Commonwealth Coat of Arms of Australia

Higher Education Support Act 2003

No. 149, 2003

Compilation No. 82

Compilation date: 1 September 2021

Includes amendments up to: Act No. 55, 2021

Registered: 2 November 2021

This compilation includes commenced amendments made by Act No. 13 2021

About this compilation

This compilation

This is a compilation of the Higher Education Support Act 2003 that shows the text of the law as amended and in force on 1 September 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Selfrepealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

Chapter 1—Introduction

Division 1—Preliminary

11 Short title

15 Commencement

110 Identifying defined terms

Division 2—Objects

21 Objects of this Act

Division 3—Overview of this Act

31 General

35 Grants for higher education assistance etc. (Chapter 2)

310 Assistance to students (Chapter 3)

315 Repayment of loans (Chapter 4)

320 Administration (Chapter 5)

330 VET FEEHELP Assistance Scheme (Schedule 1A)

Division 5—Application of Act to Table C providers

51 Application of Act to Table C providers

Division 6—Schedule 1A

61 Schedule 1A

Chapter 2—Grants for higher education assistance etc.

Division 8—Introduction

81 What this Chapter is about

Part 21—Higher education providers

Division 13—Introduction

131 What this Part is about

135 The Higher Education Provider Guidelines

Division 16—What is a higher education provider?

Subdivision 16A—General

161 Meaning of higher education provider

165 When a body becomes or ceases to be a higher education provider

Subdivision 16B—Which bodies are listed providers?

1610 Listed providers

1615 Table A providers

1620 Table B providers

1622 Table C providers

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

1625 Approval by the Minister

1627 Body must be a registered higher education provider

1630 The tuition protection requirements

1640 Application

1645 Minister may seek further information

1650 Minister to decide application

1655 Approvals are legislative instruments

1660 Conditions of approval

1665 Minister to cause higher education provider to be notified of change in condition of approval

1670 Variation of approval if body’s name changes

Division 19—What are the quality and accountability requirements?

Subdivision 19A—General

191 The quality and accountability requirements

Subdivision 19B—The financial viability requirements

195 Basic requirement

1910 Financial information must be provided

1912 Minister to have regard to financial information and matters prescribed in Higher Education Guidelines

Subdivision 19C—The quality requirements

1915 Provider must maintain quality

Subdivision 19D—The fairness requirements

1930 Basic requirement

1935 Benefits and opportunities must be available equally to all students

1936 Misrepresenting assistance under Chapter 3

1936A Offering certain inducements

1936B Engaging in coldcalling

1936C Use of third party contact lists

1936D Other marketing requirements

1936E Requirements relating to requests for Commonwealth assistance

1937 Requiring membership of certain organisations or payment of certain amounts

1938 Higher education providers’ expenditure of student services and amenities fees

1942 Assessment of students as academically suited

1945 Student grievance and review procedures

1950 Higher education providers to appoint review officers

1955 Review officers not to review own decisions

1960 Procedures relating to personal information

Subdivision 19E—The compliance requirements

1965 Basic requirements

1966 Higher education provider charge

1966A Tuition protection requirements

1967 Special requirements for student services, amenities, representation and advocacy in 2012 and later years

1970 Provider to provide statement of general information

1971 Cooperation with HESA and TEQSA investigators

1972 Providers must keep records

1973 Providers must publish information

1975 Notice of events that affect provider’s ability to comply with conditions of Commonwealth assistance

1977 Notice of events affecting accreditation

1978 Notice of events significantly affecting TEQSA registration

1980 Compliance assurance

1982 Compliance notices

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

1985 Basic requirement

1987 Determining student contribution amounts for all places in units

1990 Determining tuition fees for all students

1995 Schedules of student contribution amounts for places and tuition fees

19100 Limits on fees for courses of study

19102 Meaning of fee

19105 Meaning of tuition fee

Subdivision 19G—The compact and academic freedom requirements

19110 Table A providers and Table B providers must enter into mission based compacts

19115 Provider to have policy upholding freedom of speech and academic freedom

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

Subdivision 22A—General

221 Cessation of approval as a provider

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

222 Automatic revocation of approval if registration ceases

223 Automatic revocation of approval if winding up order made

Subdivision 22B—Revocation for cause

225 Revocation of approval if application for approval as a provider is false or misleading

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

2210 Revocation of approval if status or accreditation changes

2215 Revocation of approval as a provider for a breach of conditions or the quality and accountability requirements

2217 Revocation of approval as a provider if provider etc. not a fit and proper person

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

2220 Process for revoking approval

2225 Determination retaining approval as a provider in respect of existing students

2230 Suspension of approval as a provider

2232 Determination retaining approval as a provider in respect of existing students following suspension of approval

Subdivision 22D—Revocation of approval on application

2240 Revocation of approval as a provider on application

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

2245 Notice of approval ceasing to have effect under the Legislation Act 2003

2250 Notice of revocation ceasing to have effect under the Legislation Act 2003

Part 22—Commonwealth Grant Scheme

Division 27—Introduction

271 What this Part is about

275 Commonwealth Grant Scheme Guidelines

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

Subdivision 30A—Basic rules

301 Eligibility for grants

Subdivision 30B—Allocation of places

3010 Allocation of places

3012 Designated higher education courses

3015 Funding clusters

3020 National priorities

Subdivision 30C—Funding agreements

3025 Funding agreements

3027 Specification of maximum basic grant amounts in funding agreements

3028 Funding agreement to be published

Division 33—How are grant amounts worked out?

Subdivision 33A—Basic rule

331 How grant amount is worked out

Subdivision 33B—Total basic grant amounts

335 Total basic grant amounts

3310 Commonwealth contribution amounts and grandfathered Commonwealth contribution amounts

3330 Working out the number of Commonwealth supported places provided

3335 Funding clusters, or parts of funding clusters, in which units are included

Subdivision 33C—Adjustments

3337 Adjustments for breach of section 1937

Subdivision 33D—Special purpose advances

3340 Advances for certain purposes

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

Subdivision 36A—General

361 Condition of grant to comply with this Division

Subdivision 36B—Conditions relating to Commonwealth supported students

365 Meaning of Commonwealth supported student

3610 Advice on whether a person is a Commonwealth supported student—general

3612 Advice on whether a person is a Commonwealth supported student—unreasonable study load

3615 Persons not to be advised they are Commonwealth supported

3620 Providers to repay amounts—special circumstances

3621 Special circumstances

3622 Application period

3623 Dealing with applications

3624A Providers to repay amounts—provider defaults

3624B Providers to repay amounts—no tax file numbers

3624BB Providers to repay amounts—provider completes request for assistance

3624BC Providers to repay amounts—person not entitled to assistance

3624C Secretary may act if provider is unable to

Subdivision 36C—Conditions relating to enrolment

3625 Continued support for Commonwealth supported students

3630 Providers to enrol persons as Commonwealth supported students

3640 Providers to cancel enrolments in certain circumstances

Subdivision 36D—Conditions relating to student contribution amounts

3645 Limits on student contribution amounts

3650 Provider must not accept upfront payments of more than 90% of student contribution amounts

Subdivision 36E—Conditions relating to tuition fees

3655 Tuition fees for nonCommonwealth supported students

Subdivision 36F—Other conditions

3660 Providers to meet the quality and accountability requirements

3665 Providers to comply with funding agreement

3670 Providers to comply with the Commonwealth Grant Scheme Guidelines

Part 22A—Indigenous student assistance grants

Division 38—Indigenous student assistance grants

381 What this Part is about

385 Indigenous Student Assistance Grants Guidelines

3810 Eligibility for grants under this Part

3815 Guidelines may provide for grants

3820 Approval of grants

3825 Conditions on grants

3830 Amounts of grants

3835 Amounts payable under this Part

3840 Rollover of grant amounts

3845 Maximum payments for grants under this Part

Part 23—Other grants

Division 41—Other grants

411 What this Part is about

415 The Other Grants Guidelines

4110 Eligibility for grants under this Part

4115 Grants may be paid under programs

4120 Approval of grants

4125 Conditions on grants

4130 Amount of a grant

4135 Amounts payable under this Part

4140 Rollover of grant amounts

4145 Maximum payments for other grants under this Part

4195 Alternative constitutional bases

Part 24—Commonwealth scholarships

Division 46—Commonwealth scholarships

461 What this Part is about

465 The Commonwealth Scholarships Guidelines

4610 Classes of Commonwealth scholarships

4613 Eligibility of students to receive directlypaid standard Commonwealth scholarships

4615 Eligibility of higher education providers to receive grants for certain Commonwealth scholarships

4620 Other matters relating to Commonwealth scholarships

4625 Condition of grants

4630 Amounts payable under this Part

4635 Rollover of grant amounts

4640 Maximum payments for Commonwealth scholarships

Part 25—Reduction and repayment of grants

Division 51—Introduction

511 What this Part is about

Division 54—In what circumstances may a grant be reduced or required to be repaid?

541 Decision as to reduction or repayment of a grant

545 Appropriateness of requiring reduction or repayment of grant

Division 57—What is the amount of a reduction or repayment?

571 Reduction in amount of grants

575 Amount of the repayment

Division 60—How are decisions reducing a grant or requiring repayment of a grant made?

601 Procedure prior to decision

605 Notification of decision

6010 When a decision takes effect

Chapter 3—Assistance to students

Division 65—Introduction

651 What this Chapter is about

Part 32—HECSHELP assistance

Division 87—Introduction

871 What this Part is about

875 The HECSHELP Guidelines

Division 90—Who is entitled to HECSHELP assistance?

901 Entitlement to HECSHELP assistance

905 Citizenship or residency requirements

Division 93—How are amounts of HECSHELP assistance worked out?

931 The amount of HECSHELP assistance for a unit of study

935 Student contribution amounts

9310 Maximum student contribution amount for a place

9315 Upfront payments

9320 Amounts of HECSHELP assistance, FEEHELP assistance and VET FEEHELP assistance must not exceed the HELP balance

Division 96—How are amounts of HECSHELP assistance paid?

961 Payments to higher education providers—no upfront payment of student contribution amount

962 Payments to higher education providers—partial upfront payment of student contribution amount

963 Payments to higher education providers—full upfront payment of student contribution amount

9610 Implications for student’s liability to higher education provider for student contribution amount

Division 97—Recrediting of HELP balances in relation to HECSHELP assistance

9723 Purpose

9725 Main case of recrediting a person’s HELP balance in relation to HECSHELP assistance

9727 Recrediting a person’s HELP balance in relation to HECSHELP assistance—no tax file number

9730 Special circumstances

9735 Application period

9740 Dealing with applications

9742 Recrediting a person’s HELP balance in relation to HECSHELP assistance—provider defaults

9745 Recrediting a person’s HELP balance in relation to HECSHELP assistance—provider completes request for assistance

9750 Recrediting a person’s HELP balance in relation to HECSHELP assistance—person not entitled to assistance

Part 33—FEEHELP assistance

Division 101—Introduction

1011 What this Part is about

1015 The FEEHELP Guidelines

Division 104—Who is entitled to FEEHELP assistance?

Subdivision 104A—Basic rules

1041 Entitlement to FEEHELP assistance

1041AA Student has unreasonable study load

1041A Failure by a student to complete previous units with provider

1042 Failure by a student to complete previous units accessed through Open Universities Australia

1043 Failure by Open Universities Australia to comply with FEEHELP Guidelines etc.

1044 Failure by Open Universities Australia to set tuition fees and census date

1045 Citizenship or residency requirements

10410 Course requirements

10412 Secretary may act if provider is unable to

Subdivision 104B—Recrediting HELP balances in relation to FEEHELP assistance

10425 Main case of recrediting a person’s HELP balance in relation to FEEHELP assistance

10427 Recrediting a person’s HELP balance in relation to FEEHELP assistance—no tax file number

10430 Special circumstances

10435 Application period

10440 Dealing with applications

10442 Recrediting a person’s FEEHELP balance if provider defaults or person elects recrediting

10443 Recrediting a person’s HELP balance in relation to FEEHELP assistance if not a genuine student

10444 Recrediting a person’s HELP balance in relation to FEEHELP assistance if provider completes request for assistance etc.

Subdivision 104C—Bridging courses for overseastrained professionals

10445 Meaning of bridging course for overseastrained professionals

10450 Assessment statements

10455 Meaning of assessing body

10460 Meaning of listed professional occupations

10465 Occupation includes part of an occupation

10470 Requirements for entry to an occupation

Division 107—How are amounts of FEEHELP assistance worked out?

1071 The amount of FEEHELP assistance for a unit of study

1075 Upfront payments

10710 Amounts of FEEHELP assistance, HECSHELP assistance and VET FEEHELP assistance must not exceed the HELP balance

Division 110—How are amounts of FEEHELP assistance paid?

1101 Payments

1105 Effect of HELP balance being recredited

11010 Implications for student’s liability to higher education provider for student tuition fee

Part 34—OSHELP assistance

Division 115—Introduction

1151 What this Part is about

1155 The OSHELP Guidelines

Division 118—Who is entitled to OSHELP assistance?

1181 Entitlement to OSHELP assistance

1182 Entitlement to supplementary amount for Asian language study

1185 Citizenship or residency requirements

1187 Prior study requirements

11810 Overseas study requirements

11815 Selection of students for receipt of OSHELP assistance and supplementary amounts for Asian language study

Division 121—How are amounts of OSHELP assistance worked out?

1211 The amount of OSHELP assistance for a period

1215 Maximum OSHELP (overseas study) amount

12110 Minimum OSHELP (overseas study) amount

12115 Maximum OSHELP (Asian language study) amount

12120 Minimum OSHELP (Asian language study) amount

Division 124—How are amounts of OSHELP assistance paid?

1241 Amounts of OSHELP assistance are lent to students

Part 35—SAHELP assistance

Division 125—Introduction

1251 What this Part is about

Division 126—Who is entitled to SAHELP assistance?

1261 Entitlement to SAHELP assistance

1265 Citizenship or residency requirements

Division 127—How are amounts of SAHELP assistance worked out?

1271 The amount of SAHELP assistance for a student services and amenities fee

Division 128—How are amounts of SAHELP assistance paid?

1281 Payments to higher education providers of loans to students

1285 Repayment by higher education provider if student does not have tax file number

Part 36—HELP balances

1287 What this Part is about

12815 HELP balances

12820 HELP loan limit

12825 Recrediting HELP balance—discharge of HELP debt etc.

Chapter 4—Repayment of loans

Division 129—Introduction

1291 What this Chapter is about

Part 41—Indebtedness

Division 134—Introduction

1341 What this Part is about

1345 The Very Remote HELP Debtor Guidelines

Division 137—How do HELP debts arise?

1371 HELP debts

1375 HECSHELP debts

13710 FEEHELP debts

13715 OSHELP debts

13716 SAHELP debts

13718 VET FEEHELP debts

13719 Pre1 July 2019 VSL debts

13720 HELP debt discharged by death

Division 140—How are accumulated HELP debts worked out?

Subdivision 140A—Outline of this Division

1401 Outline of this Division

Subdivision 140B—Former accumulated HELP debts

1405 Working out a former accumulated HELP debt

14010 HELP debt indexation factor

14020 Publishing HELP debt indexation factors

Subdivision 140C—Accumulated HELP debts

14025 Working out an accumulated HELP debt

14030 Rounding of amounts

14035 Accumulated HELP debt discharges earlier debts

14040 Accumulated HELP debt discharged by death

Division 142—Special measures for very remote HELP debtors

1421 Meaning of very remote HELP debtor

1425 Meaning of course of study in education

14210 Reducing indexation of accumulated HELP debts

14215 Reducing accumulated HELP debts

14220 Refunding amounts

Part 42—Discharge of indebtedness

Division 148—Introduction

1481 What this Part is about

1483 The Overseas Debtors Repayment Guidelines

Division 151—How is indebtedness voluntarily discharged?

1511 Voluntary repayments in respect of debts

15110 Application of voluntary repayments

15115 Refunding of payments

Division 154—How is indebtedness compulsorily discharged?

Subdivision 154A—Liability to repay amounts

1541 Liability to repay amounts

1545 Repayment income

15410 Minimum repayment income

15415 Repayable debt for an income year

Subdivision 154AA—Liability of overseas debtors to repay amounts

15416 Liability of overseas debtors to repay amounts

15417 Assessed worldwide income

15418 Notices to be given to the Commissioner

Subdivision 154B—Amounts payable to the Commonwealth

15420 Amounts payable to the Commonwealth

15425 Indexation

15430 Publishing indexed amounts

15432 Amounts payable to the Commonwealth by overseas debtors

Subdivision 154C—Assessments

15435 Commissioner may make assessments

15440 Notification of notices of assessment of tax

15445 Commissioner may defer making assessments

15450 Commissioner may amend assessments

15455 Higher education providers etc. to provide information to Commissioner

Subdivision 154D—Application of tax legislation

15460 Returns, assessments, collection and recovery

15465 Charges and civil penalties for failing to meet obligations

15470 Pay as you go (PAYG) withholding

15480 Pay as you go (PAYG) instalments

15490 Failures to comply with section 15418

Chapter 5—Administration

Division 159—Introduction

1591 What this Chapter is about

1595 The Administration Guidelines

Part 51—Payments by the Commonwealth

Division 164—Payments by the Commonwealth

1641 What this Part is about

1645 Time and manner of payments

16410 Advances

16415 Overpayments of Commonwealth grants

16417 Overpayments of Commonwealth scholarships to students

16418 Repayment of Commonwealth scholarships paid to students—breach of condition

16420 Rounding of amounts

Part 51A—Tuition protection

Division 1—Preliminary

1661 What this Part is about

1665 Application of this Part

16610 When a higher education provider defaults in relation to a student

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

16615 Higher education providers must give notice of default to Higher Education Tuition Protection Director

16620 Higher education providers must give notice of default to affected students

16625 Obligation on providers in case of default

16626 Failure to discharge obligations

16626A Providers to notify of outcome of discharge of obligations

16626B Student placement service

16627 Obligations of providers to provide information about replacement courses

16630 Obligations of replacement providers

16632 Obligations of replacement providers regarding enrolment information

16635 Notification obligations where there is no replacement course or student elects recrediting

16640 Other tuition protection information must be provided

16645 Continuing application of Part to certain persons

Part 51B—Higher Education Tuition Protection Fund, Higher Education Tuition Protection Director and Higher Education Tuition Protection Fund Advisory Board

Division 1—Higher Education Tuition Protection Fund

1671 Name of Fund

1675 Credits to the Higher Education Tuition Protection Fund

16710 Purposes of the Higher Education Tuition Protection Fund

Division 2—Higher Education Tuition Protection Director

16715 Higher Education Tuition Protection Director

16720 Functions of the Higher Education Tuition Protection Director

16725 Administrative provisions relating to the Higher Education Tuition Protection Director

Division 3—Higher Education Tuition Protection Fund Advisory Board

16730 Establishment and membership

16735 Function of the Higher Education Tuition Protection Fund Advisory Board

16740 Administrative provisions relating to the Higher Education Tuition Protection Fund Advisory Board

Part 52—Administrative requirements on higher education providers

Division 169—Administrative requirements on higher education providers

1691 What this Part is about

1695 Notices

16910 Correction of notices

16915 Charging student contribution amounts and tuition fees

16917 Requirements relating to withdrawal from units of study

16920 Exempt students

16925 Determining census dates and EFTSL values

16927 Meaning of EFTSL

16928 Meaning of EFTSL value

16930 Communications with the Commonwealth concerning students etc.

16935 6 week cut off for corrections affecting entitlement to Commonwealth assistance

Part 53—Electronic communications

Division 174—Electronic communications

1741 What this Part is about

1745 Guidelines may deal with electronic communications

Part 54—Management of information

Division 179—Protection of personal information

1791 What this Division is about

1795 Meaning of personal information

17910 Use of personal information

17915 Meanings of officer etc. and official employment

17920 When information is disclosed in the course of official employment

17925 Commissioner may disclose information

17930 Oath or affirmation to protect information

17935 Unauthorised access to, or modification of, personal information

17940 Officer may use information

17945 This Division does not limit disclosure or use of information

Division 180—Disclosure or use of Higher Education Support Act information

1801 What this Division is about

1805 Meaning of Higher Education Support Act information

18010 Disclosure and use by Commonwealth officers

18015 Disclosure of information to TEQSA

18020 Disclosure of information to the National VET Regulator

18023 Disclosure of information to certain agencies

18025 Disclosure of information to other bodies

18028 Disclosure and use of information for the HELP program

18030 Use of information to conduct surveys

18035 This Division does not limit disclosure or use of information

Division 182—Other rules about information

1821 Minister may seek information from TEQSA and relevant VET regulator

Part 55—Tax file numbers

Division 184—Introduction

1841 What this Part is about

Division 187—What are the tax file number requirements for assistance under Chapter 3?

1871 Meeting the tax file number requirements

1872 Who is an appropriate officer?

1875 Student to notify tax file number when issued

Division 190—Who can the Commissioner notify of tax file number matters?

1901 When tax file numbers are issued etc.

1905 When tax file numbers are altered

19010 When tax file numbers are incorrectly notified—students with tax file numbers

19015 When tax file numbers are incorrectly notified—students without tax file numbers

19020 When applications are refused or tax file numbers are cancelled

Division 193—Other provisions relating to tax file numbers

1931 Giving information about tax file number requirements

1935 No entitlement to HECSHELP assistance for students without tax file numbers

19310 No entitlement to FEEHELP assistance for students without tax file numbers

19315 No entitlement to SAHELP assistance for students without tax file numbers

Part 56—Indexation

Division 198—Indexation

1981 What this Part is about

1985 The amounts that are to be indexed

19810 Indexing amounts

19815 Meaning of indexation factor

19820 Meaning of index number

Part 57—Review of decisions

Division 203—Introduction

2031 What this Part is about

Division 206—Which decisions are subject to review?

2061 Reviewable decisions etc.

2065 Deadlines for making reviewable decisions

20610 Decision maker must give reasons for reviewable decisions

Division 209—How are decisions reconsidered?

2091 Reviewer of decisions

2095 Reviewer may reconsider reviewable decisions

20910 Reconsideration of reviewable decisions on request

Division 212—Which decisions are subject to AAT review?

2121 AAT review of reviewable decisions

Part 58—Regulatory powers

2151 What this Part is about

2155 Monitoring powers

21510 Investigation powers

21515 Civil penalty provisions

21520 Infringement notices

21525 Enforceable undertakings

21530 Injunctions

21535 Appointment of investigators

21540 Delegation of regulatory powers

21545 Contravening offence and civil penalty provisions

21550 Certain references to higher education provider include references to agent

21555 Other enforcement action

Chapter 7—Miscellaneous

2381A Giving false or misleading information

2381 Delegations by Secretary

2385 Delegations by Minister

2386 Delegations by Higher Education Tuition Protection Director

2387 Review of operation of tuition protection

2388 Extent of Commissioner’s general administration of this Act

23810 Guidelines

23812 Appropriation

23815 Regulations

Schedule 1A—VET FEEHELP Assistance Scheme

1 What this Schedule is about

Part 1—VET providers

Division 1—Introduction

2 What this Part is about

3 The VET Guidelines

Division 3—What is a VET provider?

Subdivision 3A—General

4 Meaning of VET provider

5 When a body becomes or ceases to be a VET provider

Subdivision 3B—How are bodies approved as VET providers?

6 Approval by the Minister

7 The VET tuition assurance requirements

8 VET tuition assurance requirements exemption for approvals

9 Application

10 Minister may seek further information

11 Minister to decide application

12 Approvals are legislative instruments

12A Conditions of approval

12B Minister to cause VET provider to be notified of change in condition of approval

12C Variation of approval if body’s name changes

Division 4—What are the VET quality and accountability requirements?

Subdivision 4A—General

13 The VET quality and accountability requirements

Subdivision 4B—The VET financial viability requirements

14 Basic requirement

15 Financial information must be provided

16 Minister to have regard to financial information

Subdivision 4C—The VET quality requirements

17 Provider must maintain quality

Subdivision 4D—The VET fairness requirements

18 Equal benefits and opportunity requirements

19 Student grievance and review requirements

20 Tuition assurance requirements

21 VET providers to appoint review officers

22 Review officers not to review own decisions

23 Procedures relating to personal information

Subdivision 4E—The VET compliance requirements

23A Basic requirement

23B Entry procedure for students

23C Receiving requests for Commonwealth assistance

24 VET provider to provide statement of general information

25 Notice of events that affect provider’s ability to comply with VET quality and accountability requirements

25A Copy of notice given to National VET Regulator about material changes

26 Compliance assurance—provider

26A Compliance notices

Subdivision 4F—The VET fee requirements

27 Determining tuition fees for all students

27A Requirements in the VET Guidelines

28 Schedules of VET tuition fees

Division 5—Revocation of VET provider approvals

29 Revocation of approval

Division 5A—Civil penalty provisions and enforcement

Subdivision 5AA—Civil penalty provisions

39DA Civil penalty provisions

39DB Civil penalty—publishing information that suggests VET FEEHELP assistance is not a loan etc.

39DC Civil penalty—inappropriate inducements

39DD Appropriate and inappropriate inducements

39DE Civil penalty—failure to provide VET FEEHELP notices

39DF Civil penalty—failure to comply with student requests

39DG Civil penalty—charging a fee etc. for a student to cancel an enrolment or request for assistance

39DH Civil penalty—accepting requests for Commonwealth assistance etc. when student not entitled

39DI Civil penalty—failure to advise about requests etc.

39DJ Civil penalty—failure to apportion fees appropriately

39DK Civil penalty—failure to publish fees

39DL Civil penalty—failure to report data

Subdivision 5AB—Infringement notices

39EA Infringement notices

39EB Infringement officers

39EC Relevant chief executive

Subdivision 5AC—Monitoring and investigation powers

39FA Monitoring powers

39FB Monitoring powers—persons exercising relevant roles etc.

39FC Investigation powers

39FD Investigation powers—persons exercising relevant roles etc.

Subdivision 5AD—Other matters

39GA Appointment of investigators

39GB Functions and powers

39GC Delegation by relevant chief executive etc.

39GD Other enforcement action

Part 2—VET FEEHELP assistance

Division 6—Introduction

40 What this Part is about

41 The VET Guidelines

Division 7—Who is entitled to VET FEEHELP assistance?

Subdivision 7A—Basic rules

43 Entitlement to VET FEEHELP assistance

44 Citizenship or residency requirements

45 Course requirements

45A VET unit of study not undertaken as part of VET course of study

45B Entry procedure requirements

45C Request for Commonwealth assistance requirements

45D Notional VET FEEHELP accounts

45E Effect of VET FEEHELP account being in deficit at the end of a calendar year

Subdivision 7B—Recrediting HELP balances in relation to VET FEEHELP assistance

46 Main case of recrediting a person’s HELP balance in relation to VET FEEHELP assistance

46A Recrediting a person’s HELP balance in relation to VET FEEHELP assistance—unacceptable conduct by provider or provider’s agent

46AA Recrediting a person’s HELP balance in relation to VET FEEHELP assistance—inappropriate conduct by provider or provider’s agent

46B Recrediting a person’s HELP balance in relation to VET FEEHELP assistance—VET FEEHELP account in deficit at the end of a calendar year

47 Recrediting a person’s HELP balance—no tax file number

48 Special circumstances

49 Application period

50 Dealing with applications

51 Recrediting a person’s HELP balance in relation to VET FEEHELP assistance if provider ceases to provide course of which unit forms part

51A Implications for the student’s liability to the VET provider for the VET tuition fee

Division 8—How are amounts of VET FEEHELP assistance worked out?

52 The amount of VET FEEHELP assistance for a VET unit of study

53 Upfront payments

54 Amounts of VET FEEHELP assistance, HECSHELP assistance and FEEHELP assistance must not exceed the HELP balance

Division 9—How are amounts of VET FEEHELP assistance paid?

55 Payments

56 Effect of HELP balance being recredited

Part 3—Administration

Division 10—Introduction

57 What this Part is about

58 The VET Guidelines

Division 11—Payments by the Commonwealth

59 What this Division is about

60 Time and manner of payments

61 Advances

61A Amounts owed by VET providers may be set off against amounts payable under this Act or the VET Student Loans Act 2016

62 Rounding of amounts

Division 12—Administrative requirements on VET providers

63 What this Division is about

64 Notices

65 Correction of notices

66 Charging VET tuition fees

67 Determining census dates

68 Communications with the Commonwealth concerning students etc.

Division 13—Electronic communications

69 What this Division is about

70 Guidelines may deal with electronic communications

Division 14—Management of information

71 What this Division is about

72 Meaning of VET personal information

73 Use of VET personal information

74 Meanings of VET officer etc. and official employment

75 When information is disclosed in the course of official employment

76 Commissioner may disclose information

77 Oath or affirmation to protect information

78 Unauthorised access to, or modification of, VET personal information

78A Officer may use information

78B This Division does not limit disclosure or use of information

Division 15—Tax file numbers

Subdivision 15A—Introduction

79 What this Division is about

Subdivision 15B—What are the tax file number requirements for assistance under Part 2?

80 Meeting the tax file number requirements

81 Who is an appropriate officer?

82 Student to notify tax file number when issued

Subdivision 15C—Who can the Commissioner notify of tax file number matters?

83 When tax file numbers are issued etc.

84 When tax file numbers are altered

85 When tax file numbers are incorrectly notified—students with tax file numbers

86 When tax file numbers are incorrectly notified—students without tax file numbers

87 When applications are refused or tax file numbers are cancelled

Subdivision 15D—Other provisions relating to tax file numbers

88 Giving information about tax file number requirements

89 No entitlement to VET FEEHELP assistance for students without tax file numbers

Division 16—Review of decisions

Subdivision 16A—Introduction

90 What this Division is about

Subdivision 16B—Which decisions are subject to review?

91 Reviewable VET decisions etc.

92 Deadlines for making reviewable VET decisions

93 Decision maker must give reasons for reviewable VET decisions

Subdivision 16C—How are decisions reconsidered?

94 Reviewer of decisions

95 Reviewer may reconsider reviewable VET decisions

96 Reconsideration of reviewable VET decisions on request

Subdivision 16D—Which decisions are subject to AAT review?

97 AAT review of reviewable VET decisions

Part 4—Miscellaneous

97A Compensation for acquisition of property

98 Delegations by Secretary

99 VET Guidelines

Schedule 1—Dictionary

1 Definitions

2 Index numbers

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

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

Chapter 1Introduction

 

Division 1Preliminary

11  Short title

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

15  Commencement

 (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 11 and 15 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 110 to 23815

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.

110  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 161

3

student

Schedule 1

4

unit of study

Schedule 1

Division 2Objects

21  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 freedom of speech and academic freedom; 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; and

 (iv) the engagement with industry and the local community to enable graduates to thrive in the workforce;

  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 3Overview of this Act

31  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).

35  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 persons;

 (b) other grants for particular purposes;

 (c) grants for Commonwealth scholarships.

 (2) Higher education providers will be universities, selfaccrediting entities or non selfaccrediting entities.

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

310  Assistance to students (Chapter 3)

  Chapter 3 provides for the following assistance to students:

 (a) HECSHELP assistance for student contribution amounts;

 (b) FEEHELP assistance for tuition fees;

 (c) OSHELP assistance for overseas study;

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

315  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.

320  Administration (Chapter 5)

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

330  VET FEEHELP Assistance Scheme (Schedule 1A)

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

Division 5Application of Act to Table C providers

51  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 19C (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 19D (fairness requirements)

Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.

2A

Section 1966A (*tuition protection 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 19F (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 33 (FEEHELP 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 34 (OSHELP assistance)

Applies to eligible students of the *Australian branch of the provider.

5A

Part 35 (SAHELP 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 overseastrained 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 52 (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 53 (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 54 (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 55 (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 57 (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

 (c) students in their capacity as students of that provider or of that branch.

 (4) The provisions are as follows:

 (a) Part 22 (Commonwealth Grant Scheme);

 (aa) Part 22A (Indigenous student assistance grants);

 (b) Part 23 (Other grants);

 (c) Part 24 (Commonwealth scholarships);

 (d) Part 25 (Reduction and repayment of grants);

 (e) Part 32 (HECSHELP assistance);

 (f) Schedule 1A (VET FEEHELP Assistance Scheme).

Division 6Schedule 1A

61  Schedule 1A

  Schedule 1A has effect.

Chapter 2Grants for higher education assistance etc.

 

Division 8Introduction

81  What this Chapter is about

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

Part 21 sets out who are higher education providers (universities, selfaccrediting entities and non selfaccrediting 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 22 (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 22A to Table A providers and Table B providers to assist Indigenous persons; and

 other grants under Part 23 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 24.

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 25).

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 24.

Part 21Higher education providers

Division 13Introduction

131  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 selfaccrediting 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.

135  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 23810.

Division 16What is a higher education provider?

Subdivision 16AGeneral

161  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.

165  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 1622.

 (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 1625.

 (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 16BWhich bodies are listed providers?

1610  Listed providers

  The following are listed providers:

 (a) a *Table A provider;

 (b) a *Table B provider.

1615  Table A providers

 (1) The following are Table A providers:

 

Table A providers

Providers

Australian National University

Central Queensland University

Charles Darwin University

Charles Sturt University

Curtin University

Deakin University

Edith Cowan University

Federation University Australia

Flinders University

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 University of Adelaide

The University of Melbourne

The University of Notre Dame Australia

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 Wollongong

Victoria University

Western Sydney University

Australian Catholic University Limited

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.

1620  Table B providers

 (1) The following are Table B providers:

 

Table B providers

Providers

Bond University Limited

University of Divinity

Torrens University Australia Ltd

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

1622  Table C providers

 (1) The following are Table C providers:

 

Table C providers

Providers

Carnegie Mellon University, a nonprofit organisation established under Pennsylvania 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 51.

Subdivision 16CHow are bodies approved as higher education providers?

1625  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 *selfaccrediting entity; or

 (iii) a *non selfaccrediting entity; and

 (c) the Minister is satisfied that the body will meet the *tuition protection requirements (if applicable); 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 1640; 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).

1627  Body must be a registered higher education provider

  Despite section 1625, the Minister must not approve a body corporate as a higher education provider unless the body is a *registered higher education provider.

1630  The tuition protection requirements

  The tuition protection requirements are:

 (a) the requirements set out in Part 51A (including in the Higher Education Provider Guidelines made for the purposes of that Part); and

 (b) the requirements set out in the Higher Education Provider Guidelines for the purposes of this paragraph.

1640  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; and

 (c) must be accompanied by the fee (if any) prescribed by, or worked out in accordance with the method prescribed by, the Higher Education Provider Guidelines.

Note: The guidelines may prescribe different fees, or methods, for applications made by different kinds of applicant: see subsection 33(3A) of the Acts Interpretation Act 1901.

 (3) A fee prescribed, or worked out in accordance with a method prescribed, for the purposes of subsection (2) must not be such as to amount to taxation.

1645  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).

1650  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 1625(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 1645—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.

1655  Approvals are legislative instruments

 (1) A notice of approval under paragraph 1650(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.

1660  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 *FEEHELP assistance applies to the provider for a specified period;

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

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

 (d) that FEEHELP 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 FEEHELP assistance is unavailable.

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

1665  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

 (c) the period for which the condition is imposed.

1670  Variation of approval if body’s name changes

 (1) If a body corporate is approved as a higher education provider under section 1625 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 19What are the quality and accountability requirements?

Subdivision 19AGeneral

191  The quality and accountability requirements

  The quality and accountability requirements are:

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

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

 (c) the *fairness requirements (see Subdivision 19D); and

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

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

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

Subdivision 19BThe financial viability requirements

195  Basic requirement

  A higher education provider:

 (a) must be financially viable; and

 (b) must be likely to remain financially viable.

1910  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) must 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.

1912  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 1910; and

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

Subdivision 19CThe quality requirements

1915  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 19DThe fairness requirements

1930  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.

1935  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 1241 on account of amounts of *OSHELP 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 1101 on account of amounts of *FEEHELP 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.

1936  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.

1936A  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.

1936B  Engaging in coldcalling

 (1) This section applies if a higher education provider coldcalls 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 assistance payable under Chapter 3 for students undertaking the unit of study or *course of study.

Civil penalty: 60 penalty units.

 (3) For the purposes of this section, coldcalling 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 coldcalling for the purposes of this section.

1936C  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 assistance payable under Chapter 3 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.

1936D  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.

1936E  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.

1937  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

 (c) either:

 (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

 (c) that is not more than the amount worked out for that period for the person in accordance with those 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 23810.

Note 2: The amount of $263 mentioned in paragraph (5)(e) is indexed under Part 56.

Note 3: Paragraph 19102(3)(b) prevents a student services and amenities fee from being a fee as defined in section 19102.

 (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.

1938  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;

 (c) supporting the administration of a club most of whose members are 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

(c) expenditure by the higher education provider on infrastructure for the provision of the service.

 (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 *SAHELP 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 SAHELP assistance paid to a provider is an amount paid to the provider as a student services and amenities fee because, under section 1281, the SAHELP assistance is paid to discharge the student’s liability to pay the fee.

 (7) Subsection (6) does not limit subsection 16410(2).

Note: Subsection 16410(2) applies to an advance on account of an amount the conditions that would apply to payment of the amount.

1942  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.

1945  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 nonacademic matters; and

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

 (c) a review procedure for dealing with review of decisions made by the provider:

 (i) under subsection 3612(2) or 3620(1); or

 (ii) relating to assistance under Chapter 3.

Note: Part 57 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 subsection 3612(2) or 3620(1); 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.

1950  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 subsection 3612(2) or 3620(1); 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 2381(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:

 (c) under subsection 3612(2) or 3620(1); or

 (d) relating to assistance under Chapter 3.

1955  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.

1960  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 subsection 3612(2) or 3620(1) 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 19EThe compliance requirements

1965  Basic requirements

 (1) A higher education provider must comply with:

 (a) this Act and the regulations; and

 (b) the Guidelines made under section 23810 that apply to the provider; and

 (c) a condition imposed on the provider’s approval as a higher education provider.

 (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.

1966  Higher education provider charge

 (1) A higher education provider must pay the following when it is due and payable by the provider:

 (a) *higher education provider charge;

 (b) any penalty for late payment of higher education provider charge.

Note: Higher education provider charge is imposed by the Higher Education Support (Charges) Act 2019.

 (2) The Higher Education Provider Guidelines may make provision for, or in relation to, all or any of the following matters:

 (a) the issue of notices setting out the amount of *higher education provider charge payable by a provider;

 (b) when higher education provider charge is due and payable;

 (c) the issue of notices extending the time for payment of higher education provider charge;

 (d) penalties for late payment of higher education provider charge;

 (e) to whom higher education provider charge and any penalties for late payment are payable;

 (f) the refund, remission or waiver of higher education provider charge or penalties for late payment;

 (g) the review of decisions made under the Higher Education Provider Guidelines in relation to the collection or recovery of higher education provider charge;

 (h) any other matters relating to the collection or recovery of higher education provider charge.

1966A  Tuition protection requirements

 (1) A higher education provider to whom Part 51A applies must comply with the *tuition protection requirements.

Note: See section 1665 for the providers to whom Part 51A applies.

Civil penalty: 60 penalty units.

 (2) A higher education provider to whom Part 51A applies must pay the following when it is due and payable by the provider:

 (a) *HELP tuition protection levy;

 (b) any penalty for late payment of HELP tuition protection levy.

Note: HELP tuition protection levy is imposed by the Higher Education Support (HELP Tuition Protection Levy) Act 2020.

 (3) The Higher Education Provider Guidelines may make provision for, or in relation to, all or any of the following matters:

 (a) the issue of notices setting out the amount of *HELP tuition protection levy payable by a provider;

 (b) when HELP tuition protection levy is due and payable;

 (c) the issue of notices extending the time for payment of HELP tuition protection levy;

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

 (e) to whom HELP tuition protection levy and any penalties for late payment are payable;

 (f) the refund, remission or waiver of HELP tuition protection levy or penalties for late payment;

 (g) the review of decisions made under the Higher Education Provider Guidelines in relation to the collection or recovery of HELP tuition protection levy;

 (h) any other matters relating to the collection or recovery of HELP tuition protection levy.

1967  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 22 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 23810.

 (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

 (c) requirements relating to the representation and advocacy of the interests of students.

 (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 1965(1) does not apply in relation to the Student Services, Amenities, Representation and Advocacy Guidelines.

1970  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 1995.

 (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.

1971  Cooperation with HESA and TEQSA investigators

 (1) A higher education provider must cooperate 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.

1972  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.

1973  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.

1975  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.

1977  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:

 (c) the provider’s authority conferred by or under the *TEQSA Act to selfaccredit one or more *courses of study; or

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

Civil penalty: 60 penalty units.

1978  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 1977, the provider need not inform the Minister of the event under this section.

1980  Compliance assurance

 (1) The Minister may require a higher education 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;

 (c) the *compliance 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 cooperate 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 cooperate 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.

1982  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 23810 that apply to the provider;

 (c) a condition imposed on the provider’s approval as a higher education 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 noncompliance or possible noncompliance; and

 (c) specify action that the provider must take, or refrain from taking, in order to address the noncompliance or possible noncompliance; 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 noncompliance or possible noncompliance is of a minor or major nature;

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

 (c) the provider’s history of compliance with:

 (i) this Act and the regulations; and

 (ii) the Guidelines made under section 23810 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 noncompliance or possible noncompliance, 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 19FWhat are the contribution and fee requirements?

1985  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.

1987  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.

1990  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.

1995  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 1987 and 1990 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 1987—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 1990—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:

 (c) by written notice given to the Minister:

 (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 1987(3) when varying a student contribution amount.

Note 2: The provider must comply with subsection 1990(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.

19100  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.

19102  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

 (c) payable in respect of residential accommodation; 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 10450.

19105  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 1990(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 19GThe compact and academic freedom requirements

19110  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

 (c) a statement of the provider’s strategies for:

 (i) undertaking research; and

 (ii) research training; and

 (iii) innovation; and

 (d) a statement of the provider’s strategies for engaging with industry; and

 (e) a statement of the provider’s strategies for improving equality of opportunity in higher education.

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.

19115  Provider to have policy upholding freedom of speech and academic freedom

  A higher education provider that is a *Table A provider or a *Table B provider must have a policy that upholds freedom of speech and academic freedom.

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

Subdivision 22AGeneral

221  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 22AA, 22B or 22D; or

 (b) while the approval is suspended under section 2230; 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 22AARevocation of approval if registration ceases or winding up order made

222  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.

223  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.

 (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.

Subdivision 22BRevocation for cause

225  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 1640 for approval as a higher education provider contained material that was false or misleading; and

 (b) complies with the requirements of section 2220.

227  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

 (c) the Minister complies with the requirements of section 2220.

 (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 2220.

2210  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

 (c) the Minister complies with the requirements of section 2220.

Bodies that cease to be selfaccrediting entities

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

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

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

 (c) the Minister complies with the requirements of section 2220.

Selfaccrediting 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 *selfaccrediting 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 selfaccredit a *course of study that the body was authorised to selfaccredit at that time; and

 (c) the Minister complies with the requirements of section 2220.

Bodies that cease to be non selfaccrediting entities

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

 (a) the body was a *non selfaccrediting 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 selfaccrediting entity; and

 (c) the Minister complies with the requirements of section 2220.

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 *selfaccrediting entity or a *non selfaccrediting 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

 (c) the Minister complies with the requirements of section 2220.

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 1625(1)(a); or

 (ii) paragraph 1625(1)(da); and

 (b) the Minister complies with the requirements of section 2220.

2215  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 22, 22A, 23 or 24; 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

 (c) complies with the requirements of section 2220.

Note: Section 1660 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;

 (c) the impact that the breach may have on the body’s students;

 (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.

2217  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 2220.

 (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 1625(4). The Minister may take into account any other matters he or she considers relevant.

Subdivision 22CProcess for decisions on revocation under Subdivision 22B

2220  Process for revoking approval

 (1) Before revoking a body’s approval as a higher education provider under Subdivision 22B, 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 22B, 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 22B. 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.

2225  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 22B 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 2220(5).

 (2) The determination may be included in the notice of revocation under subsection 2220(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.

2230  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 22B 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

 (c) inviting the body to respond to the Minister, in writing, within 14 days of the date of the notice.

 (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 2220 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.

2232  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 2230 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 2230(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 22DRevocation of approval on application

2240  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 22ENotice of approval or revocation ceasing to have effect under the Legislation Act 2003

2245  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.

2250  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

 (c) affect any penalty, forfeiture or punishment incurred in respect of the body 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 22Commonwealth Grant Scheme

Division 27Introduction

271  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 25).

Note: This Part does not apply to Table C providers: see section 51.

275  Commonwealth Grant Scheme Guidelines

  The grants payable under this Part are also dealt with in the Commonwealth Grant Scheme Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The Commonwealth Grant Scheme Guidelines are made by the Minister under section 23810.

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

Subdivision 30ABasic rules

301  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 3025 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 made an allocation under section 3010 to the provider for that year;

 (iii) the provider has entered into a funding agreement with the Commonwealth under section 3025 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 30BAllocation of places

3010  Allocation of places

 (1) The Minister may allocate a specified number of Commonwealth supported places for a year to:

 (a) a *Table A provider in relation to *designated higher education courses; and

 (b) a higher education provider referred to in subparagraph 301(1)(b)(i).

Note: The Minister does not allocate places to Table A providers in relation to higher education courses or demand driven higher education courses.

 (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; and

 (c) the number of places (if any) for each *funding cluster that are in respect of *nongrandfathered students; and

 (d) the number of places (if any) for each funding cluster (other than the *first funding cluster and the *second funding cluster) that are in respect of *grandfathered students; and

 (e) the number of places (if any) for each *grandfathered funding cluster part that are in respect of grandfathered students.

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

3012  Designated higher education courses

 (1) Each of the following is a designated higher education course in relation to a *Table A provider:

 (a) a *course of study in medicine;

 (b) a *course of study of a kind determined under subsection (2).

 (2) The Minister may, by legislative instrument, determine a kind of *course of study for the purposes of paragraph (1)(b).

3015  Funding clusters

  The funding clusters are:

 

Funding clusters

Item

Funding clusters

1

Law, Accounting, Administration, Economics, Commerce, Communications, Society and Culture

2

Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology, Professional Pathway Social Work

3

Nursing, Indigenous and Foreign Languages, Engineering, Surveying, Environmental Studies, Science

4

Agriculture, Medicine, Dentistry, Veterinary Science, Pathology

3020  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;

(c) increasing the number of persons in particular regions undertaking courses of study.

Subdivision 30CFunding agreements

3025  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 3665.

 (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 3615(2) (or could have made such a determination but for subsection 3615(3)).

Note: The Minister has the power under subsection 3615(2) to determine that students are not to be enrolled as Commonwealth supported students in particular courses. The determination is disallowable (see subsection 3615(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 for a *funding cluster, or a *grandfathered funding cluster part, 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 nonresearch *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

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

 (e) the maximum amount of transition fund 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.

3027  Specification of maximum basic grant amounts in funding agreements

Maximum basic grant amounts for Table A providers

 (1) Subject to subsections (2), (3) and (5), a funding agreement for a higher education provider that is a *Table A provider:

 (a) must specify an amount as the maximum basic grant amount payable to the provider for a *grant year for *higher education courses; and

 (b) may specify an amount as the maximum basic grant amount payable to the provider for a *grant year for each of the following:

 (i) *designated higher education courses;

 (ii) *demand driven higher education courses.

Table A providers—maximum basic grant amount for higher education courses

 (2) If a funding agreement for a *Table A provider is in respect of 2021, 2022 and 2023, the maximum basic grant amount for the provider for each of those years for *higher education courses must not be less than the amount specified in the Commonwealth Grant Scheme Guidelines for the purposes of this subsection for the provider for each of those years for those courses.

 (3) If a funding agreement for a *Table A provider is in respect of other later years, the maximum basic grant amount for the provider for each of those years for *higher education courses must not be less than:

 (a) for 2024—the amount specified in the Commonwealth Grant Scheme Guidelines for the purposes of this paragraph for the provider for that year for those courses; and

 (b) for any other later year—the maximum basic grant amount specified in the provider’s funding agreement for the preceding year for those courses.

 (4) Without limiting subsection (2) and paragraph (3)(a), the Commonwealth Grant Scheme Guidelines may:

 (a) specify different amounts for different years for the purposes of that subsection; and

 (b) specify different amounts for different *Table A providers for the purposes of that subsection or paragraph.

Table A providers—maximum basic grant amount for designated higher education courses

 (5) The maximum basic grant amount for a *Table A provider for a *grant year for *designated higher education courses must not be less than the amount worked out for the year for those courses using the method statement set out in paragraph 335(3)(b) with the following modifications:

 (a) read a reference in step 1 of that statement to places provided by the provider in a *funding cluster as a reference to places allocated under section 3010 to the provider in that funding cluster;

 (b) disregard paragraph (a) of that step.

Maximum basic grant amount for nonTable A providers

 (6) Subject to subsection (7), a funding agreement for a higher education provider (other than a *Table A provider) may specify an amount as the maximum basic grant amount payable to the provider for a *grant year.

 (7) The maximum basic grant amount for a higher education provider (other than a *Table A provider) for a *grant year must not be less than the amount worked out for the year using the method statement set out in paragraph 335(7)(b) with the following modifications:

 (a) read a reference in steps 1, 2 and 3 of that statement to places provided by the provider in a *funding cluster or a *grandfathered funding cluster part as a reference to places allocated under section 3010 to the provider in that funding cluster or grandfathered funding cluster part;

 (b) disregard paragraph (a) of each of those steps.

3028  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 33How are grant amounts worked out?

Subdivision 33ABasic rule

331  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 *total basic grant amount for the provider for that year under Subdivision 33B; and

 (b) adding:

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

 (iv) the amount of any transition fund 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 33D.

Note: Part 51 deals with how payments can be made.

Subdivision 33BTotal basic grant amounts

335  Total basic grant amounts

Total basic grant amount for Table A providers

 (1) The total basic grant amount for a *Table A provider for a year is the sum of the following amounts:

 (a) the amount for *higher education courses (see subsection (2));

 (b) the amount for *designated higher education courses (see subsections (3) and (4));

 (c) the amount for *demand driven higher education courses (see subsections (5) and (6)).

Table A providers—amount for higher education courses

 (2) For the purposes of paragraph (1)(a), the amount for *higher education courses is the lesser of:

 (a) the *maximum basic grant amount for the year for those courses that is specified in the *Table A provider’s funding agreement; and

 (b) the amount worked out for the year using the following method statement.

Method statement

Step 1. For each *funding cluster in which the provider has provided places in those courses in respect of *nongrandfathered students, multiply:

 (a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by

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

Step 2. For each *funding cluster (other than the *first funding cluster and the *second funding cluster) in which the provider has provided places in those courses in respect of *grandfathered students, multiply:

 (a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by

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

Step 3. For each *grandfathered funding cluster part in which the provider has provided places in those courses in respect of *grandfathered students, multiply:

 (a) the *number of Commonwealth supported places provided by the provider in those courses in that grandfathered funding cluster part in respect of those students; by

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

Step 4. Add together all of the amounts worked out under steps 1, 2 and 3.

Table A providers—amount for designated higher education courses

 (3) For the purposes of paragraph (1)(b) and subject to subsection (4), the amount for *designated higher education courses is the lesser of:

 (a) the *maximum basic grant amount for the year for those courses that is specified in the *Table A provider’s funding agreement; and

 (b) the amount worked out for the year using the following method statement.

Method statement

Step 1. For each *funding cluster in which the provider has provided places in those courses, multiply the *Commonwealth contribution amount for a place in that funding cluster by the lesser of the following:

 (a) the number that is the sum of the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of *nongrandfathered students and in respect of *grandfathered students;

 (b) the number of Commonwealth supported places allocated to the provider for that funding cluster.

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

 (4) If a *maximum basic grant amount for the year for the *designated higher education courses is not specified in the *Table A provider’s funding agreement, the amount for those courses is the amount worked out for the year using the method statement set out in paragraph (3)(b).

Table A providers—amount for demand driven higher education courses

 (5) For the purposes of paragraph (1)(c) and subject to subsection (6), the amount for *demand driven higher education courses is the lesser of:

 (a) the *maximum basic grant amount for the year for those courses that is specified in the *Table A provider’s funding agreement; and

 (b) the amount worked out for the year using the following method statement.

Method statement

Step 1. For each *funding cluster in which the provider has provided places in those courses in respect of *nongrandfathered students, multiply:

 (a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by

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

Step 2. For each *funding cluster (other than the *first funding cluster and the *second funding cluster) in which the provider has provided places in those courses in respect of *grandfathered students, multiply:

 (a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by

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

Step 3. For each *grandfathered funding cluster part in which the provider has provided places in those courses in respect of *grandfathered students, multiply:

 (a) the *number of Commonwealth supported places provided by the provider in those courses in that grandfathered funding cluster part in respect of those students; by

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

Step 4. Add together all of the amounts worked out under steps 1, 2 and 3.

 (6) If a *maximum basic grant amount for the year for the *demand driven higher education courses is not specified in the *Table A provider’s funding agreement, the amount for those courses is the amount worked out for the year using the method statement set out in paragraph (5)(b).

Total basic grant amount for nonTable A providers

 (7) Subject to subsection (8), the total basic grant amount for a higher education provider (other than a *Table A provider) for a year is the lesser of:

 (a) the *maximum basic grant amount for the year that is specified in the provider’s funding agreement; and

 (b) the amount worked out for the year using the following method statement.

Method statement

Step 1. For each *funding cluster in which the provider has provided places in respect of *nongrandfathered students, multiply the *Commonwealth contribution amount for a place in that funding cluster by the lesser of the following:

 (a) the *number of Commonwealth supported places provided by the provider in that funding cluster in respect of those students;

 (b) the number of Commonwealth supported places allocated to the provider for that funding cluster in respect of those students.

Step 2. For each *funding cluster (other than the *first funding cluster and the *second funding cluster) in which the provider has provided places in respect of *grandfathered students, multiply the *Commonwealth contribution amount for a place in that funding cluster by the lesser of the following:

 (a) the *number of Commonwealth supported places provided by the provider in that funding cluster in respect of those students;

 (b) the number of Commonwealth supported places allocated to the provider for that funding cluster in respect of those students.

Step 3. For each *grandfathered funding cluster part in which the provider has provided places in respect of *grandfathered students, multiply the *grandfathered Commonwealth contribution amount for a place in that grandfathered funding cluster part by the lesser of the following:

 (a) the *number of Commonwealth supported places provided by the provider in that part in respect of those students;

 (b) the number of Commonwealth supported places allocated to the provider for that part in respect of those students.

Step 4. Add together all of the amounts worked out under steps 1, 2 and 3.

 (8) If a *maximum basic grant amount for the year is not specified in the funding agreement of the higher education provider referred to in subsection (7), the total basic grant amount for the provider is the amount worked out for the year using the method statement set out in paragraph (7)(b).

3310  Commonwealth contribution amounts and grandfathered Commonwealth contribution amounts

 (1) The Commonwealth contribution amount for a place in a *funding cluster is the amount specified in the following table in relation to a place in the funding cluster.

 

Commonwealth contribution amounts

Item

For a place in this funding cluster:

The amount is:

1

Law, Accounting, Administration, Economics, Commerce, Communications, Society and Culture

$1,100

2

Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology, Professional Pathway Social Work

$13,250

3

Nursing, Indigenous and Foreign Languages, Engineering, Surveying, Environmental Studies, Science

$16,250

4

Agriculture, Medicine, Dentistry, Veterinary Science, Pathology

$27,000

Note: Commonwealth contribution amounts are indexed under Part 56.

 (2) The grandfathered Commonwealth contribution amount for a place in a *grandfathered funding cluster part is the amount specified in the following table in relation to a place in the grandfathered funding cluster part.

 

Grandfathered Commonwealth contribution amounts

Item

For a place in this grandfathered funding cluster part:

The amount is:

1

Law, Accounting, Administration, Economics or Commerce

$2,237

2

Communications

$13,547

3

The Social Studies or Behavioural Science subpart of the Society and Culture part of the first funding cluster

$11,015

4

Any other subpart of the Society and Culture part of the first funding cluster

$6,226

5

Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment or Computing

$13,250

6

Visual and Performing Arts

$13,547

7

Professional Pathway Psychology or Professional Pathway Social Work

$11,015

Note: Grandfathered Commonwealth contribution amounts are indexed under Part 56.

3330  Working out the number of Commonwealth supported places provided

 (1) The number of Commonwealth supported places that a higher education provider has provided in respect of *nongrandfathered students 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 any unit that is an *ineligible work experience unit for a *nongrandfathered student) 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 nongrandfathered students enrolled with the provider in that unit as *Commonwealth supported students.

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

 (1A) The number of Commonwealth supported places that a higher education provider has provided in respect of *grandfathered students 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 any unit that is an *ineligible work experience unit for a *grandfathered student) 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 grandfathered students 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 16928(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) or (1A) (as the case requires) to the units of study mentioned in column 2 of that item.

 

Working out the number of Commonwealth supported places provided

Item

Column 1

To work out the number of Commonwealth supported places provided in …

Column 2

apply the method statement in subsection (1) or (1A) (as the case requires) to …

1

a *funding cluster or a *grandfathered funding cluster part

units provided by the provider in the funding cluster or the grandfathered funding cluster part.

2

*higher education courses in a *funding cluster or a *grandfathered funding cluster part

units provided by the provider in the funding cluster, or the grandfathered funding cluster part, in those courses.

3

*designated higher education courses in a *funding cluster

units provided by the provider in the funding cluster in those courses.

4

*demand driven higher education courses in a *funding cluster or a *grandfathered funding cluster part

units provided by the provider in the funding cluster, or the grandfathered funding cluster part, in those courses.

3335  Funding clusters, or parts of funding clusters, in which units are included

  The Commonwealth Grant Scheme Guidelines may specify:

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

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

Subdivision 33CAdjustments

3337  Adjustments for breach of section 1937

 (1) A higher education provider’s *total basic grant amount for a year is reduced by an adjustment in respect of the year if, on one or more occasions during the year, the provider breaches a condition imposed under section 1937.

 (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 56.

total places provided is the sum of the following:

 (a) the *number of Commonwealth supported places that the higher education provider has provided in respect of *nongrandfathered students for the year;

 (b) the number of Commonwealth supported places that the higher education provider has provided in respect of *grandfathered students for the year.

 (3) This section does not apply in relation to a breach of a condition imposed under section 1937 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

 (c) the Minister has given a written notice to the provider under subsection (4); 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 1937; 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 *total basic grant amount for the 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 1937 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 *total basic grant amount for a year.

Subdivision 33DSpecial purpose advances

3340  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 331 in respect of:

 (a) the year next following that year; or

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

 (c) the 3 years next following that year;

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 36What are the conditions of receiving a grant?

Subdivision 36AGeneral

361  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 36BConditions relating to Commonwealth supported students

365  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 this Subdivision 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.

 (5) In addition, the person is not a *Commonwealth supported student in relation to the unit of study if the *Secretary determines that the person is not a genuine student in relation to the unit.

 (6) In determining whether a person is a genuine student for the purposes of subsection (5), the *Secretary must have regard to the matters (if any) specified in the Higher Education Provider Guidelines.

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

3610  Advice on whether a person is a Commonwealth supported student—general

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 3025 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

 (ba) the person has been assessed by the higher education provider, in accordance with section 1942, as academically suited to undertake the unit; 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; and

 (f) if:

 (i) the census date for the unit is on or after 1 January 2021 and before 1 January 2023 and the person commenced the course of study on or after 1 January 2021; or

 (ii) the census date for the unit is on or after 1 January 2023;

  the person has a *student identifier immediately before the census date.

 (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

 (c) a *permanent visa holder who will be resident within Australia for the duration of the unit.

 (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 nonTable 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.

3612  Advice on whether a person is a Commonwealth supported student—unreasonable study load

 (1) A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study (the new unit) if the sum of the following amounts is more than 2:

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

 (b) the sum of the EFTSL values of each other unit of study:

 (i) that has a *census date during the 12 month period ending on the census date for the new unit; and

 (ii) for which the person is entitled to *HECSHELP assistance or *FEEHELP assistance, or would be so entitled but for the previous operation of this section, or section 1041AA, in relation to the other unit of study.

 (2) Subsection (1) does not apply if the higher education provider determines that undertaking the new unit will not impose an unreasonable study load on the person, having regard to:

 (a) whether the person has the demonstrated capacity and capability to successfully complete units of study that have a total EFTSL value of more than 2; and

 (b) the matters (if any) specified by the Higher Education Provider Guidelines for the purposes of this paragraph.

 (3) A decision of a higher education provider under subsection (2) must be in accordance with the requirements (if any) specified in the Higher Education Provider Guidelines.

 (4) If a determination under subsection (2) is made in writing, the determination is not a legislative instrument.

3615  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 overseastrained professionals; or

 (c) the unit forms part of a course to which a determination under subsection (2) applies.

 (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.

 (5) 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 provider has completed any part of a *request for Commonwealth assistance that the person is required to complete; and

 (b) the request relates to the person enrolling in the unit of study or, where the unit forms part of a *course of study undertaken with the provider, the course of study.

3620  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 3621); 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 *HECSHELP debt in relation to the unit; and

 (f) either:

 (i) the application is made before the end of the application period under section 3622; 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 HECSHELP debt of a person to whom this section applies is remitted under subsection 1375(4).

Note 2: A decision that this section does not apply to a person is reviewable under Part 57.

 (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 *HECSHELP 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 as a *replacement unit; or

 (b) it is determined that section 3624A applies to the person.

 (4) The Higher Education Provider Guidelines may, in setting out the *tuition protection 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

 (c) the person (if any) who is to pay the amounts.

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

3621  Special circumstances

 (1) For the purposes of paragraph 3620(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 subsections 9730(2) and 10430(2) (recrediting a person’s HELP balance).

3622  Application period

 (1) For the purposes of subparagraph 3620(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.

3623  Dealing with applications

 (1) If:

 (a) the application under paragraph 3620(1)(e) is made before the end of the application period under section 3622; 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.

3624A  Providers to repay amounts—provider defaults

 (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 *defaulted in relation to the person; and

 (d) Part 51A applied to the provider at the time the provider defaulted in relation to the person; and

 (e) any of the following apply:

 (i) the provider identifies, under paragraph 16625(4)(b) that there is no suitable *replacement unit or *replacement course for the person;

 (ii) the person elects, under subparagraph 16625(7)(a)(iii), to have an amount equal to the amounts of *HECSHELP assistance that the person received for the unit recredited to the student’s *HELP balance;

 (iii) the *Higher Education Tuition Protection Director decides, under paragraph 16626B(2)(b) that the Director is not satisfied that there is a suitable replacement course for the person;

 (iv) the person elects, under subparagraph 16626B(4)(a)(iii), to have an amount equal to the amounts of HECSHELP assistance that the person received for the unit recredited to the student’s HELP balance.

Note: A HECSHELP debt of a person to whom this section applies is remitted under subsection 1375(4).

 (2) The provider must pay to the Commonwealth an amount equal to any *HECSHELP 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.

3624B  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 1935(1).

Note: A HECSHELP debt of a person to whom this section applies is remitted under subsection 1375(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 *HECSHELP assistance to which the person was entitled for the unit.

3624BB  Providers to repay amounts—provider completes request for assistance

 (1) This section applies to a person if the person’s *HELP balance is recredited with an amount relating to *HECSHELP assistance for a unit of study under section 9745.

Note: The person’s HECSHELP debt relating to the unit is taken to be remitted if the person’s HELP balance is recredited in relation to the unit under section 9745: see section 1375.

 (2) The higher education 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 the person’s *student contribution amount for the unit; and

 (b) pay to the Commonwealth an amount equal to any *HECSHELP 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 as a *replacement unit; or

 (b) it is determined that section 3624A applies to the person in relation to the unit.

 (4) The Higher Education Provider Guidelines may, in setting out the *tuition protection 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

 (c) the person (if any) who is to pay the amounts.

3624BC  Providers to repay amounts—person not entitled to assistance

 (1) This section applies to a person if the person’s *HELP balance is recredited with an amount relating to *HECSHELP assistance for a unit of study under section 9750.

Note: The person’s HECSHELP debt relating to the unit is taken to be remitted if the person’s HELP balance is recredited in relation to the unit under section 9750: see section 1375.

 (2) The higher education 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 the person’s *student contribution amount for the unit; and

 (b) pay to the Commonwealth an amount equal to any *HECSHELP 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 as a *replacement unit; or

 (b) it is determined that section 3624A applies to the person in relation to the unit.

 (4) The Higher Education Provider Guidelines may, in setting out the *tuition protection 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

 (c) the person (if any) who is to pay the amounts.

3624C  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 3612(2) or 3620(1), section 3621, 3622 or 3623 or subsection 3624A(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 36CConditions relating to enrolment

3625  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 Subdivision 36B, 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

 (c) the host provider is not prohibited, under Subdivision 36B, from so advising the person.

 (3) If a higher education provider has, under subparagraph 365(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.

3630  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 Subdivision 36B, 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

 (c) all of the following apply:

 (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 3010 in respect of that national priority for the year in which the person is enrolled in the unit; and

 (c) the provider is not prohibited, under Subdivision 36B, from advising the person that the person is a Commonwealth supported student in relation to 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.

3640  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 *HECSHELP 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 36DConditions relating to student contribution amounts

3645  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:

  

3650  Provider must not accept upfront payments of more than 90% of student contribution amounts

  A higher education provider must not accept, from a person who:

 (a) is enrolled in a unit of study with the provider; and

 (b) is entitled to *HECSHELP assistance for the unit;

*upfront payments in relation to the unit totalling more than 90% of the person’s *student contribution amount for the unit.

Note: For entitlement to HECSHELP assistance: see Division 90.

Subdivision 36EConditions relating to tuition fees

3655  Tuition fees for nonCommonwealth 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 the highest *student contribution amount that the provider would charge any person who is a *Commonwealth supported student in relation to the unit.

 (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 the *student contribution amount referred to in subsection (1).

 (3) If a person:

 (a) is enrolled in study with a higher education provider on a *nonaward basis; and

 (b) could have enrolled in that study as a unit of study if the enrolment were not on a nonaward 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:

 (c) who may enrol in the study as a unit of study; and

 (d) who is a *Commonwealth supported student in relation to the unit.

Subdivision 36FOther conditions

3660  Providers to meet the quality and accountability requirements

  A higher education provider must meet the *quality and accountability requirements.

3665  Providers to comply with funding agreement

  A higher education provider must comply with any funding agreement the provider enters into under section 3025.

3670  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 3025 in respect of a period that includes that year.

Part 22AIndigenous student assistance grants

Division 38Indigenous student assistance grants

381  What this Part is about

Grants for assisting Indigenous persons 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 51.

385  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 23810.

3810  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 persons (who may or may not be students) to undertake higher education;

 (b) increasing the number of:

 (i) *Indigenous persons enrolling in courses leading to *higher education awards; and

 (ii) students who are Indigenous persons 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;

 (c) providing pastoral care;

 (d) implementing strategies to:

 (i) accelerate improvements to Indigenous student outcomes in higher education; or

 (ii) foster culturallysafe 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.

3815  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 3810(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 3845 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 56;

 (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.

3820  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.

3825  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.

3830  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.

3835  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 3815 in relation to a grant; or

 (b) the Minister approves, under section 3820, 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 3830 in respect of that grant.

3840  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.

3845  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 23Other grants

Division 41Other grants

411  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 51.

415  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 23810.

4110  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 and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item

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 Commonwealthsupported places for any year

13

Grants to encourage higher education providers to engage with industry

*Table A providers

 (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.

4115  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 4110(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 4145 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 56;

 (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.

4120  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.

4125  Conditions on grants

 (1) A grant is made on the following conditions:

 (a) if the grant is made under a program and the Other Grants Guidelines specify conditions that apply to a grant under that program—on the conditions provided for in the guidelines;

 (b) if the body receiving the grant is a higher education provider—on the condition that the body must meet the *quality and accountability requirements;

 (c) on such other conditions (if any) as the Minister determines in relation to the grant under subsection (2).

 (2) The Minister may, in writing, determine conditions in relation to a grant for the purposes of paragraph (1)(c).

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

4130  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.

4135  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 4115 in relation to a program; or

 (b) the Minister approves, under section 4120, 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 4130 in respect of that grant.

4140  Rollover of grant amounts

 (1) If a body to which a grant (the original grant) under this Part has been made in respect of a year fails to spend an amount (the unspent amount) of the grant before the end of the year, then:

 (a) unless paragraph (b) applies—the unspent amount is taken to be granted to the body under this Part in respect of the next following year; or

 (b) if the *Secretary specifies an amount (not greater than the unspent amount) in relation to the body and the original grant in a determination under subsection (1A)—the specified amount is taken to be granted to the body under this Part in respect of the next following year.

 (1A) The *Secretary may, in writing, make a determination for the purposes of paragraph (1)(b) specifying an amount in relation to a body and a grant.

 (2) The amount taken to be granted under subsection (1) is taken to be granted for the same purpose as the original grant.

 (3) The grant taken to be made under subsection (1) 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.

 (4) Subsection (1) does not apply to a body in relation to a grant if the *Secretary specifies the body in relation to the grant in a determination under subsection (5).

 (5) The *Secretary may, in writing, make a determination for the purposes of subsection (4) specifying a body in relation to a grant.

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

4145  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.

4195  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 4110):

 (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 oldage 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

 (c) in or in relation to a Territory.

 (2) A term used in this section and the Constitution has the same meaning in this section as it has in the Constitution.

Part 24Commonwealth scholarships

Division 46Commonwealth scholarships

461  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 51.

465  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 23810.

4610  Classes of Commonwealth scholarships

  There are 3 classes of *Commonwealth scholarships:

 (a) directlypaid standard scholarships; and

 (aa) indirectlypaid standard scholarships; and

 (b) postgraduate research scholarships.

Note: The Commonwealth Scholarships Guidelines set out the kinds of scholarships in each class.

4613  Eligibility of students to receive directlypaid standard Commonwealth scholarships

  If:

 (a) the Commonwealth Scholarships Guidelines provide for a particular kind of directlypaid standard *Commonwealth scholarship; and

 (b) those guidelines set out eligibility requirements for that kind of scholarship; and

 (c) a student of:

 (i) a *Table A provider; or

 (ii) a higher education provider to which subparagraph 301(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 directlypaid standard Commonwealth scholarship.

4615  Eligibility of higher education providers to receive grants for certain Commonwealth scholarships

 (1) *Table A providers, and higher education providers to which subparagraph 301(1)(b)(i) applies, are eligible to receive a grant from the Commonwealth to pay, as a benefit to students, indirectlypaid 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.

4620  Other matters relating to Commonwealth scholarships

 (1) The Commonwealth Scholarships Guidelines may provide for *Commonwealth scholarships.

Directlypaid standard Commonwealth scholarships

 (1A) Without limiting subsection (1), the Commonwealth Scholarships Guidelines may provide for the following matters in relation to directlypaid standard *Commonwealth scholarships:

 (a) the kinds of scholarships that are to be directlypaid standard Commonwealth scholarships;

 (b) the eligibility requirements for each kind of scholarship;

 (c) how the amounts of scholarships are to be determined;

 (d) the indexation of amounts of scholarships, using the method of indexation set out in Part 56;

 (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 4640 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 56;

 (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 indirectlypaid standard *Commonwealth scholarships and postgraduate research Commonwealth scholarships:

 (a) the kinds of scholarships that are to be indirectlypaid standard Commonwealth scholarships;

 (b) the kinds of scholarships that are to be postgraduate research Commonwealth scholarships;

 (c) which students are eligible for each kind of scholarship;

 (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 4640 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 56;

 (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 56;

 (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.

4625  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.

4630  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.

4635  Rollover of grant amounts

 (1) If a higher education provider to which a grant (the original grant) under this Part has been made in respect of a year fails to spend an amount (the unspent amount) of the grant before the end of the year, then:

 (a) unless paragraph (b) applies—the unspent amount is taken to be granted to the provider under this Part in respect of the next following year; or

 (b) if the *Secretary specifies an amount (not greater than the unspent amount) in relation to the provider and the original grant in a determination under subsection (1A)—the specified amount is taken to be granted to the provider under this Part in respect of the next following year.

 (1A) The *Secretary may, in writing, make a determination for the purposes of paragraph (1)(b) specifying an amount in relation to a higher education provider and a grant.

 (2) The amount taken to be granted under subsection (1) 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.

 (3) Subsection (1) does not apply to a higher education provider in relation to a grant if the *Secretary specifies the provider in relation to the grant in a determination under subsection (4).

 (4) The *Secretary may, in writing, make a determination for the purposes of subsection (3) specifying a higher education provider in relation to a grant.

 (5) A determination under subsection (1A) or (4) is not a legislative instrument.

4640  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 25Reduction and repayment of grants

Division 51Introduction

511  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 22, 22A, 23 or 24.

Note: This Part does not apply to Table C providers: see section 51.

Division 54In what circumstances may a grant be reduced or required to be repaid?

541  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 22, 22A, 23 or 24 is to be reduced; or

 (b) that an amount of a grant made to a body under Part 22, 22A, 23 or 24 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 22, 22A, 23 or 24, 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 545); and

 (c) the Minister complies with the requirements of Division 60.

545  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 541(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 1937—the amount of any adjustment under section 3337 in relation to that breach, or any other breach by the body, during the same year;

 (c) if the body is a higher education provider—the impact that the breach may have on the body’s students;

 (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.

Division 57What is the amount of a reduction or repayment?

571  Reduction in amount of grants

  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.

575  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.

 (4) The amount to be repaid is a debt owed to the Commonwealth by the body to which the grant was paid.

Division 60How are decisions reducing a grant or requiring repayment of a grant made?

601  Procedure prior to decision

 (1) Before making a decision under paragraph 541(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.

605  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 601(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.

6010  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 601(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 605(1).

Chapter 3Assistance to students

 

Division 65Introduction

651  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 22.

The 4 kinds of assistance available under this Chapter are:

 HECSHELP assistance—assistance to meet a student’s liability to pay student contribution amounts for units of study that are Commonwealth supported (see Part 32);

 FEEHELP assistance—assistance to meet a student’s liability to pay tuition fees for units of study that are not Commonwealth supported (see Part 33);

 OSHELP assistance—assistance to a student who, as part of his or her course of study, is to undertake study overseas (see Part 34);

 SAHELP assistance—assistance to a student on whom a student services and amenities fee is imposed (see Part 35).

The Commonwealth pays the assistance to the relevant higher education provider either (in the case of HECSHELP assistance, FEEHELP assistance and SAHELP assistance) to discharge the student’s liability, or (in the case of OSHELP 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 32HECSHELP assistance

Division 87Introduction

871  What this Part is about

A student may be entitled to HECSHELP 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 upfront 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 42.

Note 2: This Part does not apply to Table C providers: see section 51.

875  The HECSHELP Guidelines

  *HECSHELP assistance is also dealt with in the HECSHELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The HECSHELP Guidelines are made by the Minister under section 23810.

Division 90Who is entitled to HECSHELP assistance?

901  Entitlement to HECSHELP assistance

  A student is entitled to *HECSHELP 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 905; and

 (b) the *census date for the unit is on or after 1 January 2005; and

 (ba) the student’s *HELP balance is greater than zero; and

 (c) the student is a *Commonwealth supported student in relation to the unit; 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 either:

 (i) *meets the tax file number requirements (see section 1871); or

 (ii) pays, as one or more *upfront payments in relation to the unit, 90% of the student’s *student contribution amount for the unit; 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.

Note: For transitional provisions relating to paragraph (ba), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.

905  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

 (c) both:

 (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.

Division 93How are amounts of HECSHELP assistance worked out?

931  The amount of HECSHELP assistance for a unit of study

  The amount of *HECSHELP 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 *upfront payments made in relation to the unit.

Note: A lesser amount may be payable because of section 9320.

935  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 1987(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 that applies in respect of that person.

 (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.

9310  Maximum student contribution amount for a place

  The maximum student contribution amount for a place in a unit of study is the amount specified in respect of a person in the following table in relation to the *funding cluster in which the unit is included.

 

Maximum student contribution amounts for a place

Item

For a place in a unit of study included in this funding cluster:

The amount in respect of a nongrandfathered student is:

The amount in respect of a grandfathered student is:

1

Law, Accounting, Administration, Economics, Commerce, Communications, Society and Culture

$14,500.

(a) for a place in a unit in Law, Accounting, Administration, Economics or Commerce—$11,355; or

(b) for a place in a unit in Communications or Society and Culture—$6,804.

2

Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology or Professional Pathway Social Work

(a) for a place in a unit in Education, Clinical Psychology, English, Mathematics or Statistics—$3,950; or

(b) for a place in a unit in Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology or Professional Pathway Social Work—$7,950.

(a) for a place in a unit in Education, Clinical Psychology, English, Mathematics or Statistics—$3,950; or

(b) for a place in a unit in Allied Health, Other Health, Built Environment or Computing—$7,950; or

(c) for a place in a unit in Visual and Performing Arts, Professional Pathway Psychology or Professional Pathway Social Work—$6,804.

3

Nursing, Indigenous and Foreign Languages, Engineering, Surveying, Environmental Studies, Science

(a) for a place in a unit in Nursing or Indigenous and Foreign Languages—$3,950; or

(b) for a place in a unit in Engineering, Surveying, Environmental Studies or Science—$7,950.

(a) for a place in a unit in Nursing or Indigenous and Foreign Languages—$3,950; or

(b) for a place in a unit in Engineering, Surveying, Environmental Studies or Science—$7,950.

4

Agriculture, Medicine, Dentistry, Veterinary Science, Pathology

(a) for a place in a unit in Agriculture—$3,950; or

(b) for a place in a unit in Medicine, Dentistry or Veterinary Science—$11,300; or

(c) for a place in a unit in Pathology—$7,950.

(a) for a place in a unit in Agriculture—$3,950; or

(b) for a place in a unit in Medicine, Dentistry or Veterinary Science—$11,300; or

(c) for a place in a unit in Pathology—$7,950.

Note 1: The Commonwealth Grant Scheme Guidelines may specify how to determine the funding cluster, or the part of a funding cluster, in which units of study are included or the particular funding cluster, or the particular part of a particular funding cluster, in which a particular unit of study is included: see section 3335.

Note 2: Maximum student contribution amounts for places are indexed under Part 56.

9315  Upfront payments

 (1) An upfront 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 part of the student’s student contribution amount for the unit, other than a payment of *HECSHELP assistance under this Part.

 (2) The payment must be made on or before the *census date for the unit.

 (3) A payment made in relation to a unit of study for which a person is liable to pay the person’s *student contribution amount is not an upfront payment in relation to the unit to the extent that:

 (a) the payment; or

 (b) if other such payments have already been made in relation to the unit—the sum of the payment and all of those other payments;

exceeds 90% of the person’s *student contribution amount for the unit.

Note 1: For when the Commonwealth pays oneninth of the upfront payments made in relation to a unit of study, see sections 962 and 963.

Note 2: It is a condition of grants under Part 22 that a higher education provider not accept, from a student who is entitled to HECSHELP assistance for a unit of study, upfront payments in relation to the unit totalling more than 90% of a student’s student contribution amount for the unit: see section 3650.

9320  Amounts of HECSHELP assistance, FEEHELP assistance and VET FEEHELP assistance must not exceed the HELP balance

Amount of HECSHELP assistance for one unit

 (1) The amount of *HECSHELP assistance to which a student is entitled for a unit of study is an amount equal to the student’s *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 *HECSHELP assistance; or

 (ii) unit of study, with the same census date, for which the student is entitled to *FEEHELP assistance; or

 (iii) *VET unit of study, with the same census date, for which the student is entitled to *VET FEEHELP assistance; and

 (b) the amount of HECSHELP assistance to which the student would be entitled under section 931 for the unit would exceed that HELP balance.

Note 1: For transitional provisions relating to subparagraph (a)(i), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.

Note 2: The amount of a *VET student loan is limited by reference to the student’s HELP balance—see sections 8 and 20 of the VET Student Loans Act 2016. The student’s HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student—see section 12815.

Amount of HECSHELP assistance for more than one unit

 (2) If the sum of:

 (a) the amount of *HECSHELP assistance to which a student would be entitled under section 931 for a unit of study; and

 (b) any other amounts of:

 (i) HECSHELP 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) *FEEHELP assistance to which the student would be entitled under section 1071 for other units that have the same census date as that unit; and

 (iii) *VET FEEHELP 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 *HELP balance on the census date for the unit, then, despite subsection (1) of this section, the total amount of HECSHELP assistance, FEEHELP assistance and VET FEEHELP assistance to which the student is entitled for all of those units is an amount equal to that HELP balance.

Example: Kate has a HELP balance of $2,000, and is enrolled in 4 units with the same census date. The student contribution amount for each unit is $600. There are no upfront payments for the units. The total amount of HECSHELP assistance to which Kate is entitled for the units is $2,000, even though the total amount of the student contribution amounts for the units is $2,400.

Note 1: For transitional provisions relating to subparagraph (b)(i), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.

Note 2: The amount of a *VET student loan is limited by reference to the student’s HELP balance—see sections 8 and 20 of the VET Student Loans Act 2016. The student’s HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student—see section 12815.

 (3) If the student referred to in subsection (2) has enrolled in the units with more than one higher education provider or *VET provider, the student must notify each provider of the proportion of the total amount of *HECSHELP assistance, *FEEHELP assistance or *VET FEEHELP assistance that is to be payable in relation to the units in which the student has enrolled with that provider.

Division 96How are amounts of HECSHELP assistance paid?

Note: Part 51 deals generally with payments by the Commonwealth under this Act.

961  Payments to higher education providers—no upfront payment of student contribution amount

  If a student is entitled to an amount of *HECSHELP assistance for a unit of study with a higher education provider and no *upfront payments are made in relation to the unit, the Commonwealth must:

 (a) as a benefit to the student, lend to the student the amount of HECSHELP 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.

962  Payments to higher education providers—partial upfront payment of student contribution amount

Upfront payments made for one unit of study only

 (1) If:

 (a) a student is entitled to an amount of *HECSHELP assistance for a unit of study (the relevant unit) in which the student is enrolled with a higher education provider; and

 (b) one or more *upfront payments have been made in relation to the relevant unit; and

 (c) both of the following apply:

 (i) the amount of that upfront payment, or the sum of those upfront payments, is less than 90% of the student’s *student contribution amount for the relevant unit;

 (ii) the amount of that upfront payment, or the sum of those upfront payments, is $500 or more; and

 (d) either:

 (i) the student is not enrolled with a provider as a *Commonwealth supported student in relation to any other units of study that have the same *census date as the relevant unit; or

 (ii) if the student is so enrolled in relation to one or more such other units of study, no upfront payments have been made for any of those units;

the Commonwealth must pay the amount of HECSHELP assistance for the relevant unit in accordance with subsections (3) and (4).

Upfront payments made for more than one unit of study

 (2) If:

 (a) a student is entitled to an amount of *HECSHELP assistance for a unit of study (the relevant unit) in which the student is enrolled with a higher education provider; and

 (b) one or more *upfront payments have been made in relation to the relevant unit; and

 (c) the student is enrolled with the provider as a *Commonwealth supported student in relation to one or more other units of study that have the same *census date as the relevant unit; and

 (d) one or more upfront payments have been made in relation to one or more of those other units; and

 (e) both of the following apply:

 (i) the sum of the upfront payments made in relation to the relevant unit and those other units is less than 90% of the sum of the student’s *student contribution amounts for the relevant unit and those other units;

 (ii) the sum of the upfront payments made in relation to the relevant unit and those other units is $500 or more;

the Commonwealth must pay the amount of HECSHELP assistance for the relevant unit in accordance with subsections (3) and (4).

Payment of loan amount

 (3) The Commonwealth must:

 (a) as a benefit to the student, lend to the student an amount equal to the difference between the amount of *HECSHELP assistance for the relevant unit and the *HECSHELP discount for the relevant unit; and

 (b) pay to the provider the amount lent in discharge of that amount of the student’s liability to pay the student’s *student contribution amount for the relevant unit.

Payment of discount amount

 (4) The Commonwealth must, as a benefit to the student, pay to the provider an amount equal to the *HECSHELP discount for the relevant unit in discharge of that amount of the student’s liability to pay the student’s *student contribution amount for the relevant unit.

HECSHELP discount

 (5) The HECSHELP discount for a unit of study is an amount equal to oneninth of the *upfront payment, or the sum of all of the upfront payments made, in relation to the unit.

Example: Robert is required to pay a student contribution amount for a unit of study of $2,745 by 31 January 2021, and makes an upfront payment in relation to the unit of $900 on 20 January 2021.

 Robert is entitled to HECSHELP assistance for the unit of $1,845 ($2,745 minus $900), which the Commonwealth must pay to the higher education provider.

 The upfront payment in relation to the unit exceeded $500 so there is a HECSHELP discount of $100 (oneninth of $900). The Commonwealth lends to Robert the remainder of the HECSHELP assistance in relation to the unit, an amount of $1,745 ($1,845 minus $100).

963  Payments to higher education providers—full upfront payment of student contribution amount

  If:

 (a) a student is entitled to an amount of *HECSHELP assistance for a unit of study in which the student is enrolled with a higher education provider; and

 (b) one or more *upfront payments have been made in relation to the unit; and

 (c) the amount of that upfront payment, or the sum of those upfront payments, is equal to 90% of the student’s *student contribution amount for the unit;

the Commonwealth must, as a benefit to the student, pay to the provider the amount of HECSHELP assistance for the unit in discharge of that amount of the student’s liability to pay the student’s student contribution amount for the unit.

Note: The student does not incur a HECSHELP debt in relation to the amount of HECSHELP assistance paid by the Commonwealth to the provider under this section.

9610  Implications for student’s liability to higher education provider for student contribution amount

  If, under Division 97, a student’s *HELP balance is recredited with an amount relating to *HECSHELP assistance for a unit of study, the student is discharged from all liability to pay or account for so much of the student’s *student contribution amount for the unit as is equal to that amount.

Division 97Recrediting of HELP balances in relation to HECSHELP assistance

9723  Purpose

  The purpose of this Division is to set out the circumstances in which a person’s *HELP balance is to be recredited with an amount equal to the amounts of *HECSHELP assistance that the person has received for a unit of study.

Note: For transitional provisions relating to this Division, see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.

9725  Main case of recrediting a person’s HELP balance in relation to HECSHELP assistance

 (1) If section 9742 applies to recredit a person’s *HELP balance with an amount equal to the amounts of *HECSHELP assistance that the person has received for a unit of study, then this section does not apply in relation to that unit.

 (2) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *HECSHELP assistance that the person received for a unit of study if:

 (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; and

 (c) the provider is satisfied that special circumstances apply to the person (see section 9730); and

 (d) the person applies in writing to the provider for recrediting of the HELP balance; and

 (e) either:

 (i) the application is made before the end of the application period under section 9735; 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.

 (3) If the higher education provider is unable to act for one or more of the purposes of subsection (2), or section 9730, 9735 or 9740, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.

9727  Recrediting a person’s HELP balance in relation to HECSHELP assistance—no tax file number

 (1) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *HECSHELP assistance that the person received for a unit of study if:

 (a) the person has been enrolled in the unit with the provider; and

 (b) subsection 1935(1) applies to the person in relation to the unit.

 (2) The *Secretary may recredit the person’s *HELP balance under subsection (1) if the provider is unable to do so.

9730  Special circumstances

 (1) For the purposes of paragraph 9725(2)(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 3621(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 3621(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECSHELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.

9735  Application period

 (1) If:

 (a) the person applying under paragraph 9725(2)(d) for the recrediting of the person’s *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.

 (2) If subsection (1) does 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.

9740  Dealing with applications

 (1) If:

 (a) the application is made under paragraph 9725(2)(d) before the end of the relevant application period; 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.

Note: Refusals of applications are reviewable under Part 57.

9742  Recrediting a person’s HELP balance in relation to HECSHELP assistance—provider defaults

 (1) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *HECSHELP assistance that the person received for a unit of study if:

 (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 *defaulted in relation to the person and the unit; and

 (c) Part 51A applied to the provider at the time the provider defaulted in relation to the person; and

 (d) any of the following apply:

 (i) the provider identifies, under paragraph 16625(4)(b) that there is no suitable *replacement unit or *replacement course for the person;

 (ii) the person elects, under subparagraph 16625(7)(a)(iii), to have an amount equal to the amounts of HECSHELP assistance that the person received for the unit recredited to the student’s HELP balance;

 (iii) the *Higher Education Tuition Protection Director decides, under paragraph 16626B(2)(b) that the Director is not satisfied that there is a suitable replacement course for the person;

 (iv) the person elects, under subparagraph 16626B(4)(a)(iii), to have an amount equal to the amounts of HECSHELP assistance that the person received for the unit recredited to the student’s HELP balance.

Note: A HECSHELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is recredited: see subsection 1375(5).

 (2) The *Secretary may recredit the person’s *HELP balance under subsection (1) if the provider is unable to do so.

9745  Recrediting a person’s HELP balance in relation to HECSHELP assistance—provider completes request for assistance

 (1) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *HECSHELP assistance that the person received for a unit of study if the provider completes any part of the *request for Commonwealth assistance in relation to the unit that the person is required to complete.

Note: A HECSHELP debt relating to a unit of study is taken to be remitted if the HELP balance in relation to the unit is recredited under this section: see subsection 1375(5).

 (2) The *Secretary may recredit the person’s *HELP balance under this section if the provider is unable to do so.

9750  Recrediting a person’s HELP balance in relation to HECSHELP assistance—person not entitled to assistance

 (1) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *HECSHELP assistance that the person received for a unit of study if the provider or the Secretary is satisfied that the person was not entitled to receive HECSHELP assistance for the unit of study with the provider.

Note 1: For example, a person is not entitled to HECSHELP assistance for a unit of study if the person is not a Commonwealth supported student in relation to the unit: see section 901.

Note 2: Subdivision 36B sets out circumstances in which a higher education provider must not advise a person that the person is a Commonwealth supported student in relation to a unit of study.

Note 3: A HECSHELP debt relating to a unit of study is taken to be remitted if the HELP balance in relation to the unit is recredited under this section: see subsection 1375(5).

 (2) The *Secretary may recredit the person’s *HELP balance under subsection (1) if the provider is unable to do so.

Part 33FEEHELP assistance

Division 101Introduction

1011  What this Part is about

A student may be entitled to FEEHELP 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 42.

1015  The FEEHELP Guidelines

  *FEEHELP assistance is also dealt with in the FEEHELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The FEEHELP Guidelines are made by the Minister under section 23810.

Division 104Who is entitled to FEEHELP assistance?

Subdivision 104ABasic rules

1041  Entitlement to FEEHELP assistance

 (1) Subject to this section and sections 1041AA, 1041A, 1042, 1043 and 1044, a student is entitled to *FEEHELP assistance for a unit of study if:

 (a) the student meets the citizenship or residency requirements under section 1045; 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 *HELP balance is greater than zero; and

 (c) the *census date for the unit is on or after 1 January 2005; 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 10410; 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 overseastrained 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

 (ga) if:

 (i) subparagraph (f)(i) applies, the census date for the unit is on or after 1 January 2021 and before 1 January 2023 and the student commenced the course of study on or after 1 January 2021; or

 (ii) subparagraph (f)(i), (ii) or (iii) applies and the census date for the unit is on or after 1 January 2023;

  the student has a *student identifier immediately before the census date; and

 (h) the student *meets the tax file number requirements (see section 1871); 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.

 (1AA) A student is not entitled to *FEEHELP assistance for a unit of study if the *Secretary determines that the student is not a genuine student in relation to the unit.

 (1AB) In determining whether a student is a genuine student for the purposes of subsection (1AA), the *Secretary must have regard to the matters (if any) specified in the Higher Education Provider Guidelines.

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

 (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 1942.

 (2) A student is not entitled to *FEEHELP 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 *FEEHELP 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 FEEHELP assistance, or on the total amount of FEEHELP assistance payable to the provider, applies to the provider; and

 (b) provision of FEEHELP assistance to the student would exceed that limit.

 (4) A student is not entitled to *FEEHELP 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.

1041AA  Student has unreasonable study load

 (1) A student is not entitled to *FEEHELP assistance for a unit of study (the new unit) provided, or to be provided, by a higher education provider if the sum of the following amounts is more than 2:

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

 (b) the sum of the EFTSL values of each other unit of study:

 (i) that has a *census date during the 12 month period ending on the census date for the new unit; and

 (ii) for which the person is entitled to *HECSHELP assistance or *FEEHELP assistance, or would be so entitled but for the previous operation of this section, or section 3612, in relation to the other unit of study.

 (2) Subsection (1) does not apply if the higher education provider determines that undertaking the new unit will not impose an unreasonable study load on the person, having regard to:

 (a) whether the person has the demonstrated capacity and capability to successfully complete units of study that have a total EFTSL value of more than 2; and

 (b) the matters (if any) specified by the Higher Education Provider Guidelines for the purposes of this paragraph.

 (3) A decision of a higher education provider under subsection (2) must be in accordance with the Higher Education Provider Guidelines.

 (4) If a determination under subsection (2) is made in writing, the determination is not a legislative instrument.

1041A  Failure by a student to complete previous units with provider

 (1) A student is not entitled to *FEEHELP 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 10430).

1042  Failure by a student to complete previous units accessed through Open Universities Australia

  A student is not entitled to *FEEHELP 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.

1043  Failure by Open Universities Australia to comply with FEEHELP Guidelines etc.

 (1) The Minister may determine, by legislative instrument, that there is to be no entitlement to *FEEHELP 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 FEEHELP Guidelines or with subsection (5).

 (2) Without limiting the generality of what may be included in the FEEHELP 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 *FEEHELP 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 *FEEHELP 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

 (c) the determination was made before 1 July in the year immediately preceding that year.

 (5) *Open Universities Australia must comply with section 1937 as if it were a higher education provider.

1044  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 FEEHELP 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 FEEHELP 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 FEEHELP Guidelines; and

 (ii) in circumstances specified in the FEEHELP 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

 (c) payable in respect of residential accommodation.

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 FEEHELP Guidelines; and

 (ii) in circumstances specified in the FEEHELP 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 *FEEHELP assistance for the unit.

1045  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 overseastrained 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

 (c) both:

 (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, or the *bridging course for overseastrained professionals, of which the unit forms a part.

 (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 1041(1)(i)(i).

10410  Course requirements

 (1) The course requirements for *FEEHELP 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 *selfaccrediting 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 *FEEHELP assistance is unavailable; or

 (b) all courses provided by a specified higher education provider are courses in relation to which FEEHELP 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.

10412  Secretary may act if provider is unable to

  If a higher education provider is unable to act for the purposes of subsection 1041AA(2), the *Secretary may act as if one or more of the references in that provision to a higher education provider were a reference to the Secretary.

Subdivision 104BRecrediting HELP balances in relation to FEEHELP assistance

10425  Main case of recrediting a person’s HELP balance in relation to FEEHELP assistance

 (1A) If section 10442 applies to recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP assistance that the person has received for a unit of study, then this section does not apply in relation to that unit.

 (1) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP assistance that the person received for a unit of study if:

 (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

 (c) the provider is satisfied that special circumstances apply to the person (see section 10430); and

 (d) the person applies in writing to the provider for recrediting of the HELP balance; and

 (e) either:

 (i) the application is made before the end of the application period under section 10435; 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.

 (2) *Open Universities Australia must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP 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

 (c) Open Universities Australia is satisfied that special circumstances apply to the person (see section 10430); and

 (d) the person applies in writing to Open Universities Australia for recrediting of the HELP balance; and

 (e) either:

 (i) the application is made before the end of the application period under section 10435; 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 FEEHELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is recredited: see section 13710.

 (3) If the provider is unable to act for one or more of the purposes of subsection (1), or section 10430, 10435 or 10440, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.

 (4) If *Open Universities Australia is unable to act for one or more of the purposes of subsection (2), or section 10430, 10435 or 10440, the *Secretary may act as if one or more of the references in those provisions to Open Universities Australia were a reference to the Secretary.

10427  Recrediting a person’s HELP balance in relation to FEEHELP assistance—no tax file number

 (1) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP assistance that the person received for a unit of study if:

 (a) the person has been enrolled in the unit with the provider; and

 (b) subsection 19310(1) applies to the person in relation to the unit.

 (2) *Open Universities Australia must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP assistance that the person has received for a unit of study if subsection 19310(2) applies to the person in relation to the unit.

Note: A FEEHELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is recredited: see section 13710.

 (3) The *Secretary may recredit the person’s *HELP balance under subsection (1) or (2) if the provider or *Open Universities Australia is unable to do so.

10430  Special circumstances

 (1) For the purposes of paragraphs 1041A(2)(b) and 10425(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 3621(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 3621(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECSHELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.

 (3) For the purposes of paragraph 10425(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.

10435  Application period

 (1) If:

 (a) the person applying under 10425(1)(d) for the recrediting of the person’s *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 10425(2)(d) for the recrediting of the person’s *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.

10440  Dealing with applications

 (1) If:

 (a) the application is made under paragraph 10425(1)(d) before the end of the relevant application period; 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.

 (1A) If:

 (a) the application is made under paragraph 10425(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 57.

10442  Recrediting a person’s FEEHELP balance if provider defaults or person elects recrediting

 (1) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP assistance that the person received for a unit of study if:

 (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 *defaulted in relation to the person; and

 (c) Part 51A applied to the provider at the time the provider defaulted in relation to the person; and

 (d) any of the following apply:

 (i) the provider identifies, under paragraph 16625(4)(b), that there is no suitable *replacement unit or *replacement course for the person;

 (ii) the person elects, under subparagraph 16625(7)(a)(iii), to have an amount equal to the amounts of FEEHELP assistance that the person received for the unit recredited to the student’s HELP balance;

 (iii) the *Higher Education Tuition Protection Director decides, under paragraph 16626B(2)(b), that the Director is not satisfied that there is a suitable replacement course for the person;

 (iv) the person elects, under subparagraph 16626B(4)(a)(iii), to have an amount equal to the amounts of FEEHELP assistance that the person received for the unit recredited to the student’s HELP balance.

Note: A FEEHELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is recredited: see subsection 13710(4).

 (2) The *Secretary may recredit the person’s *HELP balance under subsection (1) if the Secretary is satisfied that the provider has failed to do so within a reasonable period.

10443  Recrediting a person’s HELP balance in relation to FEEHELP assistance if not a genuine student

 (1) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP assistance that the person received for a unit of study if:

 (a) the person has been enrolled in the unit with the provider; and

 (b) the Secretary has determined under subsection 1041(1AA) that the student is not a genuine student in relation to the unit.

Note: A FEEHELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is recredited: see subsection 13710(4).

 (2) The *Secretary may recredit the person’s *HELP balance under subsection (1) if the provider is unable to do so.

10444  Recrediting a person’s HELP balance in relation to FEEHELP assistance if provider completes request for assistance etc.

 (1) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP 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 FEEHELP debt relating to a unit of study will be remitted if the HELP balance in relation to the unit is recredited under this section: see subsection 13710(4).

 (2) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP assistance that the person received for a unit of study if the Secretary is satisfied that the student was not entitled to receive FEEHELP assistance for the unit of study with the higher education provider.

 (3) A higher education provider must, on the *Secretary’s behalf, recredit a person’s *HELP balance with an amount equal to the amounts of *FEEHELP 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 recredit the person’s *HELP balance under this section if the provider is unable to do so.

Subdivision 104CBridging courses for overseastrained professionals

10445  Meaning of bridging course for overseastrained 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 overseastrained 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

 (c) the person undertakes, or proposes to undertake, those additional studies by:

 (i) enrolling, or proposing to enrol, on a *nonaward 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 fulltime student for one year; and

 (e) those subjects or units relate to the assessment statement.

Courses consisting of occupationrelated courses of instruction

 (2) One or more occupationrelated 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 overseastrained 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

 (c) the person prepares, or proposes to prepare, for those examinations by:

 (i) enrolling, or proposing to enrol, on a *nonaward basis, in those occupationrelated courses of instruction with the provider; or

 (ii) accessing, or proposing to access, those occupationrelated 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 fulltime 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 overseastrained 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

 (c) the person undertakes, or proposes to undertake, such a program by:

 (i) enrolling, or proposing to enrol, on a *nonaward 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 fulltime student for one year; and

 (e) that program relates to the assessment statement.

10450  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;

 (c) successfully undertaking a tuition and training program of a kind 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).

10455  Meaning of assessing body

 (1) An assessing body for a particular *listed professional occupation is a person or body specified in the FEEHELP 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 FEEHELP 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

 (c) the Northern Territory.

Such an assessing body is an assessing body of a State or Territory.

10460  Meaning of listed professional occupations

 (1) A listed professional occupation is an *occupation specified in the FEEHELP 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.

10465  Occupation includes part of an occupation

 (1) An occupation includes a part of an occupation specified in the FEEHELP 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.

10470  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

 (c) consist of eligibility for membership 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 occupationrelated study unit, an occupationrelated course of instruction or an occupationrelated tuition and training program.

Division 107How are amounts of FEEHELP assistance worked out?

1071  The amount of FEEHELP assistance for a unit of study

  The amount of *FEEHELP 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 *upfront payments made in relation to the unit.

Note: A lesser amount may be payable because of section 10710.

1075  Upfront payments

 (1) An upfront 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 *FEEHELP assistance under this Part.

 (2) The payment must be made on or before the *census date for the unit.

10710  Amounts of FEEHELP assistance, HECSHELP assistance and VET FEEHELP assistance must not exceed the HELP balance

Amount of FEEHELP assistance for one unit

 (1) The amount of *FEEHELP assistance to which a student is entitled for a unit of study is an amount equal to the student’s *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 FEEHELP assistance; or

 (ia) unit of study, with the same census date, for which the student is entitled to HECSHELP assistance; or

 (ii) *VET unit of study, with the same census date, for which the student is entitled to *VET FEEHELP assistance; and

 (b) the amount of FEEHELP assistance to which the student would be entitled under section 1071 for the unit would exceed that HELP balance.

Note 1: For transitional provisions relating to subparagraph (a)(ia), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.

Note 2: The amount of a *VET student loan is limited by reference to the student’s HELP balance—see sections 8 and 20 of the VET Student Loans Act 2016. The student’s HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student—see section 12815.

Amount of FEEHELP assistance for more than one unit

 (2) If the sum of:

 (a) the amount of *FEEHELP assistance to which a student would be entitled under section 1071 for a unit of study; and

 (b) any other amounts of:

 (i) FEEHELP assistance to which the student would be entitled under that section for other units that have the same *census date as that unit; and

 (ia) *HECSHELP assistance to which the student would be entitled under section 931 for other units that have the same census date as that unit; and

 (ii) *VET FEEHELP 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 *HELP balance on the census date for the unit, then, despite subsection (1) of this section, the total amount of FEEHELP assistance, HECSHELP assistance and VET FEEHELP assistance to which the student is entitled for all of those units is an amount equal to that HELP balance.

Example: Kath has a 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 FEEHELP 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.

Note 1: For transitional provisions relating to subparagraph (b)(ia), see Part 2 of Schedule 3 to the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018.

Note 2: The amount of a *VET student loan is limited by reference to the student’s HELP balance—see sections 8 and 20 of the VET Student Loans Act 2016. The student’s HELP balance is reduced by the amount of any VET student loans that have previously been payable to the student—see section 12815.

 (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 *FEEHELP assistance,*HECSHELP assistance or *VET FEEHELP 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 *FEEHELP 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 FEEHELP assistance,*HECSHELP assistance or *VET FEEHELP assistance that is to be payable in relation to that unit.

Division 110How are amounts of FEEHELP assistance paid?

Note: Part 51 deals generally with payments by the Commonwealth under this Act.

1101  Payments

 (1) If a student is entitled to an amount of *FEEHELP 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 FEEHELP 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 *FEEHELP 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 FEEHELP 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.

1105  Effect of HELP balance being recredited

 (1) If, under subsection 10425(1) or 10427(1) or section 10442, 10443 or 10444, a person’s *HELP balance is recredited with an amount relating to *FEEHELP assistance for a unit of study, the provider must pay to the Commonwealth an amount equal to the amount of FEEHELP 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 HELP balance is not increased by an amount equal to the amount recredited.

 (1A) Subsection (1) does not apply to the provider if:

 (a) the person’s *HELP balance was recredited under subsection 10425(1) (main case of recrediting a person’s HELP balance); and

 (b) the person enrolled in the unit as a *replacement unit.

 (1B) The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to the recrediting of a person’s *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 10425(2) or 10427(2), *Open Universities Australia recredits a person’s *HELP balance with an amount relating to *FEEHELP assistance for a unit of study, Open Universities Australia must pay to the Commonwealth an amount equal to the amount of FEEHELP assistance to which the person was entitled for the unit.

11010  Implications for student’s liability to higher education provider for student tuition fee

  If, under Subdivision 104B, a student’s *HELP balance is recredited with an amount relating to *FEEHELP assistance for a *unit of study, the student is discharged from all liability to pay or account for so much of the student’s *tuition fee for the unit as is equal to that amount.

Part 34OSHELP assistance

Division 115Introduction

1151  What this Part is about

Students may be entitled to OSHELP 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 OSHELP assistance.

The amount of OSHELP assistance is limited to a maximum amount for each period of study, and only 2 such periods can attract OSHELP assistance.

The purpose of OSHELP 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 42.

1155  The OSHELP Guidelines

  *OSHELP assistance is also dealt with in the OSHELP Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note: The OSHELP Guidelines are made by the Minister under section 23810.

Division 118Who is entitled to OSHELP assistance?

1181  Entitlement to OSHELP assistance

 (1) A student is entitled to *OSHELP assistance in relation to a period of 6 months if:

 (a) the student meets the citizenship or residency requirements under section 1185; and

 (b) the student has not received OSHELP assistance in relation to more than one other period of 6 months; and

 (c) the student is enrolled in a *course of study with a higher education provider (the home provider); 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 1187; and

 (e) the student meets the overseas study requirements under section 11810; 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 1871); 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 OSHELP assistance in relation to the period; and

 (hb) if the student made the application on or after 1 January 2021—the student has a *student identifier immediately before the student made the application; and

 (i) the home provider has selected the student for receipt of OSHELP assistance in relation to the period (see section 11815).

 (2) However, the student is not entitled to *OSHELP assistance in relation to that period if:

 (a) another higher education provider has granted OSHELP 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 *OSHELP assistance.

1182  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 *OSHELP assistance in relation to that period; and

 (b) the OSHELP assistance is for overseas study in Asia; and

 (c) the student undertakes intensive study in an Asian language in preparation for undertaking that overseas study; 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 11815).

Note: If a student is entitled to a supplementary amount for Asian language study, the amount of OSHELP 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 1211.

 (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 OSHELP Guidelines may specify circumstances in which a student undertakes intensive study in an Asian language in preparation for undertaking overseas study in Asia.

1185  Citizenship or residency requirements

 (1) The citizenship or residency requirements for *OSHELP assistance are that the student in question is:

 (a) an Australian citizen; or

 (b) a *permanent humanitarian visa holder; or

 (c) a student to whom subsection (2) applies.

 (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

 (c) both:

 (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:<