines.

(2) The provisions of this Part indicate:

(a) when a particular matter is, or may be, dealt with in the guidelines; and

(b) whether the matter is dealt with in the Commonwealth Grant Scheme Guidelines or the Tuition Fee Guidelines.

Note 1: The Commonwealth Grant Scheme Guidelines and the Tuition Fee Guidelines are made by the Minister under section 238‑10.

Note 2: The Commonwealth Grant Scheme Guidelines may also deal with matters arising under section 93‑10.

Division 30—Which higher education providers are eligible for a grant?

Subdivision 30‑A—Basic rules

30‑1 Eligibility for grants

(1) A grant under this Part is payable, as a benefit to students, to a higher education provider, in respect of the year 2005 or a later year, if:

(a) the provider:

(i) is a *Table A provider; and

(ii) has entered into a funding agreement with the Commonwealth under section 30‑25 in respect of a period that includes that year; or

(b) all of the following apply:

(i) the provider is a higher education provider specified in the Commonwealth Grant Scheme Guidelines as a higher education provider that can be paid grants under this Part;

(ii) the Minister has allocated a *number of Commonwealth supported places to the provider for that year under section 30‑10;

(iii) the provider has entered into a funding agreement with the Commonwealth under section 30‑25 in respect of a period that includes that year.

(2) However, a grant is payable to a higher education provider that is not a *Table A provider only if the grant relates only to *national priorities.

Subdivision 30‑B—Allocation of places

30‑10 Allocation of places

(1) Before the commencement of a year, the Minister may, for that year, allocate a specified *number of Commonwealth supported places to:

(a) a *Table A provider in relation to *designated courses of study; and

(b) a higher education provider referred to in subparagraph 30‑1(1)(b)(i).

Note: The Minister does not allocate places to Table A providers in relation to non‑designated courses of study.

(2) The allocation must specify the distribution of those places between the *funding clusters.

(2A) If the provider has indicated to the Minister its preferred distribution of those places, the Minister must have regard to that preferred distribution in deciding the distribution of those places.

(4) If the provider is not a *Table A provider, the allocation must specify:

(a) that it is only in respect of *national priorities; and

(b) the number of places for each national priority for which the provider is allocated places.

(5) If the allocation made under subsection (1) is made in writing, the allocation is not a legislative instrument.

30‑12 Designated courses of study

(1) Each of the following are designated courses of study in relation to a *Table A provider:

(a) non‑research *postgraduate courses of study;

(b) *courses of study in medicine;

(2) The Minister may, by legislative instrument, specify *courses of study for the purposes of paragraph (1)(c).

30‑15 Funding clusters

The funding clusters are:

Funding clusters
Law, Accounting, Administration, Economics, Commerce
Humanities
Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health
Education
Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts
Nursing
Engineering, Science, Surveying
Dentistry, Medicine, Veterinary Science, Agriculture

30‑20 National priorities

A national priority is a particular outcome:

(a) that relates to the provision of higher education; and

(b) that is an outcome specified in the Commonwealth Grant Scheme Guidelines as a national priority.

Note: The following are examples of national priorities:

(a) increasing the number of persons undertaking particular courses of study;

(b) increasing the number of particular kinds of persons undertaking courses of study;

Subdivision 30‑C—Funding agreements

30‑25 Funding agreements

(1) The Minister may, on behalf of the Commonwealth, enter into a funding agreement with a higher education provider relating to grants under this Part in respect of each year in a period of 3 years (the grant years).

(1A) In negotiating the agreement the Minister must have regard to all of the types of matters that the provider has indicated to the Minister it wishes to be specified in the agreement.

(2) The agreement may specify conditions to which the grants are subject, that are additional to the conditions that apply under Division 36.

Note: It is a condition of the grants that the provider comply with the agreement: see section 36‑65.

(2A) However, the agreement must not specify as a condition to which the grants are subject a matter in respect of which the Minister could have made a determination under subsection 36‑15(2) (or could have made such a determination but for subsection 36‑15(3)).

Note: The Minister has the power under subsection 36‑15(2) to determine that students are not to be enrolled as Commonwealth supported students in particular courses. The determination is disallowable (see subsection 36‑15(3)).

(2B) Where the agreement specifies conditions to which the grants are subject, that are additional to the conditions that apply under Division 36, those conditions must not relate to industrial relations matters.

(3) Without limiting subsection (2), the agreement may specify:

(aa) the *number of Commonwealth supported places allocated to the provider under section 30‑10 for the grant year; and

(a) in relation to one or more of the following:

(i) places in *undergraduate courses of study;

(ii) places in non‑research *postgraduate courses of study;

(iii) places in courses of study in medical programs;

(iv) places in courses of study in *enabling courses;

the minimum *number of Commonwealth supported places that the provider must provide in the grant year or grant years, or the maximum number of Commonwealth supported places that the provider may provide in the grant year or grant years, or both; and

(b) the maximum number of Commonwealth supported places provided by the provider which can have a regional loading in the grant years; and

(c) the maximum number of Commonwealth supported places provided by the provider which can have a medical student loading in the grant years; and

(ca) the maximum number of Commonwealth supported places provided by the provider which can have an enabling loading in the grant years; and

(cb) the maximum number of Commonwealth supported places provided by the provider which can have a transitional loading in the grant years; and

(d) the maximum amount of regional loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and

(da) the maximum amount of enabling loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and

(e) the maximum amount of transitional loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and

(g) adjustments that will apply to the amount of a grant payable to the provider under this Part if the provider breaches a condition of the grant.

30‑27 Funding agreement may specify maximum basic grant amounts

(1) A funding agreement may:

(a) for a higher education provider that is a *Table A provider—specify a maximum basic grant amount payable to the provider for a grant year for:

(i) *designated courses of study; and

(ii) *non‑designated courses of study; and

(b) for a higher education provider that is not a Table A provider—specify a maximum basic grant amount payable to the provider for a grant year.

Table A providers—maximum basic grant amounts for designated courses of study

(2) The *maximum basic grant amount for a *Table A provider for *designated courses of study must not be less than the amount worked out under subsection 33‑5(4) for the provider for the grant year.

Table A providers—maximum basic grant amounts for non‑designated courses of study

(3) The *maximum basic grant amount for a *Table A provider for *non‑designated courses of study must not be less than:

(a) if a maximum basic grant amount was specified in the provider’s funding agreement for the preceding year for non‑designated courses of study—the amount that was so specified; or

(b) if a maximum basic grant amount was not specified in the provider’s funding agreement for the preceding year for non‑designated courses of study—the amount worked out under paragraph 33‑5(5)(a) for the provider for the preceding year.

Non‑Table A providers—maximum basic grant amounts

(4) The *maximum basic grant amount for a provider that is not a *Table A provider must not be less than the amount worked out under subsection 33‑5(8) for the provider for the grant year.

30‑28 Funding agreement to be published

The *Secretary must cause a copy of each funding agreement to be published on the Department’s website within 28 days after the making of the agreement.

Division 33—How are grant amounts worked out?

Subdivision 33‑A—Basic rule

33‑1 How grant amount is worked out

(1) The amount of a grant payable to a higher education provider under this Part for a year is worked out by:

(a) working out the *basic grant amount for the provider for that year under Subdivision 33‑B; and

(b) adding:

(i) the amount of any regional loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and

(ii) the amount of any medical student loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and

(iii) the amount of any enabling loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and

(iv) the amount of any transitional loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and

(v) the amount of any performance funding grant amount worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year.

(2) Advances may be paid to a higher education provider under Subdivision 33‑D.

Note: Part 5‑1 deals with how payments can be made.

Subdivision 33‑B—Basic grant amounts

33‑5 Basic grant amounts

(1) This section sets out how to work out the basic grant amount for a higher education provider for a year.

Basic grant amounts for Table A providers

(2) For a *Table A provider, the *basic grant amount for a year is the sum of:

(a) the amount for *designated courses of study (see subsection (3)); and

(b) the amount for *non‑designated courses of study (see subsections (5) and (6)).

Table A providers—amount for designated courses of study

(3) For the purposes of paragraph (2)(a), the amount for *designated courses of study is the lesser of:

(a) the sum of the amounts worked out, for each *funding cluster in which the provider has provided places in *designated courses of study, by multiplying:

(i) the *number of Commonwealth supported places provided by the provider in designated courses of study in that funding cluster; by

(ii) the *Commonwealth contribution amount for a place in that funding cluster; and

(b) either:

(i) if there is a *maximum basic grant amount specified in the provider’s funding agreement for designated courses of study—that specified amount; or

(ii) if there is no maximum basic grant amount specified in the provider’s funding agreement for designated courses of study—the amount worked out under subsection (4).

(4) For the purposes of subparagraph (3)(b)(ii), the amount is the sum of the amounts worked out, for each *funding cluster to which the Minister has allocated places to the provider under section 30‑10, by multiplying:

(a) the *number of Commonwealth supported places allocated to that funding cluster; by

(b) the *Commonwealth contribution amount for a place in that funding cluster.

Table A providers—amount for non‑designated courses of study

(5) For the purposes of paragraph (2)(b) and subject to subsection (6), the amount for *non‑designated courses of study is the lesser of:

(a) the sum of the amounts worked out, for each *funding cluster in which the provider has provided places in non‑designated courses of study, by multiplying:

(i) the *number of Commonwealth supported places provided by the provider in non‑designated courses of study in that funding cluster; by

(ii) the *Commonwealth contribution amount for a place in that funding cluster; and

(b) the *maximum basic grant amount specified in the provider’s funding agreement in relation to non‑designated courses of study.

(6) If a *maximum basic grant amount is not specified in the provider’s funding agreement in relation to *non‑designated courses of study, the amount for non‑designated courses of study is the amount worked out under paragraph (5)(a).

Basic grant amounts for non‑Table A providers

(7) For a provider that is not a *Table A provider, the *basic grant amount for a year is the lesser of:

(a) the sum of the amounts worked out, for each *funding cluster in which the provider has provided places, by multiplying:

(i) the *number of Commonwealth supported places provided by the provider in that funding cluster; by

(ii) the *Commonwealth contribution amount for a place in that funding cluster; and

(b) either:

(i) if there is a *maximum basic grant amount specified in the provider’s funding agreement—that specified amount; or

(ii) if there is no maximum basic grant amount specified in the provider’s funding agreement—the amount worked out under subsection (8).

(8) For the purposes of subparagraph (7)(b)(ii), the amount is the sum of the amounts worked out, for each *funding cluster to which the Minister has allocated places to the provider under section 30‑10, by multiplying:

(a) the *number of Commonwealth supported places allocated to that funding cluster; by

(b) the *Commonwealth contribution amount for a place in that funding cluster.

33‑10 Commonwealth contribution amounts

The Commonwealth contribution amount, for a place in a *funding cluster, is:

Commonwealth contribution amount
Item	Funding cluster	Commonwealth contribution amount
1	Law, Accounting, Administration, Economics, Commerce	$1,765
2	Humanities	$4,901
3	Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health	$8,670
4	Education	$9,020
5	Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts	$10,662
6	Nursing	$11,903
7	Engineering, Science, Surveying	$15,156
8	Dentistry, Medicine, Veterinary Science, Agriculture	$19,235

Note: Commonwealth contribution amounts are indexed under Part 5‑6.

33‑30 Working out the number of Commonwealth supported places provided

(1) The number of Commonwealth supported places that a higher education provider has provided during a particular year is a number equal to the number worked out as follows:

Method statement

Step 1. For each unit of study (other than a unit of study that wholly consists of *work experience in industry) that the provider provided that had its *census date during the year, multiply:

(a) the *EFTSL value of the unit; by

(b) the number of persons enrolled with the provider in that unit as *Commonwealth supported students.

Step 2. Add together all of the amounts worked out under step 1.

(2) For the purposes of this section, if:

(a) a unit of study provided by the provider forms part of more than one *course of study; and

(b) the provider determines under subsection 169‑28(2) an *EFTSL value of the unit for each such course;

the unit is taken to be a different unit of study in respect of each such course.

(3) To work out the *number of Commonwealth supported places that a higher education provider has provided as mentioned in an item of column 1 of the following table, apply the method statement in subsection (1) to the units of study mentioned in column 2 of that item.

Item	Column 1 To work out the number of Commonwealth supported places provided in ...	Column 2 apply the method statement in subsection (1) to ...
1	a *funding cluster	units provided by the provider in the funding cluster.
2	*designated courses of study in a funding cluster	units provided by the provider in the funding cluster in designated courses of study.
3	*non‑designated courses of study in a funding cluster	units provided by the provider in the funding cluster in non‑designated courses of study.

33‑35 Funding clusters in which units of study are included

The Commonwealth Grant Scheme Guidelines may specify:

(a) how to determine, for the purposes of this Act, the *funding clusters in which units of study are included; or

(b) the particular funding cluster in which a particular unit of study is included for the purposes of this Act.

Subdivision 33‑C—Adjustments

33‑37 Adjustments for breach of section 19‑37

(1) A higher education provider’s *basic grant amount for the grant year is reduced by an adjustment in respect of the grant year if, on one or more occasions during the grant year, the provider breaches a condition imposed under section 19‑37.

(2) The adjustment under subsection (1) is an amount worked out using the formula:

where:

reduction amount is $100.

Note: The reduction amount is indexed under Part 5‑6.

total places provided is the total *number of Commonwealth supported places provided by the higher education provider for the grant year.

(3) This section does not apply in relation to a breach of a condition imposed under section 19‑37 by a higher education provider if:

(a) the breach consists of requiring a person to pay money to the provider or another entity; and

(b) as a result of the requirement, the person paid money to the provider or other entity; and

(d) the provider or other entity repays the money to the person within 28 days after the Minister gave the notice to the provider.

(4) If the Minister becomes aware that:

(a) a higher education provider has breached a condition imposed under section 19‑37; and

(b) the breach consists of requiring a person to pay money to the provider or another entity;

the Minister must give to the provider a written notice:

(c) requiring repayment, within 28 days after the notice is given, of any money paid to the provider or any other entity as a result of the requirement; and

(d) stating that failure to repay any such money within that period will result in a reduction under this section of the provider’s *basic grant amount for the grant year in question.

The notice may relate to more than one breach.

(5) A failure by the Minister to give a notice under subsection (4) in relation to a breach of a condition imposed under section 19‑37 does not prevent this section from applying in relation to the breach.

(6) This section does not apply more than once in relation to a higher education provider’s *basic grant amount for a grant year.

Subdivision 33‑D—Special purpose advances

33‑40 Advances for certain purposes

(1) The Minister may, if an amount has been specified under subsection (3A), determine that an advance is payable to a higher education provider, in respect of a year, in relation to expenditure of the provider for such purposes as the Minister determines.

(2) The Minister may pay an advance to the provider under subsection (1) on such conditions (if any) as the Minister determines.

(3) The total of the advances in respect of a year must not exceed the amount specified by the Minister under subsection (3A).

(3A) The Minister may, by legislative instrument, specify an amount for the purposes of subsection (3).

(4) If the Minister determines an advance for the provider in respect of a year, the amounts of grant payable to the provider under section 33‑1 in respect of:

(a) the year next following that year; or

(b) the 2 years next following that year; or

are reduced by amounts that equal in total the amount of the advance.

(5) Determinations under subsections (1) and (2), and reductions under subsection (4), must be made in accordance with Commonwealth Grant Scheme Guidelines.

Division 36—What are the conditions of receiving a grant?

Subdivision 36‑A—General

36‑1 Condition of grant to comply with this Division

(1) A higher education provider receives a grant under this Part on condition that the provider complies with this Division.

(2) Without limiting subsection (1), the following provisions of this Division do not of their own force require the provider to do any act or thing.

Subdivision 36‑B—Conditions relating to Commonwealth supported students

36‑5 Meaning of Commonwealth supported student

(1) A person is a Commonwealth supported student, in relation to a unit of study, if:

(a) the higher education provider with which he or she is enrolled in that unit has advised the person in writing that he or she is a Commonwealth supported student:

(i) in relation to the unit; or

(ii) if the person is undertaking a *course of study with the provider of which the unit forms a part—in relation to that course of study; and

(b) at the end of the *census date for the unit, the higher education provider would not have been prohibited, under section 36‑10 or 36‑15, or both, from so advising the person.

(3) However, the person is not a Commonwealth supported student in relation to the unit if he or she notifies an *appropriate officer of the provider that he or she does not wish to be a Commonwealth supported student in relation to the unit.

(4) A notice under subsection (3):

(a) must be in writing; and

(b) must be given on or before the *census date for the unit.

36‑10 Advice on whether a person is a Commonwealth supported student

When a provider must not advise that a person is Commonwealth supported

(1) 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:

(a) the provider has entered into a funding agreement under section 30‑25 for the year in which the person is undertaking the unit; and

(b) the unit contributes to the requirements of a *course of study in which the person is enrolled with that provider or another higher education provider; and

(c) the person meets the citizenship or residency requirements for the purposes of this paragraph (see subsections (2) and (2A)); and

(e) the person:

(i) enrolled in the unit on or before the *census date for the unit; and

(ii) at the end of the census date, remained so enrolled.

(2) A person meets the citizenship or residency requirements for the purposes of paragraph (1)(c) if the person is:

(a) an Australian citizen; or

(b) a citizen of New Zealand who will be resident within Australia for the duration of the unit; or

(2A) In determining, for the purposes of subparagraph (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:

(a) it cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit; or

(b) it is required for the purpose of completing a requirement of that unit.

(2B) Despite subsections (2) and (2A), a person does not meet the citizenship or residency requirements under subsection (2), 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.

Persons who do not wish to be Commonwealth supported

(3) 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 if the person has notified an *appropriate officer of the provider that he or she does not wish to be a Commonwealth supported student in relation to the unit.

(4) A notice under subsection (3):

(a) must be in writing; and

(b) must be given on or before the *census date for the unit.

Additional requirement for non‑Table A providers

(5) A higher education provider that is not a *Table A provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study unless:

(a) the unit in which the person is enrolled is within a *national priority; and

(b) the provider has received a grant under this Part for that national priority for the year in which the person is undertaking the unit; and

(c) if the national priority is a *course of study that has been specified in the Commonwealth Grant Scheme Guidelines to be a national priority—the unit is contributing to the requirements of that course.

Additional requirement relating to work experience in industry

(6) 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 that wholly consists of *work experience in industry unless:

(a) the unit forms part of a *course of study; and

(b) the person is enrolled, or has previously been enrolled, in another unit of study in that course:

(i) that does not, or did not, wholly consist of work experience in industry; and

(ii) in relation to which the person is, or was, a Commonwealth supported student.

Units of study at full fee summer or winter schools

(7) 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 if:

(a) the person undertakes the unit wholly during a summer school period (the current summer school period) or a winter school period (the current winter school period); and

(b) the provider has determined that this subsection applies to the unit.

(8) A higher education provider may determine that subsection (7) applies to a unit of study only if each person who could undertake the unit during the current summer school period or current winter school period could undertake, or could have undertaken, the unit during a period other than a summer school period or winter school period as part of a *course of study undertaken by the person with the higher education provider.

(9) The higher education provider must make the determination:

(a) before the start of the current summer school period, if the determination relates to a unit undertaken during a summer school period; or

(b) before the start of the current winter school period, if the determination relates to a unit undertaken during a winter school period.

(10) In this section:

summer school period means a period that starts on or after 1 November in a year and ends after 1 January, but before 1 March, in the following year.

winter school period means a period that starts on or after 1 June in a year and ends on or before 31 August in that year.

36‑15 Persons not to be advised they are Commonwealth supported

(1A) A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study if:

(a) the unit contributes to the requirements of a *course of study; and

(b) the course of study is, or is to be, undertaken by the person primarily at an overseas campus.

(1) A higher education provider must not advise a person enrolled in a unit of study with the provider that the person is a *Commonwealth supported student in relation to the unit if:

(a) the enrolment is in an *employer reserved place; or

(b) the unit forms part of a *bridging course for overseas‑trained professionals; or

(2) The Minister may, by legislative instrument, determine that:

(a) a specified *course of study is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as *Commonwealth supported students; or

(b) a *course of study of a specified type is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as *Commonwealth supported students.

(3) In deciding whether to make a determination under subsection (2), the Minister must have regard to the effect of the determination on students undertaking the course, or a course of that type.

(4) A determination of the Minister under subsection (2) must not be made later than 6 months before the day that students are able next to commence the specified course, or a course of that type, with the provider.

36‑20 Providers to repay amounts—special circumstances

(1) A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person if:

(a) the person has been enrolled as a *Commonwealth supported student with the provider in a unit of study; and

(b) the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and

(c) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and

(d) the provider is satisfied that special circumstances apply to the person (see section 36‑21); and

(e) the person applies in writing to that provider for either or both:

(i) the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or

(ii) the remission of the person’s *HECS‑HELP debt in relation to the unit; and

(f) either:

(i) the application is made before the end of the application period under section 36‑22; or

(ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.

Note 1: A HECS‑HELP debt of a person to whom this section applies is remitted under subsection 137‑5(4).

Note 2: A decision that this section does not apply to a person is reviewable under Part 5‑7.

(2) If the provider determines that this section applies to a person, the provider must:

(a) pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and

(b) pay to the Commonwealth an amount equal to any *HECS‑HELP assistance to which the person was entitled for the unit.

(3) Subsection (2) does not apply to the provider if:

(a) the person enrolled in the unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements; or

(b) it is determined that section 36‑24A applies to the person.

(4) The Higher Education Provider Guidelines may, in setting out the *tuition assurance requirements, specify, in relation to circumstances to which paragraph (3)(a) applies:

(a) the amount (if any) that is to be paid to the person; and

(b) the amount (if any) that is to be paid to the Commonwealth; and

(5) If a determination made under subsection (1) is made in writing, the determination is not a legislative instrument.

36‑21 Special circumstances

(1) For the purposes of paragraph 36‑20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:

(a) are beyond the person’s control; and

(b) do not make their full impact on the person until on or after the *census date for the unit of study; and

(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.

(2) The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.

Note: Guidelines made for the purposes of this subsection also have effect for the purposes of subsection 104‑30(2) (re‑crediting a person’s FEE‑HELP balance).

36‑22 Application period

(1) For the purposes of subparagraph 36‑20(1)(f)(i), if:

(a) the person has withdrawn his or her enrolment in the unit of study; and

(b) the higher education provider gives notice to the person that the withdrawal has taken effect;

the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

(2) If subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.

36‑23 Dealing with applications

(1) If:

(a) the application under paragraph 36‑20(1)(e) is made before the end of the application period under section 36‑22; or

(b) the higher education provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period;

the provider must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision on the application.

(2) The notice must include a statement of the reasons for the decision.

36‑24A Providers to repay amounts—provider ceases to provide course

(1) A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person if:

(a) the person has been enrolled as a *Commonwealth supported student with the provider in a unit of study; and

(b) the unit would, if completed, form part of a *course of study undertaken with the provider; and

(c) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and

(d) the *tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and

(e) the person chose the option designated under the tuition assurance requirements as student contribution/tuition fee repayment in relation to the unit.

Note: A HECS‑HELP debt of a person to whom this section applies is remitted under subsection 137‑5(4).

(2) The provider must:

(a) pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and

(b) pay to the Commonwealth an amount equal to any *HECS‑HELP assistance to which the person was entitled for the unit.

(3) If a determination made under subsection (1) is made in writing, the determination is not a legislative instrument.

36‑24B Providers to repay amounts—no tax file numbers

(1) This section applies to a person if a higher education provider cancels the person’s enrolment in a unit of study under subsection 193‑5(1).

Note: A HECS‑HELP debt of a person to whom this section applies is remitted under subsection 137‑5(4).

(2) The provider must:

(a) pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and

(b) pay to the Commonwealth an amount equal to any *HECS‑HELP assistance to which the person was entitled for the unit.

36‑24C Secretary may act if provider is unable to

If a higher education provider is unable to act for one or more of the purposes of subsection 36‑20(1), section 36‑21, 36‑22 or 36‑23 or subsection 36‑24A(1), the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.

Subdivision 36‑C—Conditions relating to enrolment

36‑25 Continued support for Commonwealth supported students

(1) A higher education provider must advise a person who is enrolled in a unit of study with the provider, as part of a *course of study being undertaken with the provider, that he or she is a *Commonwealth supported student in relation to the unit if:

(a) the person is or has been a Commonwealth supported student in relation to one or more other units of study, undertaken with the provider, as part of the course; and

(b) the provider is not prohibited, under section 36‑10 or section 36‑15, or both, from so advising the person.

(2) A *Table A provider (the host provider) must advise a person who is enrolled in a unit of study with the provider, as part of a *course of study being undertaken with another Table A provider (the home provider), that he or she is a *Commonwealth supported student in relation to the unit if:

(a) the person is or has been a Commonwealth supported student in relation to one or more other units of study in the course undertaken with the home provider; and

(b) the person must undertake the unit, because it is required to complete the course; and

(3) If a higher education provider has, under subparagraph 36‑5(1)(a)(ii), advised a person that he or she is a Commonwealth supported student in relation to a *course of study with the provider, then the higher education provider is taken to have advised the person that he or she is a Commonwealth supported student in relation to each unit of study undertaken with the provider, as part of that course.

36‑30 Providers to enrol persons as Commonwealth supported students

Table A providers

(1) If:

(a) a person is to be enrolled with a *Table A provider in a unit of study; and

(aa) the unit to be undertaken with the provider forms part of an *undergraduate course of study; and

(b) the provider is not prohibited, under section 36‑10 or section 36‑15, or both, from advising the person that he or she is a *Commonwealth supported student in relation to the unit;

the provider must enrol the person in the unit as a Commonwealth supported student.

(2) Subsection (1) does not apply in respect of a person’s enrolment with a *Table A provider in a unit of study that forms part of an *undergraduate course of study if:

(a) the person commences the undergraduate course of study with the provider before 1 January 2009; or

(b) both:

(i) the person transfers to the undergraduate course of study with the provider on or after 1 January 2009 from another undergraduate course of study in which the person was enrolled with the provider before 1 January 2009; and

(ii) the person had not completed that other undergraduate course of study; or

(i) the person was offered, and accepted, a place (other than a Commonwealth supported place) in the undergraduate course of study with the provider before 1 January 2009;

(ii) the undergraduate course of study was to commence before 1 January 2009;

(iii) with the provider’s approval, the person commences the course of study after that time; or

(d) at the time the person commences the undergraduate course of study with the provider, the person is an *overseas student.

Other higher education providers

(3) If a person is to be enrolled, with a higher education provider that is not a *Table A provider, in a unit of study, the provider must enrol the person in the unit as a *Commonwealth supported student if:

(a) completion of the unit is in furtherance of a *national priority; and

(b) places have been allocated to the provider under section 30‑10 in respect of that national priority for the year in which the person is enrolled in the unit.

(4) Subsection (3) does not apply, and is taken never to have applied, in relation to that enrolment if:

(a) in respect of the year in which the person is enrolled in the unit, the provider has already filled, or fills, all of the *number of Commonwealth supported places in respect of that *national priority; or

(b) the person notifies an *appropriate officer of the provider that he or she does not wish to be a *Commonwealth supported student in relation to the unit.

Notices under paragraph (4)(b)

(5) A notice under paragraph (4)(b):

(a) must be in writing; and

(b) must be given on or before the *census date for the unit.

36‑40 Providers to cancel enrolments in certain circumstances

(1) A higher education provider must cancel a person’s enrolment in a unit of study with the provider if the person:

(a) is enrolled as a *Commonwealth supported student in relation to the unit; and

(b) has not, on or before the *census date for the unit:

(i) completed, and signed, a *request for Commonwealth assistance in relation to the unit or, where the unit forms part of a *course of study undertaken with the provider, in relation to the course of study; and

(ii) given it to an *appropriate officer of the provider.

(2) A higher education provider must cancel a person’s enrolment in a unit of study with the provider if the person:

(a) is enrolled as a *Commonwealth supported student in relation to the unit; and

(b) is not entitled to *HECS‑HELP assistance for the unit; and

(c) has not, on or before the *census date for the unit, paid to the provider the whole of the person’s *student contribution amount for the unit.

However, this subsection does not apply if the person’s student contribution amount for the unit is a nil amount.

(3) A request for Commonwealth assistance, in relation to a person enrolling in a unit of study with a higher education provider (where access to the unit was not provided by *Open Universities Australia), means a document:

(a) in which the person requests the Commonwealth to provide assistance under this Act in relation to the unit or, where the unit forms part of a *course of study undertaken with the provider, in relation to the course of study; and

(b) that is in the form approved by the Minister.

Subdivision 36‑D—Conditions relating to student contribution amounts

36‑45 Limits on student contribution amounts

If a person is enrolled with a higher education provider in a unit of study as a *Commonwealth supported student, the provider must not charge, as the person’s *student contribution amount for the unit, an amount that exceeds the amount worked out as follows:

Subdivision 36‑E—Conditions relating to tuition fees

36‑55 Tuition fees for non‑Commonwealth supported students

Tuition fees for units of study

(1) A higher education provider must not determine, as a person’s *tuition fee for a unit of study, an amount that is less than:

(a) if paragraph (b) does not apply—the highest *student contribution amount that the provider would charge any person who is a *Commonwealth supported student in relation to the unit; or

(b) such other higher amount as is specified in the Tuition Fee Guidelines.

(2) Subsection (1) does not apply if the person is enrolled in an *employer reserved place. However, the provider must not charge, as the person’s *tuition fees for the unit, amounts that are such that the sum of:

(a) the tuition fees; and

(b) the *employer contribution amount for the unit;

is less than:

(d) such amount as is specified in the Tuition Fee Guidelines for the purposes of paragraph (1)(b).

(3) If a person:

(a) is enrolled in study with a higher education provider on a *non‑award basis; and

(b) could have enrolled in that study as a unit of study if the enrolment were not on a non‑award basis;

the provider must not charge, as the person’s *fees for the study, amounts that in total are less than the highest amount that the provider would charge any person:

(d) who is a *Commonwealth supported student in relation to the unit.

Subdivision 36‑F—Other conditions

36‑60 Providers to meet the quality and accountability requirements

A higher education provider must meet the *quality and accountability requirements.

36‑65 Providers to comply with funding agreement

A higher education provider must comply with any funding agreement the provider enters into under section 30‑25.

36‑70 Providers to comply with the Commonwealth Grant Scheme Guidelines

(1) The Commonwealth Grant Scheme Guidelines may specify conditions that higher education providers must comply with for the purposes of this Division.

(2) A higher education provider must comply with all such conditions in respect of any year for which the provider receives a grant under this Part.

(3) However, the provider need not comply with such a condition during a particular year if the condition comes into force on or after the day on which the provider entered into a funding agreement under section 30‑25 in respect of a period that includes that year.

Part 2‑2A—Indigenous student assistance grants

Division 38—Indigenous student assistance grants

38‑1 What this Part is about

Grants for assisting Indigenous students are payable under this Part to Table A providers and Table B providers.

Note: This Part does not apply to Table C providers: see section 5‑1.

38‑5 Indigenous Student Assistance Grants Guidelines

Grants under this Part are also dealt with in the Indigenous Student Assistance Grants Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The Indigenous Student Assistance Grants Guidelines are made by the Minister under section 238‑10.

38‑10 Eligibility for grants under this Part

(1) A *Table A provider or *Table B provider is, subject to subsection (3), eligible for grants under this Part, in respect of the year 2017 or a later year, for the following purposes:

(a) assisting Indigenous students to undertake higher education;

(b) increasing the number of Indigenous students enrolling in, progressing in and completing courses leading to *higher education awards.

(2) Without limiting subsection (1), the purposes mentioned in that subsection may be achieved through the following means:

(a) providing scholarships;

(b) providing academic support, including supplementary tuition;

(d) implementing strategies to:

(i) accelerate improvements to Indigenous student outcomes in higher education; or

(ii) foster culturally‑safe learning environments in higher education.

(3) If the Indigenous Student Assistance Grants Guidelines:

(a) provide for a grant; and

(b) specify extra conditions of eligibility to receive the grant;

then a *Table A provider or *Table B provider is not eligible for the grant unless the provider complies with those extra conditions.

38‑15 Guidelines may provide for grants

(1) The Indigenous Student Assistance Grants Guidelines may provide for one or more grants to *Table A providers and *Table B providers for purposes specified in subsection 38‑10(1).

(2) If the Indigenous Student Assistance Grants Guidelines provide for one or more grants of a particular type, the guidelines may also specify all or any of the following matters for the grants:

(a) the grants’ objectives;

(b) the extra conditions of eligibility to receive the grants;

(c) the amount, being part of the amount referred to in section 38‑45 for a year, that will be spent on grants of that type in that particular year;

(d) the indexation of that amount for subsequent years, using the method of indexation set out in Part 5‑6;

(e) the amounts of the grants, or the methods by which the amounts of the grants will be determined;

(f) the year or years in respect of which the grants are payable;

(g) the conditions that apply to the grants.

38‑20 Approval of grants

The Minister may, by notifiable instrument, approve a grant under this Part in respect of a year to a particular higher education provider that is eligible for such a grant.

38‑25 Conditions on grants

(1) A grant is made on the following conditions:

(a) if the grant is provided for by the Indigenous Student Assistance Grants Guidelines and the guidelines specify conditions that apply to the grant:

(i) on the conditions provided for in the guidelines; and

(ii) also on the condition that the higher education provider receiving the grant must meet the *quality and accountability requirements;

(b) if paragraph (a) does not apply:

(i) on such conditions (if any) as the Minister determines under subsection (2); and

(ii) also on the condition that the higher education provider receiving the grant must meet the quality and accountability requirements.

(2) For the purposes of subparagraph (1)(b)(i), the Minister may, by notifiable instrument, determine conditions that apply to one or more grants that a particular higher education provider receives.

38‑30 Amounts of grants

(1) The amount of a grant is:

(a) if:

(i) the grant is provided for by the Indigenous Student Assistance Grants Guidelines; and

(ii) the guidelines specify the amount of the grant, or a method by which the amount of the grant is to be determined;

the specified amount, or the amount determined by the specified method; or

(b) if paragraph (a) does not apply—the amount determined by the Minister under subsection (2).

(2) For the purposes of paragraph (1)(b), the Minister may, by notifiable instrument, determine the amounts of one or more grants that a particular higher education provider receives.

38‑35 Amounts payable under this Part

If:

(a) a higher education provider meets, in respect of a year, the requirements of the Indigenous Student Assistance Grants Guidelines for the purposes of section 38‑15 in relation to a grant; or

(b) the Minister approves, under section 38‑20, a grant to a higher education provider in respect of a year;

there is payable to the provider concerned, in respect of that year, an amount equal to the amount referred to in section 38‑30 in respect of that grant.

38‑40 Rollover of grant amounts

(1) If:

(a) a higher education provider to which a grant under this Part has been made in respect of a year fails to spend an amount of that grant; and

(b) the *Secretary determines under subsection (3) that this section is to apply to the provider in respect of that grant;

then so much of the unspent amount as the Secretary determines under that subsection is taken to be granted to the provider under this Part in respect of the next following year.

(2) The grant is taken to be made:

(a) under the same conditions as the conditions of the original grant, except the grant is taken to be made in respect of the next following year; or

(b) under such other conditions as the Secretary determines under subsection (4).

(3) For the purposes of subsection (1), the Secretary may, by notifiable instrument, determine:

(a) that this section is to apply to a particular higher education provider in respect of one or more grants; and

(b) for each grant, an amount of the unspent amount of the grant.

(4) For the purposes of paragraph (2)(b), the Secretary may, by notifiable instrument, determine conditions that apply to one or more grants made to a particular higher education provider.

38‑45 Maximum payments for grants under this Part

(1) The total payments made under this Part in respect of a year must not exceed the amount determined by the Minister under subsection (2) in respect of the year.

(2) The Minister may, by legislative instrument, determine the total payments made under this Part in respect of a year.

Note: A single instrument may determine amounts for multiple years.

(3) A determination under subsection (2) for a year must be made before the start of that year.

(4) The Minister may, by legislative instrument, at any time before the end of a year, vary a determination made under subsection (2) for the year.

Part 2‑3—Other grants

Division 41—Other grants

41‑1 What this Part is about

Grants under this Part are payable to higher education providers and other eligible bodies for a variety of purposes.

Note: This Part does not apply to Table C providers: see section 5‑1.

41‑5 The Other Grants Guidelines

Other grants are also dealt with in the Other Grants Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The Other Grants Guidelines are made by the Minister under section 238‑10.

41‑10 Eligibility for grants under this Part

(1) Subject to subsection (2), a body corporate referred to in an item in the third column of the table is eligible for grants under this Part, in respect of the year 2005 or a later year, for the purposes specified in the second column of that item.

Eligibility for grants under this Part
Item	Purpose of grant	Who is eligible
1	Grants to promote equality of opportunity in higher education	*Table A providers
2	Grants to promote the productivity of higher education providers	*Table A providers
4	Grants to support national institutes specified in the Other Grants Guidelines for the purposes of this item	*Table A providers
5	Grants to support the capital development projects of higher education providers	Table A providers and Table B providers
6	Grants to assist with the cost of higher education providers’ superannuation liabilities	*Table A providers
7	Grants to support research by, and the research capability of, higher education providers	Table A providers and Table B providers
8	Grants to support the training of research students	Table A providers and Table B providers
9	Grants to foster collaboration and reform in higher education	*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item
9A	Grants to support diversity and structural reform	Table A providers, Table B providers that are universities, and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item
9B	Grants to support structural adjustment	Table A providers and Table B providers that are universities
10	Grants to support the development of systemic infrastructure used by higher education providers	*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item
11	Grants for activities that: (a) assure and enhance the quality of Australia’s higher education sector; or (b) foster an understanding of the importance of, or promote research and scholarship in, science, social science or the humanities in Australia; or (c) support open access to higher education across Australia.	*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item
12	Grants to assist higher education providers with the transitional costs of changes to maximum student contribution amounts	Higher education providers that have provided Commonwealth‑supported places for any year

(2) If the Other Grants Guidelines:

(a) specify a program under which grants for a particular purpose specified in the table are to be paid; and

(b) specify extra conditions of eligibility to receive a grant under the program;

then a body corporate specified in the table in respect of those grants is not eligible for such a grant unless it complies with those extra conditions.

41‑15 Grants may be paid under programs

(1) The Other Grants Guidelines may specify one or more programs under which grants for particular purposes specified in the table in subsection 41‑10(1) are to be paid.

(2) If the Other Grants Guidelines specify a program for a grant for a particular purpose, the guidelines may also specify all or any of the following matters for the program:

(a) the program’s objectives;

(b) the extra conditions of eligibility to receive a grant under the program;

(c) the amount, being a part of the amount referred to in section 41‑45 for a year, that will be spent on the program in that particular year;

(d) the indexation of that amount for subsequent years, using the method of indexation set out in Part 5‑6;

(e) the method by which the amount of grants under the program will be determined;

(f) whether grants under a program are in respect of a year or a project;

(g) the conditions that apply to grants under the program.

41‑20 Approval of grants

The Minister may approve a grant under this Part in respect of a year or a project to a body corporate that is eligible for such a grant.

41‑25 Conditions on grants

A grant is made on the following conditions:

(a) if the grant is made under a program and the Other Grants Guidelines specified conditions that apply to a grant under that program:

(i) on the conditions provided for in the guidelines; and

(ii) if the body receiving the grant is a higher education provider—also on the condition that the body must meet the *quality and accountability requirements; or

(b) if paragraph (a) does not apply:

(i) on such conditions (if any) as the Minister determines in writing; and

(ii) if the body receiving the grant is a higher education provider—also on the condition that the body must meet the quality and accountability requirements.

41‑30 Amount of a grant

The amount of a grant is:

(a) if the grant is made under a program and the Other Grants Guidelines specify a method by which the amount of grants under the program are to be determined—the amount determined by that method; or

(b) if paragraph (a) does not apply—the amount determined in writing by the Minister.

41‑35 Amounts payable under this Part

If:

(a) a body corporate meets, in respect of a year, the requirements of the Other Grants Guidelines made for the purposes of section 41‑15 in relation to a program; or

(b) the Minister approves, under section 41‑20, a grant to a body corporate in respect of a year or project;

there is payable to the body corporate concerned, in respect of that year or project, an amount equal to the amount referred to in section 41‑30 in respect of that grant.

41‑40 Rollover of grant amounts

(1) If:

(a) a body to which a grant under this Part has been made in respect of a year fails to spend an amount of that grant; and

(b) the *Secretary determines in writing that this section is to apply to the body in respect of that grant;

then so much of the unspent amount as the Secretary specifies is taken to be granted to the body under this Part in respect of the next following year.

(2) The amount is taken to be granted for the same purpose as the original grant.

(3) The grant is taken to be made:

(a) under the same conditions as the conditions of the original grant—except the grant is taken to be made in respect of the next following year; or

(b) under such other conditions as are determined by the *Secretary.

41‑45 Maximum payments for other grants under this Part

(1) The total payments made under this Part in respect of a year referred to in the table must not exceed the amount specified next to that year in the table.

Maximum payments for other grants under this Part
Item	Year	Amount
1	2005	$1,539,636,000
2	2006	$1,716,942,000
3	2007	$1,768,622,000
4	2008	$1,912,350,000
5	2009	$1,883,928,000
6	2010	$1,874,910,000
7	2011	$2,032,393,000
8	2012	$2,114,960,000
9	2013	(a) if paragraph (b) does not apply—$2,274,359,000; or (b) if the Minister determines an amount under subsection (1A) in respect of 2013—that amount
10	2014	(a) if paragraph (b) does not apply—$2,225,794,000; or (b) if the Minister determines an amount under subsection (1A) in respect of 2014—that amount
11	2015	(a) if paragraph (b) does not apply—$2,231,354,000; or (b) if the Minister determines an amount under subsection (1A) in respect of 2015—that amount
12	2016	(a) if paragraph (b) does not apply—$2,219,169,000; or (b) if the Minister determines an amount under subsection (1A) in respect of 2016—that amount
13	2017 and each later year	The amount determined by the Minister under subsection (1B) in respect of that year

(1A) The Minister may, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2013 but before 1 January 2017.

(1B) The Minister must, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2017.

(1C) A determination under subsection (1B) for a year must be made before the start of that year.

(1D) The Minister may, in writing, vary a determination under subsection (1A) or (1B) for a year at any time before the end of that year.

(2) Payments made in respect of a project in a year are taken, for the purposes of subsection (1) to have been made in respect of that year.

41‑50 List of maximum grant amounts

(1) Before the start of a year, the Minister must, by legislative instrument, cause a list to be prepared setting out the maximum amounts of all grants which may be paid in the following year for each purpose of grant specified in the table in section 41‑10.

(2) The Minister may, in writing, vary a list for a year at any time before the end of that year.

41‑95 Alternative constitutional bases

(1) In addition to the effect that it has apart from this section, this Part has the effect it would have if each reference in this Part to a grant were expressly confined to a grant:

(a) to a corporation to which paragraph 51(xx) of the Constitution applies for the purposes of carrying out the corporation’s activities; or

(b) for one or more of the following purposes (as well as for a purpose described in section 41‑10):

(i) a purpose related to trade or commerce with another country, among the States, between a State and a Territory, between 2 Territories or within a Territory;

(ii) a purpose involving the use of postal, telegraphic, telephonic, and other like services;

(iii) a purpose relating to astronomical or meteorological observations;

(iv) a purpose relating to census or statistics;

(v) a purpose relating to aliens;

(vi) a purpose relating to old‑age pensions;

(vii) a purpose relating to the provision of benefits to students or sickness benefits;

(viii) a purpose relating to Aboriginal or Torres Strait Islander people;

(ix) a purpose relating to external affairs;

(x) a purpose relating to the executive power of the Commonwealth;

(xi) a purpose relating to a matter that is peculiarly adapted to the government of a nation and that cannot otherwise be carried on for the benefit of the nation; or

(2) A term used in this section and the Constitution has the same meaning in this section as it has in the Constitution.

Part 2‑4—Commonwealth scholarships

Division 46—Commonwealth scholarships

46‑1 What this Part is about

Grants for scholarships are made to higher education providers who pay the scholarships to students for the purposes of the students’ education.

Certain scholarships may be paid directly to students.

Note: This Part does not apply to Table C providers: see section 5‑1.

46‑5 The Commonwealth Scholarships Guidelines

*Commonwealth scholarships are also dealt with in the Commonwealth Scholarships Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The Commonwealth Scholarships Guidelines are made by the Minister under section 238‑10.

46‑10 Classes of Commonwealth scholarships

There are 3 classes of *Commonwealth scholarships:

(a) directly‑paid standard scholarships; and

(aa) indirectly‑paid standard scholarships; and

(b) postgraduate research scholarships.

Note: The Commonwealth Scholarships Guidelines set out the kinds of scholarships in each class.

46‑13 Eligibility of students to receive directly‑paid standard Commonwealth scholarships

If:

(a) the Commonwealth Scholarships Guidelines provide for a particular kind of directly‑paid standard *Commonwealth scholarship; and

(b) those guidelines set out eligibility requirements for that kind of scholarship; and

(i) a *Table A provider; or

(ii) a higher education provider to which subparagraph 30‑1(1)(b)(i) applies;

satisfies those eligibility requirements; and

(d) the student is selected by the provider to receive that kind of scholarship; and

(e) the selection is in accordance with a selection policy maintained by that provider; and

(f) the selection policy complies with the requirements set out in the Commonwealth Scholarships Guidelines;

the student is entitled to receive from the Commonwealth that kind of directly‑paid standard Commonwealth scholarship.

46‑15 Eligibility of higher education providers to receive grants for certain Commonwealth scholarships

(1) *Table A providers, and higher education providers to which subparagraph 30‑1(1)(b)(i) applies, are eligible to receive a grant from the Commonwealth to pay, as a benefit to students, indirectly‑paid standard *Commonwealth scholarships to their students.

(2) *Table A providers and *Table B providers are eligible to receive a grant from the Commonwealth to pay, as a benefit to students, postgraduate research *Commonwealth scholarships to their students.

(3) A provider that is eligible to receive a grant under subsection (1) or (2) is an eligible scholarship provider.

46‑20 Other matters relating to Commonwealth scholarships

(1) The Commonwealth Scholarships Guidelines may provide for *Commonwealth scholarships.

Directly‑paid standard Commonwealth scholarships

(1A) Without limiting subsection (1), the Commonwealth Scholarships Guidelines may provide for the following matters in relation to directly‑paid standard *Commonwealth scholarships:

(a) the kinds of scholarships that are to be directly‑paid standard Commonwealth scholarships;

(b) the eligibility requirements for each kind of scholarship;

(d) the indexation of amounts of scholarships, using the method of indexation set out in Part 5‑6;

(e) how scholarships are to be paid;

(f) the conditions that apply to a particular kind of scholarship;

(g) the amount, being part of the amount referred to in section 46‑40 for a year, that will be spent on each kind of scholarship in that year;

(h) the indexation of such an amount for subsequent years, using the method of indexation set out in Part 5‑6;

(i) the maximum number of students that a particular higher education provider can select to receive a particular kind of scholarship for a particular year;

(j) requirements to be complied with by selection policies maintained by higher education providers;

(k) information that higher education providers are to give the Minister.

Other Commonwealth scholarships

(2) Without limiting subsection (1), the Commonwealth Scholarships Guidelines may provide for the following matters in relation to indirectly‑paid standard *Commonwealth scholarships and postgraduate research Commonwealth scholarships:

(a) the kinds of scholarships that are to be indirectly‑paid standard Commonwealth scholarships;

(b) the kinds of scholarships that are to be postgraduate research Commonwealth scholarships;

(e) the conditions that apply to each kind of scholarship;

(f) how the amounts of grants to an *eligible scholarship provider are to be determined;

(g) the amount, being part of the amount referred to in section 46‑40 for a year, that will be spent on each kind of scholarship in that year;

(h) the indexation of such an amount for subsequent years, using the method of indexation set out in Part 5‑6;

(i) how grants to providers are to be made;

(j) how providers are to determine the amount of each scholarship;

(k) the indexation of amounts of scholarships, using the method of indexation set out in Part 5‑6;

(l) how providers are to pay scholarships;

(m) information that providers are to give the Minister, the *Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997);

(n) information that providers are to give to:

(i) the Repatriation Commission; or

(ii) the Military Rehabilitation and Compensation Commission; or

(iii) the Secretary, or an employee, of the Department administered by the Minister who administers the Veterans’ Entitlements Act 1986; or

(iv) the Secretary, or an employee, of the Department administered by the Minister who administers the Military Rehabilitation and Compensation Act 2004.

46‑25 Condition of grants

It is a condition of a grant to a higher education provider under this Part that the higher education provider to whom the grant is payable must meet the *quality and accountability requirements.

46‑30 Amounts payable under this Part

The amount that is payable under this Part to an *eligible scholarship provider is the amount worked out in accordance with the Commonwealth Scholarships Guidelines.

46‑35 Rollover of grant amounts

(1) If:

(a) a higher education provider to which a grant under this Part has been made fails to spend an amount of that grant; and

(b) the *Secretary determines in writing that this section is to apply to the provider in respect of that grant;

then so much of the unspent amount as the Secretary specifies is taken to be granted to the provider under this Part in respect of the next following year.

(2) The amount is taken to be granted:

(a) under the same conditions as the conditions of the original grant—except the grant is taken to be made in respect of the next following year; or

(b) under such other conditions as are determined by the *Secretary.

46‑40 Maximum payments for Commonwealth scholarships

(1) The total payments made under this Part in respect of a year referred to in the table must not exceed the amount specified next to that year in the table.

Maximum payments for Commonwealth Scholarships
Item	Year	Amount
1	2004	$124,212,000
2	2005	$151,452,000
3	2006	$179,733,000
4	2007	$209,569,000
5	2008	$239,305,000
6	2009	$290,104,000
7	2010	$304,553,000
8	2011	$316,212,000
9	2012	$319,056,000
10	2013	(a) if paragraph (b) does not apply—$300,217,000; or (b) if the Minister determines an amount under subsection (2) in respect of 2013—that amount
11	2014	(a) if paragraph (b) does not apply—$305,166,000; or (b) if the Minister determines an amount under subsection (2) in respect of 2014—that amount
12	2015	(a) if paragraph (b) does not apply—$307,456,000; or (b) if the Minister determines an amount under subsection (2) in respect of 2015—that amount
13	2016	(a) if paragraph (b) does not apply—$307,329,000; or (b) if the Minister determines an amount under subsection (2) in respect of 2016—that amount
14	2017 and each later year	The amount determined by the Minister under subsection (3) in respect of that year

(2) The Minister may, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2013 but before 1 January 2017.

(3) The Minister must, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2017.

(4) A determination under subsection (3) for a year must be made before the start of that year.

(5) The Minister may, in writing, vary a determination under subsection (2) or (3) for a year at any time before the end of that year.

Part 2‑5—Reduction and repayment of grants

Division 51—Introduction

51‑1 What this Part is about

Bodies may have their grants reduced, or be required to repay a grant, for breaches of conditions of grants under Part 2‑2, 2‑2A, 2‑3 or 2‑4.

Note: This Part does not apply to Table C providers: see section 5‑1.

51‑5 The Reduction and Repayment Guidelines

Reduction and repayment of grants is also dealt with in the Reduction and Repayment Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The Reduction and Repayment Guidelines are made by the Minister under section 238‑10.

Division 54—In what circumstances may a grant be reduced or required to be repaid?

54‑1 Decision as to reduction or repayment of a grant

(1) The Minister may determine:

(a) that an amount of a grant made, or to be made, to a body under Part 2‑2, 2‑2A, 2‑3 or 2‑4 is to be reduced; or

(b) that an amount of a grant made to a body under Part 2‑2, 2‑2A, 2‑3 or 2‑4 is to be repaid to the Commonwealth.

(2) The Minister may make a determination under subsection (1) if:

(a) the body breaches a condition of a grant made to the body under Part 2‑2, 2‑2A, 2‑3 or 2‑4, whether or not that grant is the grant to be reduced or repaid; and

(b) the Minister is satisfied that it is appropriate to take that action (see section 54‑5); and

54‑5 Appropriateness of requiring reduction or repayment of grant

Without limiting the matters that the Minister may consider in deciding whether it is appropriate under subsection 54‑1(1) to take particular action, the Minister may consider any or all of the following matters:

(a) whether the breach is of a minor or major nature;

(b) whether the breach has occurred before and, if so, how often;

(ba) if the breach is a breach of a condition imposed under section 19‑37—the amount of any adjustment under section 33‑37 in relation to that breach, or any other breach by the body, during the same year;

(d) if the body is a higher education provider—the impact of the breach on the higher education provided by the body;

(e) the impact of the breach on Australia’s reputation as a provider of high quality higher education;

(f) any other matter set out in the Reduction and Repayment Guidelines.

Division 57—What is the amount of a reduction or repayment?

57‑1 Reduction in amount of grants

(1) If an amount of a grant is to be reduced under this Part, it must be reduced by an amount determined by the Minister in writing.

(2) The Reduction and Repayment Guidelines may set out requirements about how such an amount is to be determined. The Minister must make his or her determination in accordance with any such requirements.

57‑5 Amount of the repayment

(1) If an amount of a grant is to be repaid under this Part, the amount to be repaid is the amount that the Minister determines in writing.

(2) The amount to be repaid must not exceed the amount of the grant.

(3) The Reduction and Repayment Guidelines may set out requirements about how such an amount is to be determined. The Minister must make his or her determination in accordance with any such requirements.

(4) The amount to be repaid is a debt owed to the Commonwealth by the body to which the grant was paid.

Division 60—How are decisions reducing a grant or requiring repayment of a grant made?

60‑1 Procedure prior to decision

(1) Before making a decision under paragraph 54‑1(a) or (b) in respect of a body, the Minister must give to the body notice in writing:

(a) stating that the Minister is considering reducing the body’s grant, or requiring the repayment of a grant made to the body, as the case may be; and

(b) stating the amount of the proposed reduction or repayment and the reasons why the Minister is considering taking that action; and

(c) inviting the body to make written submissions to the Minister within 28 days on either or both of the following matters:

(i) why that action should not be taken;

(ii) why the amount of the proposed reduction or repayment should be reduced; and

(d) informing the body that, if no submission is received under paragraph (c) within the time required, the action will take effect on the day after the last day for making submissions.

(2) In deciding whether to take the action, the Minister must consider any submissions received from the body within the 28 day period.

60‑5 Notification of decision

(1) The Minister must notify the body in writing of his or her decision on whether or not to take the action. The notice:

(a) must be in writing; and

(b) if a submission was received from the body within the 28 day period—must specify the day that the decision is to take effect; and

(c) must be given within the period of 28 days following the period in which submissions may have been given to the Minister under subsection 60‑1(1).

(2) If no notice is given within the period provided for in paragraph (1)(c), the Minister is taken to have decided not to take the action.

60‑10 When a decision takes effect

If the Minister’s decision is to take the action, the decision takes effect:

(a) if no submission was made under subsection 60‑1(1)—on the day after the last day for making submissions; or

(b) if such a submission was made—on the day specified in the notice under subsection 60‑5(1).

Chapter 3—Assistance to students

Division 65—Introduction

65‑1 What this Chapter is about

This Chapter provides for 4 kinds of assistance that the Commonwealth provides to students.

Note: The Commonwealth meets all or part of the higher education costs of students who are enrolled in places funded under Part 2‑2.

The 4 kinds of assistance available under this Chapter are:

• HECS‑HELP assistance—assistance to meet a student’s liability to pay student contribution amounts for units of study that are Commonwealth supported (see Part 3‑2);

• FEE‑HELP assistance—assistance to meet a student’s liability to pay tuition fees for units of study that are not Commonwealth supported (see Part 3‑3);

• OS‑HELP assistance—assistance to a student who, as part of his or her course of study, is to undertake study overseas (see Part 3‑4);

• SA‑HELP assistance—assistance to a student on whom a student services and amenities fee is imposed (see Part 3‑5).

The Commonwealth pays the assistance to the relevant higher education provider either (in the case of HECS‑HELP assistance, FEE‑HELP assistance and SA‑HELP assistance) to discharge the student’s liability, or (in the case of OS‑HELP assistance) to pay to students on the Commonwealth’s behalf.

The assistance is (in most cases) in the form of a loan from the Commonwealth to the student.

Note: Chapter 4 deals with the repayment of loans made under this Chapter.

Part 3‑2—HECS‑HELP assistance

Division 87—Introduction

87‑1 What this Part is about

A student may be entitled to HECS‑HELP assistance for units of study for which he or she is Commonwealth supported, if certain requirements are met.

The amount of assistance to which the student may be entitled is based on his or her student contribution amounts for the units, less any up‑front payments. The assistance is paid to a higher education provider to discharge the student’s liability to pay his or her student contribution amounts.

Note 1: Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

Note 2: This Part does not apply to Table C providers: see section 5‑1.

87‑5 The HECS‑HELP Guidelines

*HECS‑HELP assistance is also dealt with in the HECS‑HELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note 1: The HECS‑HELP Guidelines are made by the Minister under section 238‑10.

Note 2: Matters arising under section 93‑10 may be dealt with in the Commonwealth Grant Scheme Guidelines.

Division 90—Who is entitled to HECS‑HELP assistance?

90‑1 Entitlement to HECS‑HELP assistance

Subject to section 90‑10, a student is entitled to *HECS‑HELP assistance for a unit of study in which the student is enrolled with a higher education provider as part of a *course of study if:

(aa) the course of study is an *accredited course in relation to the provider; and

(a) the student meets the citizenship or residency requirements under section 90‑5; and

(b) the *census date for the unit is on or after 1 January 2005; and

(e) the student:

(i) enrolled in the unit on or before the census date for the unit; and

(ii) at the end of the census date, remained so enrolled; and

(f) the student *meets the tax file number requirements (see section 187‑1); and

(g) the student has, on or before the census date, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance in relation to the unit or, where the course of study of which the unit forms a part is undertaken with the provider, in relation to the course of study.

90‑5 Citizenship or residency requirements

(1) A student meets the citizenship or residency requirements under this section in relation to a unit of study if the student is:

(a) an Australian citizen; or

(b) a *permanent humanitarian visa holder who will be resident in Australia for the duration of the unit.

(2) In determining, for the purpose of paragraph (1)(b), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:

(a) cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of that unit; or

(b) is required for the purpose of completing a requirement of that unit.

(2A) A student also meets the citizenship or residency requirements under this section in relation to a unit of study if the student:

(a) is a New Zealand citizen; and

(b) holds a special category visa under the Migration Act 1958; and

(i) first began to be usually resident in Australia at least 10 years before the day referred to in subsection (2B) (the test day); and

(ii) was a *dependent child when he or she first began to be usually resident in Australia; and

(d) has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and

(e) has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.

(2B) For the purposes of subsection (2A), the day is the earlier of:

(a) if the student has previously made a successful *request for Commonwealth assistance under this Chapter for a unit that formed part of the same *course of study—the day the student first made such a request; or

(b) otherwise—the day the student made the request for Commonwealth assistance in relation to the unit.

(3) Despite subsections (1), (2) and (2A), a student does not meet the citizenship or residency requirements in relation to a unit of study if the provider reasonably expects that the student will not undertake in Australia any units of study contributing to the *course of study of which the unit forms a part.

90‑10 Students not entitled to HECS‑HELP assistance

A student is not entitled to *HECS‑HELP assistance for a unit of study if:

(a) the unit forms a part of a *course of study; and

(b) the course of study is, or is to be, undertaken by the student primarily at an overseas campus.

Division 93—How are amounts of HECS‑HELP assistance worked out?

93‑1 The amount of HECS‑HELP assistance for a unit of study

The amount of *HECS‑HELP assistance to which a student is entitled for a unit of study is the difference between:

(a) his or her *student contribution amount for the unit; and

(b) the sum of any *up‑front payments made in relation to the unit.

93‑5 Student contribution amounts

(1) A person’s student contribution amount for a unit of study is the amount worked out as follows:

where the person’s student contribution amount for a place in the unit is:

(a) if only one student contribution amount has been determined for places in the unit under subsection 19‑87(2)—that student contribution amount; or

(b) if more than one student contribution amount has been determined for places in the unit under that subsection—the student contribution amount determined under that subsection that applies to the person.

(2) A person’s *student contribution amount for a place in a unit must not exceed the *maximum student contribution amount for a place in the unit.

(3) A person’s student contribution amount for a unit of study is nil if the person undertakes the unit as part of an *enabling course. This subsection has effect despite subsection (1).

(4) If an amount worked out by using the formula in subsection (1) is an amount made up of dollars and cents, round the amount down to the nearest dollar.

93‑10 Maximum student contribution amounts for places

(1) The maximum student contribution amount for a place in a unit of study is the amount specified in the following table in relation to the funding cluster in which the unit is included.

Maximum student contribution amounts for places
Item	Column 1 For a place in a unit in this funding cluster:	Column 2 The maximum student contribution is:
1	Law, Accounting, Administration, Economics, Commerce	$8,859
2	Humanities	$5,310
3	Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health	(a) for a place in a unit in Mathematics, Statistics, Computing, Built Environment or Other Health—$7,567; or (b) for a place in a unit in Behavioural Science or Social Studies—$5,310.
4	Education	$5,310
5	Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts	(a) for a place in a unit in Clinical Psychology, Foreign Languages or Visual and Performing Arts—$5,310; or (b) for a place in a unit in Allied Health—$7,567.
6	Nursing	$5,310
7	Engineering, Science, Surveying	for a place in a unit in Engineering, Science or Surveying—$7,567.
8	Dentistry, Medicine, Veterinary Science, Agriculture	(a) for a place in a unit in Dentistry, Medicine or Veterinary Science—$8,859; or (b) for a place in a unit in Agriculture—$7,567.

Note 1: Commonwealth Grant Scheme Guidelines made for the purposes of section 33‑35 and this section deal with the funding clusters in which particular units of study are included and whether particular units are units in a particular part of a funding cluster.

Note 2: Maximum student contribution amounts for places are indexed under Part 5‑6.

(2) The Commonwealth Grant Scheme Guidelines may specify, for the purposes of column 2 of the table in subsection (1):

(a) how to determine whether a particular unit is a unit in a particular part of a *funding cluster; or

(b) that a particular unit is in a particular part of a funding cluster.

93‑15 Up‑front payments

(1) An up‑front payment, in relation to a unit of study for which a person is liable to pay his or her *student contribution amount, is a payment of all or part of the student’s student contribution amount for the unit, other than a payment of *HECS‑HELP assistance under this Part.

(2) The payment must be made on or before the *census date for the unit.

Division 96—How are amounts of HECS‑HELP assistance paid?

Note: Part 5‑1 deals generally with payments by the Commonwealth under this Act.

96‑1 Payments to higher education providers

If a student is entitled to an amount of *HECS‑HELP assistance for a unit of study with a higher education provider, the Commonwealth must:

(a) as a benefit to the student, lend to the student the amount of HECS‑HELP assistance; and

(b) pay to the provider the amount lent in discharge of the student’s liability to pay his or her *student contribution amount for the unit.

Part 3‑3—FEE‑HELP assistance

Division 101—Introduction

101‑1 What this Part is about

A student may be entitled to FEE‑HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met.

The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider or, if the student accesses units through Open Universities Australia, that body, to discharge the student’s liability to pay his or her tuition fees.

Note: Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

101‑5 The FEE‑HELP Guidelines

*FEE‑HELP assistance is also dealt with in the FEE‑HELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The FEE‑HELP Guidelines are made by the Minister under section 238‑10.

Division 104—Who is entitled to FEE‑HELP assistance?

Subdivision 104‑A—Basic rules

104‑1 Entitlement to FEE‑HELP assistance

(1) Subject to this section and sections 104‑1A, 104‑2, 104‑3 and 104‑4, a student is entitled to *FEE‑HELP assistance for a unit of study if:

(a) the student meets the citizenship or residency requirements under section 104‑5; and

(ab) the student is a *genuine student; and

(ac) the student has been assessed by the higher education provider as academically suited to undertake the unit concerned; and

(b) the student’s *FEE‑HELP balance is greater than zero; and

(d) the student is not a *Commonwealth supported student in relation to the unit; and

(e) the unit meets the course requirements under section 104‑10; and

(f) the unit:

(i) is, or is to be, undertaken as part of a *course of study; or

(ii) is a unit access to which was provided by *Open Universities Australia; or

(iii) is part of a *bridging course for overseas‑trained professionals; and

(g) the student:

(i) enrolled in the unit on or before the census date for the unit; and

(ii) at the end of the census date, remained so enrolled; and

(h) the student *meets the tax file number requirements (see section 187‑1); and

(i) the student has, on or before the census date:

(i) if access to the unit was provided by Open Universities Australia—completed, signed and given to an *appropriate officer of Open Universities Australia a *request for Commonwealth assistance in relation to the unit; or

(ii) in any other case—completed, signed and given to an appropriate officer of the higher education provider a request for Commonwealth assistance in relation to the unit or, where the course of study of which the unit forms a part is, or is to be, undertaken with the provider, in relation to the course of study.

(1A) In determining whether a student is a *genuine student, regard may be had to the matters (if any) specified in the Higher Education Provider Guidelines.

(1B) The assessment for the purposes of paragraph (1)(ac) must be done in accordance with any requirements specified in the Higher Education Provider Guidelines made for the purposes of section 19‑42.

(2) A student is not entitled to *FEE‑HELP assistance for a unit of study if:

(a) the unit forms a part of a *course of study; and

(b) the course of study is, or is to be, undertaken by the student primarily at an overseas campus.

(3) A student is not entitled to *FEE‑HELP assistance for a unit of study provided, or to be provided, by a higher education provider if:

(a) a limit on the total number of students entitled to FEE‑HELP assistance, or on the total amount of FEE‑HELP assistance payable to the provider, applies to the provider; and

(b) provision of FEE‑HELP assistance to the student would exceed that limit.

(4) A student is not entitled to *FEE‑HELP assistance for a unit of study with a higher education provider if the higher education provider completes any part of the *request for Commonwealth assistance in relation to the unit that the student is required to complete.

104‑1A Failure by a student to complete previous units with provider

(1) A student is not entitled to *FEE‑HELP assistance for a unit of study provided, or to be provided, by a higher education provider if:

(a) in a case where the unit of study is part of a course leading to the award of a bachelor degree or higher qualification:

(i) the student has already undertaken 8 or more other units of study at that provider as part of that course of study; and

(ii) the student did not successfully complete at least 50% of those other units; or

(b) in any other case:

(i) the student has already undertaken 4 or more other units of study at that provider as part of a course of study; and

(ii) the student did not successfully complete at least 50% of those other units.

(2) This section does not apply if:

(a) the student applies in writing to the provider for an exemption from subsection (1); and

(b) the higher education provider is satisfied that special circumstances apply to the student (see section 104‑30).

104‑2 Failure by a student to complete previous units accessed through Open Universities Australia

A student is not entitled to *FEE‑HELP assistance for a unit of study access to which is provided by *Open Universities Australia if:

(a) the student has already undertaken 8 or more other units of study, access to which was provided by Open Universities Australia; and

(b) the student did not successfully complete at least 50% of those other units.

104‑3 Failure by Open Universities Australia to comply with FEE‑HELP Guidelines etc.

(1) The Minister may determine, by legislative instrument, that there is to be no entitlement to *FEE‑HELP assistance for a specified year for units of study to which access is provided by *Open Universities Australia, if the Minister is satisfied that Open Universities Australia has, during the 2 years immediately preceding the specified year, failed to comply with the FEE‑HELP Guidelines or with subsection (5).

(2) Without limiting the generality of what may be included in the FEE‑HELP Guidelines, they may include any or all of the following:

(a) requirements relating to the financial viability of *Open Universities Australia;

(b) requirements relating to the quality of tuition accessed through Open Universities Australia;

(c) requirements relating to fairness in the treatment of persons accessing, or seeking to access, tuition through Open Universities Australia;

(d) requirements relating to compliance with this Act, the regulations and other Guidelines made under this Act;

(e) requirements relating to *tuition fees for units of study accessed through Open Universities Australia;

(f) requirements relating to the provision of information to the Commonwealth by Open Universities Australia that is relevant in any way to the provision of *FEE‑HELP assistance to students accessing units of study through Open Universities Australia, or the repayment of the *HELP debts of those students;

(g) administrative requirements of the kinds imposed on higher education providers under Parts 5.2 and 5.3 of this Act.

(3) A student is not entitled to *FEE‑HELP assistance for a unit of study if:

(a) access to the unit is provided by *Open Universities Australia; and

(b) the Minister has made a determination under subsection (1) in relation to the year during which the unit is accessed; and

(5) *Open Universities Australia must comply with section 19‑37 as if it were a higher education provider.

104‑4 Failure by Open Universities Australia to set tuition fees and census date

(1) This section applies to a unit of study access to which is provided by *Open Universities Australia during a period ascertained in accordance with the FEE‑HELP Guidelines.

(2) *Open Universities Australia must determine, for the unit, one or more *fees that are to apply to students to whom Open Universities Australia provides access to the unit during the period.

(2AA) In determining more than one *fee under subsection (2), *Open Universities Australia may have regard to any matters Open Universities Australia considers appropriate, other than matters specified in the FEE‑HELP Guidelines as matters to which Open Universities Australia must not have regard.

(2A) *Open Universities Australia must not vary a *fee unless Open Universities Australia:

(a) does so:

(i) before the date ascertained in accordance with the FEE‑HELP Guidelines; and

(ii) in circumstances specified in the FEE‑HELP Guidelines; or

(b) does so with the written approval of the Minister.

(3) A fee includes any tuition, examination or other fee payable to *Open Universities Australia by those students in relation to the unit.

(4) A fee does not include a fee:

(a) payable in respect of an organisation of students, or of students and other persons; or

(b) payable in respect of the provision to students of amenities or services that are not of an academic nature; or

Census date

(5) *Open Universities Australia must set a particular date to be the *census date for the unit for the period.

(5A) *Open Universities Australia must not vary a *census date unless Open Universities Australia:

(a) does so:

(i) before the date ascertained in accordance with the FEE‑HELP Guidelines; and

(ii) in circumstances specified in the FEE‑HELP Guidelines; or

(b) does so with the written approval of the Minister.

Consequence of failure to set tuition fees and census date

(6) If *Open Universities Australia does not:

(a) determine a *fee in accordance with subsection (2) for the unit for the period; or

(b) determine a *census date in accordance with subsection (5) for the unit for the period;

no student to whom Open Universities Australia provides access to the unit for that period is entitled to *FEE‑HELP assistance for the unit.

104‑5 Citizenship or residency requirements

(1) A student meets the citizenship or residency requirements under this section in relation to a unit of study if the student is:

(a) an Australian citizen; or

(b) a *permanent humanitarian visa holder who will be resident in Australia for the duration of the unit; or

(c) 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.

(2) In determining, for the purpose of paragraph (1)(b) or (c), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:

(a) cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit; or

(b) is required for the purpose of completing a requirement of that unit.

(2A) A student also meets the citizenship or residency requirements under this section in relation to a unit of study if the student:

(a) is a New Zealand citizen; and

(b) holds a special category visa under the Migration Act 1958; and

(i) first began to be usually resident in Australia at least 10 years before the day referred to in subsection (2B) (the test day); and

(ii) was a *dependent child when he or she first began to be usually resident in Australia; and

(d) has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and

(e) has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.

(2B) For the purposes of subsection (2A), the day is the earlier of:

(b) otherwise—the day the student made the request for Commonwealth assistance in relation to the unit.

(4) Despite subsections (1), (2) and (2A), a student does not meet the citizenship or residency requirements in relation to a unit of study to which access was provided by *Open Universities Australia if the student was not resident in Australia on the day the student gave the *request for Commonwealth assistance in relation to the unit as referred to in subparagraph 104‑1(1)(i)(i).

104‑10 Course requirements

(1) The course requirements for *FEE‑HELP assistance for a unit of study are that:

(a) if the unit is being undertaken as part of a *course of study, the course is not a course that:

(i) is subject to a determination under subsection (2); or

(ii) is with a higher education provider that is subject to a determination under subsection (2); and

(b) if the unit is being undertaken as part of a course of study with a higher education provider:

(i) the course of study is an *accredited course in relation to the provider; or

(ii) if the provider is a *self‑accrediting entity—the course of study is an *enabling course.

(2) The Minister may, by legislative instrument, determine that:

(a) a specified course provided by a specified higher education provider is a course in relation to which *FEE‑HELP assistance is unavailable; or

(b) all courses provided by a specified higher education provider are courses in relation to which FEE‑HELP assistance is unavailable.

(3) In deciding whether to make a determination under subsection (2), the Minister must have regard to the effect of the determination on students undertaking the course or courses.

Subdivision 104‑B—FEE‑HELP balances

104‑15 A person’s FEE‑HELP balance

(1) A person’s FEE‑HELP balance at a particular time is:

(a) if the *FEE‑HELP limit in relation to the person at the time exceeds the sum of all of the amounts of *FEE‑HELP assistance, *VET FEE‑HELP assistance and *VET student loans that have previously been payable to the person, being that sum as reduced by any amounts previously re‑credited under this Subdivision, Subdivision 7‑B of Schedule 1A or Part 6 of the VET Student Loans Act 2016—that excess; and

(b) otherwise—zero.

Note: If an amount is to be re‑credited to a FEE‑HELP balance, the balance that is to be re‑credited is worked out immediately before that re‑crediting. The balance is worked out after the re‑crediting by taking account of the amount re‑credited. If a person’s FEE‑HELP limit has been reduced, the balance might not increase, or might not increase by the same amount as the amount re‑credited.

(2) To avoid doubt, the sum referred to in paragraph (1)(a) includes amounts of *FEE‑HELP assistance, *VET FEE‑HELP assistance and *VET student loans that have been repaid.

104‑20 The FEE‑HELP limit

The FEE‑HELP limit is:

(a) $80,000; or

(b) in relation to a person who is enrolled in a *course of study in medicine, a *course of study in dentistry or a *course of study in veterinary science, while the person is enrolled in that course—$100,000.

Note: The FEE‑HELP limit is indexed under Part 5‑6.

104‑25 Main case of re‑crediting a person’s FEE‑HELP balance

(1A) If section 104‑42 applies to re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person has received for a unit of study, then this section does not apply in relation to that unit.

(a) the person has been enrolled in the unit with the provider; and

(aa) access to the unit was not provided by *Open Universities Australia; and

(b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit; and

(d) the person applies in writing to the provider for re‑crediting of the FEE‑HELP balance; and

(e) either:

(i) the application is made before the end of the application period under section 104‑35; or

(2) *Open Universities Australia must, on the *Secretary’s behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person has received for a unit of study if:

(a) access to the unit was provided by Open Universities Australia; and

(b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and

(d) the person applies in writing to Open Universities Australia for re‑crediting of the FEE‑HELP balance; and

(e) either:

(i) the application is made before the end of the application period under section 104‑35; or

(ii) Open Universities Australia waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.

Note: A FEE‑HELP debt relating to a unit of study will be remitted if the FEE‑HELP balance in relation to the unit is re‑credited: see section 137‑10.

(3) If the provider is unable to act for one or more of the purposes of subsection (1) or (2), or section 104‑30, 104‑35 or 104‑40, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.

104‑27 Re‑crediting a person’s FEE‑HELP balance—no tax file number

(a) the person has been enrolled in the unit with the provider; and

(b) subsection 193‑10(1) applies to the person in relation to the unit.

Note: A FEE‑HELP debt relating to a unit of study will be remitted if the FEE‑HELP balance in relation to the unit is re‑credited: see section 137‑10.

(3) The *Secretary may re‑credit the person’s *FEE‑HELP balance under subsection (1) or (2) if the provider or *Open Universities Australia is unable to do so.

104‑30 Special circumstances

(1) For the purposes of paragraphs 104‑1A(2)(b) and 104‑25(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:

(a) are beyond the person’s control; and

(b) do not make their full impact on the person until on or after the *census date for the unit of study in question; and

(c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake the unit.

(2) If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36‑21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.

Note: The matters referred to in paragraphs 36‑21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS‑HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.

(3) For the purposes of paragraph 104‑25(2)(c), special circumstances apply to the person if and only if *Open Universities Australia is satisfied that circumstances apply to the person that:

(a) are beyond the person’s control; and

(b) do not make their full impact on the person until on or after the *census date for the unit of study in question; and

(c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.

104‑35 Application period

(1) If:

(a) the person applying under 104‑25(1)(d) for the re‑crediting of the person’s *FEE‑HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; and

(b) the higher education provider gives notice to the person that the withdrawal has taken effect;

the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

(1A) If:

(a) the person applying under paragraph 104‑25(2)(d) for the re‑crediting of the person’s *FEE‑HELP balance in relation to a unit of study has withdrawn from the unit; and

(b) *Open Universities Australia gives notice to the person that the withdrawal has taken effect;

the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

(2) If subsections (1) and (1A) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.

104‑40 Dealing with applications

(1) If:

(a) the application is made under paragraph 104‑25(1)(d) before the end of the relevant application period; or

the provider must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision on the application.

(1A) If:

(a) the application is made under paragraph 104‑25(2)(d) before the end of the relevant application period; or

(b) *Open Universities Australia waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period;

Open Universities Australia must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision of the application.

(2) The notice must include a statement of the reasons for the decision.

Note: Refusals of applications are reviewable under Part 5‑7.

104‑42 Re‑crediting a person’s FEE‑HELP balance if provider ceases to provide course of which unit forms part

(a) the person has been enrolled in the unit with the provider; and

(b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and

(d) the person chose the option designated under the tuition assurance requirements as student contribution/tuition fee repayment in relation to the unit.

Note: A FEE‑HELP debt relating to a unit of study will be remitted if the FEE‑HELP balance in relation to the unit is re‑credited: see subsection 137‑10(4).

(2) The *Secretary may re‑credit the person’s *FEE‑HELP balance under subsection (1) if the provider is unable to do so.

104‑43 Re‑crediting a person’s FEE‑HELP balance if not a genuine student

(a) the person has been enrolled in the unit with the provider; and

(b) the Secretary is satisfied that the person is not a *genuine student.

Note: A FEE‑HELP debt relating to a unit of study will be remitted if the FEE‑HELP balance in relation to the unit is re‑credited: see subsection 137‑10(4).

(2) The *Secretary may re‑credit the person’s *FEE‑HELP balance under subsection (1) if the provider is unable to do so.

104‑44 Re‑crediting a person’s FEE‑HELP balance if provider completes request for assistance etc.

(1) A higher education provider must, on the *Secretary’s behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person received for a unit of study if the higher education provider completes any part of the *request for Commonwealth assistance in relation to the unit that the student is required to complete.

Note: A FEE‑HELP debt relating to a unit of study will be remitted if the FEE‑HELP balance in relation to the unit is re‑credited under this section: see subsection 137‑10(4).

(2) A higher education provider must, on the *Secretary’s behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person received for a unit of study if the Secretary is satisfied that the student was not entitled to receive FEE‑HELP assistance for the unit of study with the higher education provider.

(3) A higher education provider must, on the *Secretary’s behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person received for a unit of study if the student has not has been assessed by the higher education provider as academically suited to undertake the unit concerned.

(4) The *Secretary may re‑credit the person’s *FEE‑HELP balance under this section if the provider is unable to do so.

Subdivision 104‑C—Bridging courses for overseas‑trained professionals

104‑45 Meaning of bridging course for overseas‑trained professionals

Courses consisting of subjects or units

(1) One or more subjects or units in which a person is enrolled with a higher education provider, or to which access is provided by *Open Universities Australia, are together a bridging course for overseas‑trained professionals if:

(a) the person holds an *assessment statement issued by an *assessing body for a *listed professional occupation; and

(b) the statement is to the effect that, in the body’s opinion, if the person were successfully to undertake additional studies of a kind specified in the statement, the person would meet the *requirements for entry to that occupation; and

(i) enrolling, or proposing to enrol, on a *non‑award basis, in those subjects or units with the provider; or

(ii) accessing, or proposing to access, those subjects or units through Open Universities Australia; and

(d) the total student load imposed on the person in relation to those subjects or units does not exceed the student load that, in the opinion of the provider or Open Universities Australia, represents the load imposed on a full‑time student for one year; and

(e) those subjects or units relate to the assessment statement.

Courses consisting of occupation‑related courses of instruction

(2) One or more occupation‑related courses of instruction in which a person is enrolled with a higher education provider, or to which access is provided by *Open Universities Australia, are together a bridging course for overseas‑trained professionals if:

(a) the person holds an *assessment statement issued by an *assessing body for a *listed professional occupation; and

(b) the statement is to the effect that, in the body’s opinion, if the person were to be successful in one or more examinations specified in the statement, the person would meet the *requirements for entry to that occupation; and

(i) enrolling, or proposing to enrol, on a *non‑award basis, in those occupation‑related courses of instruction with the provider; or

(ii) accessing, or proposing to access, those occupation‑related courses of instruction through Open Universities Australia; and

(d) the total student load imposed on the person in relation to those courses does not exceed the student load that, in the opinion of the provider or Open Universities Australia, represents the load imposed on a full‑time student for one year; and

(e) those courses relate to the assessment statement.

Courses consisting of tuition and training programs

(3) A tuition and training program in which a person is enrolled with a higher education provider, or to which access is provided by *Open Universities Australia, is a bridging course for overseas‑trained professionals if:

(a) the person holds an *assessment statement issued by an *assessing body for a *listed professional occupation; and

(b) the statement is to the effect that, in the body’s opinion, if the person were to undertake a tuition and training program of a kind specified in the statement, the person would meet the *requirements for entry to that occupation; and

(i) enrolling, or proposing to enrol, on a *non‑award basis, in a tuition and training program with the provider; or

(ii) accessing, or proposing to access, a tuition and training program through Open Universities Australia; and

(d) the total student load imposed on the person in relation to that program does not exceed the student load that, in the opinion of the provider or Open Universities Australia, represents the load imposed on a full‑time student for one year; and

(e) that program relates to the assessment statement.

104‑50 Assessment statements

(1) An *assessing body for a *listed professional occupation may give to a person who:

(a) holds a qualification that:

(i) was awarded in a foreign country; and

(ii) relates to that occupation; and

(b) proposes to seek entry to that occupation:

(i) in Australia; or

(ii) if the assessing body is an *assessing body of a State or Territory—in that State or Territory;

a written statement to the effect that, in the body’s opinion, if the person were to do any or all of the things referred to in subsection (2), the person would meet the *requirements for entry to that occupation. The statement is an assessment statement.

(2) The statement may refer to any or all of the following:

(a) successfully undertaking additional studies of a kind specified in the statement;

(b) being successful in one or more examinations specified in the statement;

Note: A statement could specify one of the things mentioned in paragraph (a), (b) or (c) or any combination of the things mentioned in those paragraphs.

(3) This section does not affect the power of an *assessing body to charge fees for an *assessment statement under subsection (1).

104‑55 Meaning of assessing body

(1) An assessing body for a particular *listed professional occupation is a person or body specified in the FEE‑HELP Guidelines as an assessing body for that occupation.

(2) This section does not prevent 2 or more persons or bodies from being assessing bodies for the same *listed professional occupation.

(3) The FEE‑HELP Guidelines may limit the specification of a person or body as an assessing body for a particular *listed professional occupation to:

(a) a particular State; or

(b) the Australian Capital Territory; or

Such an assessing body is an assessing body of a State or Territory.

104‑60 Meaning of listed professional occupations

(1) A listed professional occupation is an *occupation specified in the FEE‑HELP Guidelines as a listed professional occupation.

(2) To avoid doubt, an *occupation may be specified even if it is not one of the traditional professions.

104‑65 Occupation includes part of an occupation

(1) An occupation includes a part of an occupation specified in the FEE‑HELP Guidelines as an occupation in its own right.

(2) The following are examples of ways in which a part of an occupation can be specified:

(a) so much of an occupation as has a bachelor degree (or equivalent) entry requirement;

(b) so much of an occupation as consists of a particular specialisation.

104‑70 Requirements for entry to an occupation

(1) The requirements for entry, to a *listed professional occupation, are the educational requirements:

(a) for entry to that occupation in Australia; or

(b) if the requirements are referred to in an *assessment statement given by an *assessing body of a State or Territory for that occupation—for entry to that occupation in that State or Territory.

(2) A requirement for entry to a *listed professional occupation may:

(a) be imposed by or under a law; or

(b) be imposed by or under the rules of a body; or

(d) arise as a generally accepted employment or industry practice.

(3) However, neither of the following is a requirement for entry to a *listed professional occupation:

(a) English language training relating to general aspects of written communication or verbal communication, or both; or

(b) being successful in:

(i) the Occupational English Test administered by Language Australia; or

(ii) any other English language test, where that test does not form an integral part of an occupation‑related study unit, an occupation‑related course of instruction or an occupation‑related tuition and training program.

Division 107—How are amounts of FEE‑HELP assistance worked out?

107‑1 The amount of FEE‑HELP assistance for a unit of study

The amount of *FEE‑HELP assistance to which a student is entitled for a unit of study is the difference between:

(a) the student’s *tuition fee for the unit; and

(b) the sum of any *up‑front payments made in relation to the unit.

Note: A lesser amount may be payable because of section 107‑10.

107‑5 Up‑front payments

(1) An up‑front payment, in relation to a unit of study for which a student is liable to pay a *tuition fee, is a payment of all or part of the student’s tuition fee for the unit, other than a payment of *FEE‑HELP assistance under this Part.

(2) The payment must be made on or before the *census date for the unit.

107‑10 Amounts of FEE‑HELP assistance and VET FEE‑HELP assistance must not exceed the FEE‑HELP balance

Amount of FEE‑HELP assistance for one unit

(1) The amount of *FEE‑HELP assistance to which a student is entitled for a unit of study is an amount equal to the student’s *FEE‑HELP balance on the *census date for the unit if:

(a) there is no other:

(i) unit of study, with the same census date, for which the student is entitled to FEE‑HELP assistance; or

(ii) *VET unit of study, with the same census date, for which the student is entitled to *VET FEE‑HELP assistance; and

(b) the amount of FEE‑HELP assistance to which the student would be entitled under section 107‑1 for the unit would exceed that FEE‑HELP balance.

Amount of FEE‑HELP assistance for more than one unit

(2) If the sum of:

(a) the amount of *FEE‑HELP assistance to which a student would be entitled under section 107‑1 for a unit of study; and

(b) any other amounts of:

(i) FEE‑HELP assistance to which the student would be entitled under that section for other units that have the same *census date as that unit; and

(ii) *VET FEE‑HELP assistance to which the student would be entitled under clause 52 of Schedule 1A for other units that have the same census date as that unit;

would exceed the student’s *FEE‑HELP balance on the census date for the unit, then, despite subsection (1) of this section, the total amount of FEE‑HELP assistance and VET FEE‑HELP assistance to which the student is entitled for all of those units is an amount equal to that FEE‑HELP balance.

Example: Kath has a FEE‑HELP balance of $2,000, and is enrolled in 4 units with the same census date. Kath’s tuition fee for each unit is $600. The total amount of FEE‑HELP assistance to which Kath is entitled for the units is $2,000, even though the total amount of her tuition fees for the units is $2,400.

(3) If the student has enrolled in the units with more than one higher education provider or *VET provider, and access to none of the units was provided by *Open Universities Australia, the student must notify each provider of the proportion of the total amount of *FEE‑HELP assistance or *VET FEE‑HELP assistance that is to be payable in relation to the units in which the student has enrolled with that provider.

(4) If access to some, but not all, of the units of study was provided by *Open Universities Australia, the student must:

(a) notify Open Universities Australia of the proportion of the total amount of *FEE‑HELP assistance that is to be payable in relation to units access to which was provided by Open Universities Australia; and

(b) notify each higher education provider or *VET provider at which the student is enrolled in a unit, access to which was not provided by Open Universities Australia, of the proportion of the total amount of FEE‑HELP assistance or *VET FEE‑HELP assistance that is to be payable in relation to that unit.

Division 110—How are amounts of FEE‑HELP assistance paid?

Note: Part 5‑1 deals generally with payments by the Commonwealth under this Act.

110‑1 Payments

(1) If a student is entitled to an amount of *FEE‑HELP assistance for a unit of study with a higher education provider, and access to the unit was not provided by *Open Universities Australia, the Commonwealth must:

(a) as a benefit to the student, lend to the student the amount of FEE‑HELP assistance; and

(b) pay the amount lent to the provider in discharge of the student’s liability to pay his or her *tuition fee for the unit.

(2) If a student is entitled to an amount of *FEE‑HELP assistance for a unit of study and access to the unit was provided by *Open Universities Australia, the Commonwealth must:

(a) as a benefit to the student, lend to the student the amount of FEE‑HELP assistance; and

(b) pay the amount lent to Open Universities Australia in discharge of the student’s liability to pay his or her *tuition fee for the unit.

110‑5 Effect of FEE‑HELP balance being re‑credited

(1) If, under subsection 104‑25(1) or 104‑27(1) or section 104‑42, 104‑43 or 104‑44, a person’s *FEE‑HELP balance is re‑credited with an amount relating to *FEE‑HELP assistance for a unit of study, the provider must pay to the Commonwealth an amount equal to the amount of FEE‑HELP assistance to which the person was entitled for the unit.

Note: The provider must repay the amount under subsection (1) even if the person’s FEE‑HELP balance is not increased by an amount equal to the amount re‑credited.

(1A) Subsection (1) does not apply to the provider if:

(a) the person’s *FEE‑HELP balance was re‑credited under subsection 104‑25(1) (main case of re‑crediting a person’s FEE‑HELP balance); and

(b) the person enrolled in the unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements.

(1B) The Higher Education Provider Guidelines may, in setting out the tuition assurance requirements, specify, in relation to the re‑crediting of a person’s *FEE‑HELP balance in circumstances to which subsection (1A) applies:

(a) the amount (if any) that is to be paid to the Commonwealth; and

(b) the person (if any) who is to pay the amounts.

(2) If, under subsection 104‑25(2) or 104‑27(2), *Open Universities Australia re‑credits a person’s *FEE‑HELP balance with an amount relating to *FEE‑HELP assistance for a unit of study, Open Universities Australia must pay to the Commonwealth an amount equal to the amount of FEE‑HELP assistance to which the person was entitled for the unit.

Part 3‑4—OS‑HELP assistance

Division 115—Introduction

115‑1 What this Part is about

Students may be entitled to OS‑HELP assistance for periods during which they are undertaking study overseas, if they meet certain requirements. In particular, their higher education provider must have selected them for OS‑HELP assistance.

The amount of OS‑HELP assistance is limited to a maximum amount for each period of study, and only 2 such periods can attract OS‑HELP assistance.

The purpose of OS‑HELP assistance is to help students based in Australia to do part of their course of study overseas.

Note: Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

115‑5 The OS‑HELP Guidelines

*OS‑HELP assistance is also dealt with in the OS‑HELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The OS‑HELP Guidelines are made by the Minister under section 238‑10.

Division 118—Who is entitled to OS‑HELP assistance?

118‑1 Entitlement to OS‑HELP assistance

(1) A student is entitled to *OS‑HELP assistance in relation to a period of 6 months if:

(a) the student meets the citizenship or residency requirements under section 118‑5; and

(b) the student has not received OS‑HELP assistance in relation to more than one other period of 6 months; and

(ca) the course of study is an *accredited course in relation to the home provider; and

(d) the student meets the prior study requirements under section 118‑7; and

(e) the student meets the overseas study requirements under section 118‑10; and

(f) on the completion of that study outside Australia, the student will have to complete units of study that have a total EFTSL value of at least 0.125 EFTSL in order to complete the course requirements for that course of study; and

(g) the student *meets the tax file number requirements (see section 187‑1); and

(h) the student has completed, signed and given to an *appropriate officer of the home provider a *request for Commonwealth assistance in relation to that course of study; and

(ha) the student has applied to the home provider for receipt of OS‑HELP assistance in relation to the period; and

(i) the home provider has selected the student for receipt of OS‑HELP assistance in relation to the period (see section 118‑15).

(2) However, the student is not entitled to *OS‑HELP assistance in relation to that period if:

(a) another higher education provider has granted OS‑HELP assistance to the student in relation to:

(i) that period; or

(ii) a period that overlaps with that period; or

(b) the student applies to the home provider for the assistance after the student has completed the study in relation to the period.

(3) To avoid doubt, the student may be outside Australia when the student applies to the home provider for receipt of *OS‑HELP assistance.

118‑2 Entitlement to supplementary amount for Asian language study

(1) A student is entitled to a *supplementary amount for Asian language study in relation to a period of 6 months if:

(a) the student is entitled to *OS‑HELP assistance in relation to that period; and

(b) the OS‑HELP assistance is for overseas study in Asia; and

(d) the student has applied to the home provider for receipt of a supplementary amount for Asian language study in relation to the period; and

(e) the home provider has selected the student for receipt of a supplementary amount for Asian language study in relation to the period (see section 118‑15).

Note: If a student is entitled to a supplementary amount for Asian language study, the amount of OS‑HELP assistance to which the student is entitled may include an amount for that language study in addition to the amount the student may receive for overseas study: see section 121‑1.

(2) However, the student is not entitled to a *supplementary amount for Asian language study in relation to that period if the student applies to the home provider for the assistance after the student has completed the intensive study in an Asian language in relation to the period.

(3) For the purposes of subsection (1), the OS‑HELP Guidelines may specify circumstances in which a student undertakes intensive study in an Asian language in preparation for undertaking overseas study in Asia.

118‑5 Citizenship or residency requirements

(1) The citizenship or residency requirements for *OS‑HELP assistance are that the student in question is:

(a) an Australian citizen; or

(b) a *permanent humanitarian visa holder; or

(2) This subsection applies to a student who:

(a) is a New Zealand citizen; and

(b) holds a special category visa under the Migration Act 1958; and

(i) first began to be usually resident in Australia at least 10 years before the day referred to in subsection (3) (the test day); and

(ii) was a *dependent child when he or she first began to be usually resident in Australia; and

(d) has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and

(e) has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.

(3) For the purposes of subsection (2), the day is the earlier of:

(a) if the student has previously made a successful *request for Commonwealth assistance under this Chapter in relation to the *course of study the student is enrolled in with the home provider—the day the student first made such a request; or

(b) otherwise—the day the student made the request for Commonwealth assistance in relation to the period.

118‑7 Prior study requirements

The prior study requirements for *OS‑HELP assistance are that:

(a) the student in question has completed units of study in Australia that count towards the course requirements for the *course of study; and

(b) the units of study have a total *EFTSL value of at least one *EFTSL; and

118‑10 Overseas study requirements

The overseas study requirements for *OS‑HELP assistance are that:

(a) the student in question:

(i) is undertaking full‑time study; and

(ii) will be outside Australia while undertaking that study; and

(b) the study commences on or after 1 January 2005; and

(c) the study outside Australia will count towards the course requirements of the *course of study in which the student is enrolled with the home provider.

Note: For paragraph (a), the study need not be at a higher education provider’s overseas campus or with an overseas higher education institution.

118‑15 Selection of students for receipt of OS‑HELP assistance and supplementary amounts for Asian language study

(1) The OS‑HELP Guidelines may set out principles and procedures that higher education providers must follow in deciding whether to select students for receipt of *OS‑HELP assistance or *supplementary amounts for Asian language study.

(3) Any decision by a higher education provider whether to select a student for receipt of *OS‑HELP assistance or a *supplementary amount for Asian language study must be made in accordance with the OS‑HELP Guidelines.

(4) Without limiting the matters that may be included in the OS‑HELP Guidelines made for the purposes of subsection (3), those guidelines may deal with:

(a) the number of its students whom higher education providers may select for receipt of *OS‑HELP assistance or *supplementary amounts for Asian language study; or

(b) how that number is to be determined.

Division 121—How are amounts of OS‑HELP assistance worked out?

121‑1 The amount of OS‑HELP assistance for a period

(1) The amount of *OS‑HELP assistance to which a student is entitled for a period of 6 months is the sum of the following amounts determined by the higher education provider to which the student applied for selection for receipt of the assistance:

(a) the amount determined by the provider for the overseas study (see subsections (2) and (3));

(b) if the student is entitled to a *supplementary amount for Asian language study—the supplementary amount determined by the provider for that language study (see subsections (4) and (5)).

Determining amounts for overseas study

(2) The amount determined for overseas study must not exceed:

(a) the amount specified in the application; or

(b) the *maximum OS‑HELP (overseas study) amount for a period of 6 months.

(3) The amount determined for overseas study must not be less than the higher education provider’s *minimum OS‑HELP (overseas study) amount, if the provider has a minimum OS‑HELP (overseas study) amount.

Determining supplementary amounts for Asian language study

(4) The supplementary amount determined for Asian language study must not exceed:

(a) the amount specified in the application; or

(b) the *maximum OS‑HELP (Asian language study) amount for a period of 6 months.

(5) The supplementary amount determined for Asian language study must not be less than the higher education provider’s *minimum OS‑HELP (Asian language study) amount, if the provider has a minimum OS‑HELP (Asian language study) amount.

121‑5 Maximum OS‑HELP (overseas study) amount

(1) The maximum OS‑HELP (overseas study) amount, for a period of 6 months, is:

(a) if the *OS‑HELP assistance is for overseas study undertaken in Asia—$7,500; or

(b) in any other case—$6,250.

Note: The maximum OS‑HELP (overseas study) amount is indexed under Part 5‑6.

(2) For the purposes of subsection (1), the OS‑HELP Guidelines may specify whether overseas study undertaken at a particular place is undertaken in Asia.

121‑10 Minimum OS‑HELP (overseas study) amount

(1) A higher education provider may determine, in writing, its *minimum OS‑HELP (overseas study) amount.

(2) The determination has effect until:

(a) it is replaced by a later determination; or

(b) it is revoked.

121‑15 Maximum OS‑HELP (Asian language study) amount

The maximum OS‑HELP (Asian language study) amount, for a period of 6 months, is $1,000.

Note: The maximum OS‑HELP (Asian language study) amount is indexed under Part 5‑6.

121‑20 Minimum OS‑HELP (Asian language study) amount

(1) A higher education provider may determine, in writing, its minimum OS‑HELP (Asian language study) amount.

(2) The determination has effect until:

(a) it is replaced by a later determination; or

(b) it is revoked.

Division 124—How are amounts of OS‑HELP assistance paid?

Note: Part 5‑1 deals generally with payments by the Commonwealth under this Act.

124‑1 Amounts of OS‑HELP assistance are lent to students

(1) If a student is entitled to an amount of *OS‑HELP assistance for a period of 6 months, the Commonwealth must, as a benefit to the student, lend to the student the amount of OS‑HELP assistance.

(2) The higher education provider that selected the student for receipt of *OS‑HELP assistance in relation to the period must, on the Commonwealth’s behalf, pay to the student the amount lent.

(2A) The OS‑HELP Guidelines may provide that a student who is entitled to a *supplementary amount for Asian language study may be paid:

(a) an amount for that language study; and

(b) an amount for the overseas study;

at different times determined in accordance with those guidelines.

(2B) If a student is paid amounts at different times as mentioned in subsection (2A), each amount is taken to be a separate loan for the purposes of section 137‑15 (OS‑HELP debts).

(3) The Commonwealth must make payments to the higher education provider on account of amounts the provider pays under this section on the Commonwealth’s behalf.

Part 3‑5—SA‑HELP assistance

Division 125—Introduction

125‑1 What this Part is about

A student may be entitled to SA‑HELP assistance for a student services and amenities fee imposed on him or her by a higher education provider, if certain requirements are met.

The amount of the assistance is the amount of the fee, less any amounts of the fee paid on or before the day the fee is payable (except any SA‑HELP assistance paid under this Part). The assistance is paid to the provider to discharge the student’s liability to pay the fee.

Note: Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

Division 126—Who is entitled to SA‑HELP assistance?

126‑1 Entitlement to SA‑HELP assistance

(1) A student is entitled to *SA‑HELP assistance for a *student services and amenities fee imposed on the student for a period by a higher education provider if:

(a) the student meets the citizenship or residency requirements under section 126‑5; and

(b) the student is enrolled with the provider in a *course of study or a *bridging course for overseas‑trained professionals on the day on which the fee is payable; and

(d) the student has, on or before the day on which the fee is payable, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance in relation to the fee.

(2) A request for Commonwealth assistance, in relation to a *student services and amenities fee imposed for a period on a person who is enrolled with a higher education provider in a *course of study or a *bridging course for overseas‑trained professionals, means a document:

(a) in which the person requests the Commonwealth to provide assistance under this Act in relation to the fee for the period (and any student services and amenities fee imposed for a later period during which the person is enrolled in the course or bridging course); and

(b) that is in the form approved by the Minister.

126‑5 Citizenship or residency requirements

(1) A student meets the citizenship or residency requirements under this section in relation to a *student services and amenities fee imposed on the student by a higher education provider if the student is, on the day the fee is payable:

(a) an Australian citizen; or

(b) a *permanent humanitarian visa holder resident in Australia.

(1A) A student also meets the citizenship or residency requirements under this section in relation to a *student services and amenities fee imposed on the student by a higher education provider if the student:

(a) is a New Zealand citizen on the day the fee is payable; and

(b) holds a special category visa under the Migration Act 1958 on the day the fee is payable; and

(i) first began to be usually resident in Australia at least 10 years before the day referred to in subsection (1B) (the test day); and

(ii) was a *dependent child when he or she first began to be usually resident in Australia; and

(d) has been in Australia for a period of, or for periods totalling, 8 years during the 10 years immediately before the test day; and

(e) has been in Australia for a period of, or for periods totalling, 18 months during the 2 years immediately before the test day.

(1B) For the purposes of subsection (1A), the day is the earlier of:

(a) if the student:

(i) is enrolled with the provider in a *course of study; and

(ii) has previously made a successful *request for Commonwealth assistance under this Chapter in relation to the course—the day the student first made such a request; or

(b) otherwise—the day the student made the request for Commonwealth assistance in relation to the fee.

(2) Despite subsections (1) and (1A), a student does not meet the citizenship or residency requirements in relation to a *student services and amenities fee imposed on the student by a higher education provider if the provider reasonably expects that the student will not undertake in Australia any *units of study with the provider.

Division 127—How are amounts of SA‑HELP assistance worked out?

127‑1 The amount of SA‑HELP assistance for a student services and amenities fee

The amount of *SA‑HELP assistance to which a student is entitled for a *student services and amenities fee is the difference (if any) between:

(a) the fee; and

(b) the sum of any payments of the fee (other than a payment of SA‑HELP assistance under this Part) made on or before the day on which the fee is payable.

Division 128—How are amounts of SA‑HELP assistance paid?

Note: Part 5‑1 deals generally with payments by the Commonwealth under this Act.

128‑1 Payments to higher education providers of loans to students

If a student is entitled to an amount of *SA‑HELP assistance for a *student services and amenities fee imposed by a higher education provider, the Commonwealth must:

(a) as a benefit to the student, lend to the student the amount of SA‑HELP assistance; and

(b) pay to the provider the amount lent in discharge of the student’s liability to pay the fee.

128‑5 Repayment by higher education provider if student does not have tax file number

A higher education provider must repay the Commonwealth an amount paid to the provider under section 128‑1 in discharge of a person’s liability to pay a *student services and amenities fee if subsection 193‑15(1) applies to the person.

Note 1: Subsection 193‑15(1) applies to a person who does not have a tax file number.

Note 2: The person’s SA‑HELP debt will be remitted if the higher education provider must repay the amount under this section: see subsection 137‑16(4).

Chapter 4—Repayment of loans

Division 129—Introduction

129‑1 What this Chapter is about

Loans that the Commonwealth makes to students under Chapter 3 are repayable under this Chapter. Loans that the Commonwealth makes to students under Schedule 1A or the VET Student Loans Act 2016 are also repayable under this Chapter.

Each loan is incorporated into the person’s accumulated HELP debt (see Part 4‑1).

Under Part 4‑2, the accumulated debts can be repaid in 2 ways:

• a person may make voluntary repayments; or

• compulsory repayments (based on a person’s income) are made using the system for payment of income tax.

Part 4‑1—Indebtedness

Division 134—Introduction

134‑1 What this Part is about

A person incurs a HELP debt if he or she receives, as HECS‑HELP assistance, FEE‑HELP assistance, OS‑HELP assistance or SA‑HELP assistance, a loan from the Commonwealth under Chapter 3.

A person also incurs a HELP debt if he or she receives, as VET FEE‑HELP assistance, a loan from the Commonwealth under Schedule 1A.

A person also incurs a HELP debt if the Secretary uses an amount of a VET student loan approved under the VET Student Loans Act 2016 to pay tuition fees for the person.

HELP debts are incorporated into the person’s accumulated HELP debt. This accumulated debt forms the basis of working out the amounts that the person is obliged to repay (see Part 4‑2).

Division 137—How do HELP debts arise?

137‑1 HELP debts

The following are HELP debts:

(a) *HECS‑HELP debts;

(b) *FEE‑HELP debts;

(ca) *SA‑HELP debts;

(d) *VET FEE‑HELP debts;

(e) *VET student loan debts.

137‑5 HECS‑HELP debts

Incurring HECS‑HELP debts

(1) A person incurs a debt to the Commonwealth if, under section 96‑1, the Commonwealth:

(a) makes a loan to the person; and

(b) uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *student contribution amount for a unit of study.

The debt is a HECS‑HELP debt.

(2) The amount of the *HECS‑HELP debt is the amount of the loan.

When HECS‑HELP debts are incurred

(3) A *HECS‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *student contribution amount for the unit.

Remission of HECS‑HELP debts

(4) A person’s *HECS‑HELP debt in relation to a unit of study is taken to be remitted if section 36‑20, 36‑24A or 36‑24B applies to the person (even if subsection 36‑20(3) applies to the provider in relation to the person).

137‑10 FEE‑HELP debts

Incurring FEE‑HELP debts

(1) A person incurs a debt to the Commonwealth if, under section 110‑1, the Commonwealth:

(a) makes a loan to the person; and

(b) uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *tuition fee for a unit of study.

The debt is a FEE‑HELP debt.

(2) The amount of the *FEE‑HELP debt is:

(a) if the loan relates to *FEE‑HELP assistance for a unit of study that forms part of an *undergraduate course of study—an amount equal to 125% of the loan; or

(b) if paragraph (a) does not apply—the amount of the loan.

When FEE‑HELP debts are incurred

(3) A *FEE‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *tuition fee for the unit.

Remission of FEE‑HELP debts

(4) A person’s *FEE‑HELP debt in relation to a unit of study is taken to be remitted if the person’s *FEE‑HELP balance is re‑credited under section 104‑25, 104‑27, 104‑42, 104‑43 or 104‑44 in relation to the unit.

Note: The debt is taken to be remitted even if the person’s FEE‑HELP balance is not increased by an amount equal to the amount re‑credited.

137‑15 OS‑HELP debts

Incurring OS‑HELP debts

(1) A person incurs a debt to the Commonwealth if, under section 124‑1, the Commonwealth makes a loan to the person. The debt is an OS‑HELP debt.

Note: For a student who is entitled to a supplementary amount for Asian language study, see subsections 124‑1(2A) and (2B).

(2) The amount of the *OS‑HELP debt is an amount equal to the amount of the loan.

When OS‑HELP debts are incurred

(3) The *OS‑HELP debt is taken to have been incurred on the day on which a higher education provider, on the Commonwealth’s behalf, paid the amount lent to the person.

137‑16 SA‑HELP debts

Incurring SA‑HELP debts

(1) A person incurs a debt to the Commonwealth if, under section 128‑1, the Commonwealth:

(a) makes a loan to the person; and

(b) uses the amount lent to make a payment of the person’s liability to pay a *student services and amenities fee.

The debt is an SA‑HELP debt.

(2) The amount of the *SA‑HELP debt is an amount equal to the loan.

When SA‑HELP debts are incurred

(3) An *SA‑HELP debt is taken to have been incurred by a person immediately after the day on which the *student services and amenities fee to which the loan relates is payable, whether or not the Commonwealth has made a payment in respect of the fee.

Remission of SA‑HELP debts

(4) A person’s *SA‑HELP debt in relation to a *student services and amenities fee imposed by a higher education provider is taken to be remitted if, under section 128‑5, the provider must repay the Commonwealth the amount the Commonwealth paid the provider in relation to the fee.

137‑18 VET FEE‑HELP debts

Incurring VET FEE‑HELP debts

(1) A person incurs a debt to the Commonwealth if, under clause 55 of Schedule 1A, the Commonwealth:

(a) makes a loan to the person; and

(b) uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *VET tuition fee for a *VET unit of study.

The debt is a VET FEE‑HELP debt.

(2) The amount of the *VET FEE‑HELP debt is:

(a) 120% of the loan; or

(b) if the *VET Guidelines specify a lesser percentage of the loan for the person—that lesser percentage of the loan.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

When VET FEE‑HELP debts are incurred

(3) A *VET FEE‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *VET tuition fee for the unit.

Remission of VET FEE‑HELP debts

(4) A person’s *VET FEE‑HELP debt in relation to a *VET unit of study is taken to be remitted if the person’s *FEE‑HELP balance is re‑credited under clause 46, 46A, 47 or 51 of Schedule 1A in relation to the unit.

Note: The debt is taken to be remitted even if the person’s FEE‑HELP balance is not increased by an amount equal to the amount re‑credited.

(5) A person’s *VET FEE‑HELP debt in relation to a *VET unit of study is taken to be remitted to the extent that the person’s *FEE‑HELP balance is re‑credited under clause 46B of Schedule 1A in relation to the unit.

137‑19 VET student loan debts

Incurring VET student loan debts

(1) A person incurs a debt to the Commonwealth if, under the VET Student Loans Act 2016, the Secretary:

(a) approves a *VET student loan for the person; and

(b) uses an amount (the loan amount) covered by the VET student loan to pay tuition fees for the person for a course.

The debt is a VET student loan debt.

(2) The amount of the *VET student loan debt is:

(a) 120% of the loan amount; or

(b) if the rules made under the VET Students Loans Act 2016 specify a lesser percentage of the loan amount for the person—that lesser percentage of the loan amount.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

When VET student loan debts are incurred

(3) A *VET student loan debt is incurred on the day that the Secretary pays the loan amount.

Remission of VET student loan debts

(4) A person’s *VET student loan debt in relation to a loan amount is taken to be remitted if the person’s *FEE‑HELP balance is re‑credited under Part 6 of the VET Student Loans Act 2016 in relation to the loan amount.

137‑20 HELP debt discharged by death

Upon the death of a person who owes a *HELP debt to the Commonwealth, the debt is taken to have been paid.

Note: HELP debts are not provable in bankruptcy: see subsection 82(3AB) of the Bankruptcy Act 1966.

Division 140—How are accumulated HELP debts worked out?

Subdivision 140‑A—Outline of this Division

140‑1 Outline of this Division

(1) There are 2 stages to working out a person’s *accumulated HELP debt for a financial year.

Stage 1—Former accumulated HELP debt

(2) The *former accumulated HELP debt is worked out by adjusting the preceding financial year’s *accumulated HELP debt to take account of:

(a) changes in the Consumer Price Index; and

(b) the *HELP debts that he or she incurs during the last 6 months of the preceding financial year; and

(d) *compulsory repayment amounts in respect of the debt.

(See Subdivision 140‑B.)

Stage 2—Accumulated HELP debt

(3) The person’s *accumulated HELP debt is worked out from:

(a) his or her *former accumulated HELP debt; and

(b) the *HELP debts that he or she incurs during the first 6 months of the financial year; and

(See Subdivision 140‑C.)

Note: Incurring that financial year’s accumulated HELP debt discharges the previous accumulated HELP debt and HELP debts under this Part: see section 140‑35.

Subdivision 140‑B—Former accumulated HELP debts

140‑5 Working out a former accumulated HELP debt

(1) A person’s former accumulated HELP debt, in relation to the person’s *accumulated HELP debt for a financial year, is worked out by multiplying:

(a) the amount worked out using the following method statement; by

(b) the *HELP debt indexation factor for 1 June in that financial year.

Method statement

Step 1. Take the person’s *accumulated HELP debt for the immediately preceding financial year. (This amount is taken to be zero if the person has no accumulated HELP debt for that financial year.)

Step 2. Take the HELP debts (if any) that the person incurred during the last 6 months of the immediately preceding financial year. Group them according to whether the debts are in relation to:

(a) units undertaken with a higher education provider that formed part of one particular *course of study with that provider; or

(b) units undertaken with a higher education provider that formed part of one particular course of study with another higher education provider; or

(d) units access to which was provided by *Open Universities Australia; or

(e) *OS‑HELP assistance, the entitlement to which relates to the person’s enrolment in a *course of study with one particular higher education provider (see paragraph 118‑1(1)(c)); or

(ea) *SA‑HELP assistance for *student services and amenities fees imposed on the person by one particular higher education provider; or

(f) units undertaken with a *VET provider that formed part of one particular *VET course of study with that provider; or

(g) units undertaken with a VET provider that formed part of one particular VET course of study with another VET provider; or

(h) a *VET student loan in relation to one particular course of study.

Note: There will be more than one group of debts under paragraph (a) if the person incurred debts in relation to more than one course of study with a provider. Similarly, there could be more than one group of debts under paragraph (b), (c), (e), (ea), (f), (g) or (h).

Step 2A. Work out the total for each group of debts. If the total for a particular group is an amount consisting of a number of whole dollars and a number of cents, the total for that group is taken to be the number of whole dollars. If the total for a group is an amount of less than one dollar, the total for the group is taken to be zero.

Step 2B. If there is more than one group of debts for the person, add together the totals for all of the groups.

Step 3. Subtract the sum of the amounts by which the person’s debts referred to above are reduced because of any *voluntary repayments that have been made during the period:

(a) starting on 1 June in the immediately preceding financial year; and

(b) ending immediately before the next 1 June.

Step 4. Subtract the sum of all of the person’s *compulsory repayment amounts that:

(a) were assessed during that period (excluding any assessed as a result of a *return given before that period); or

(b) were assessed after the end of that period as a result of a return given before the end of that period.

Step 5. Subtract the sum of the amounts by which any *compulsory repayment amount of the person is increased (whether as a result of an increase in the person’s *taxable income of an *income year or otherwise) by an amendment of an assessment made during that period.

Step 6. Add the sum of the amounts by which any *compulsory repayment amount of the person is reduced (whether as a result of a reduction in the person’s *taxable income of an *income year or otherwise) by an amendment of an assessment made during that period.

Example: Lorraine is studying part‑time for a Degree of Bachelor of Communications. On 1 June 2013, Lorraine had an accumulated HELP debt of $15,000. She incurred a HELP debt of $1,500 on 31 March 2013. She made a voluntary repayment of $525 on 1 May 2014. Lorraine lodged her 2012‑13 income tax return and a compulsory repayment amount of $3,000 was assessed and notified on her income tax notice of assessment on 3 September 2013.

To work out Lorraine’s former accumulated HELP debt before indexation on 1 June 2014:

Step 1: Take the previous accumulated HELP debt of $15,000 on 1 June 2013.

Step 2: Add the HELP debt of $1,500 incurred on 31 March 2013.

Step 3: Subtract the $525 voluntary repayment made on 1 May 2014.

Step 4: Subtract the $3,000 compulsory repayment assessed on 3 September 2013.

Steps 5 and 6: Do not apply because since 1 June 2013 Lorraine had no amendments to any assessment.

Lorraine’s former accumulated HELP debt before indexation on 1 June 2014 is:

If, for example, the indexation factor for 1 June 2014 were 1.030, then the former accumulated HELP debt would be:

(2) For the purposes of this section, an assessment, or an amendment of an assessment, is taken to have been made on the day specified in the notice of assessment, or notice of amended assessment, as the date of issue of that notice.

140‑10 HELP debt indexation factor

(1) The HELP debt indexation factor for 1 June in a financial year is the number (rounded to 3 decimal places) worked out as follows:

Method statement

Step 1. Add:

(a) the *index number for the *quarter ending on 31 March in that financial year; and

(b) the index numbers for the 3 quarters that immediately preceded that quarter.

Step 2. Add:

(a) the *index number for the *quarter ending on 31 March in the immediately preceding financial year; and

(b) the index numbers for the 3 quarters that immediately preceded that quarter.

Step 3. The HELP debt indexation factor for 1 June in the financial year is the amount under step 1 divided by the amount under step 2.

(2) For the purposes of rounding a *HELP debt indexation factor, the third decimal place is rounded up if, apart from the rounding:

(a) the factor would have 4 or more decimal places; and

(b) the fourth decimal place would be a number greater than 4.

140‑15 Index numbers

(1) The index number for a *quarter is the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the *Australian Statistician in respect of that quarter.

(2) Subject to subsection (3), if, at any time before or after the commencement of this Act:

(a) the *Australian Statistician has published or publishes an *index number in respect of a *quarter; and

(b) that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;

disregard the publication of the later index for the purposes of this section.

(3) If, at any time before or after the commencement of this Act, the *Australian Statistician has changed or changes the reference base for the Consumer Price Index, then, in applying this section after the change took place or takes place, have regard only to *index numbers published in terms of the new reference base.

140‑20 Publishing HELP debt indexation factors

The *Commissioner must cause to be published before 1 June in each financial year the *HELP debt indexation factor for that 1 June.

Subdivision 140‑C—Accumulated HELP debts

140‑25 Working out an accumulated HELP debt

(1) A person’s accumulated HELP debt, for a financial year, is worked out as follows:

where:

former accumulated HELP debt is the person’s *former accumulated HELP debt in relation to that *accumulated HELP debt.

HELP debt repayments is the sum of all of the *voluntary repayments (if any) paid, on or after 1 July in the financial year and before 1 June in that year, in reduction of the *HELP debts incurred in that year.

HELP debts incurred means the amount worked out using the method statement in subsection (1A).

Example: Paula is studying part‑time for a Degree of Bachelor of Science. On 1 June 2009, her former accumulated HELP debt was worked out using Subdivision 140‑B to be $20,000. She incurred a HELP debt of $1,500 on 31 August 2008. No repayments have been made in the 12 months from 1 June 2008.

Paula’s accumulated HELP debt on 1 June 2009 is worked out by taking her former accumulated HELP debt of $20,000 and adding the $1,500 HELP debt incurred on 31 August 2008. That is:

(1A) For the purposes of the definition of HELP debts incurred in subsection (1), use the following method statement:

Step 1. Take the HELP debts (if any) that the person incurred during the first 6 months of the financial year. Group them according to whether the debts are in relation to: