Higher Education Funding Legislation
Amendment Act 1993
No. 116 of 1993
An Act to amend the Higher Education Funding Act 1988,
and for related purposes
[Assented to 24 December 1993]
The Parliament of Australia enacts:
PART 1—PRELIMINARY
Short title
1. This Act may be cited as the Higher Education Funding Legislation Amendment Act 1993.
Commencement
2.(1) Part 1, paragraph 4(b) and subsection 20(1) commence on the day on which this Act receives the Royal Assent.
(2) Part 2 (other than paragraph 4(b) and sections 18 and 20) and Parts 3 and 4 commence on 1 January 1994.
(3) Subsection 20(2) commences on 1 January 1994 immediately after section 51 of the Higher Education Funding Amendment Act (No. 2) 1992 commences.
(4) Section 18 commences on 1 July 1994.
PART 2—AMENDMENTS OF THE HIGHER EDUCATION FUNDING ACT 1988
Principal Act
3. In this Part, “Principal Act” means the Higher Education Funding Act 19881.
Definitions
4. Section 3 of the Principal Act is amended:
(a) by inserting after paragraph (a) of the definition of “year to which this Chapter applies” the following paragraph:
“(ab) in Chapter 5—the year 1994 or any subsequent year; or”;
(b) by omitting from paragraph (b) “or the year 1995” and substituting “, the year 1995 or the year 1996”.
Grants to maintain or enhance the quality of higher education
5. Section 18A of the Principal Act is amended:
(a) by omitting from subsection (1) “The” and substituting “Subject to section 23C, the”;
(b) by omitting from subsection (3) “Subject to subsection (4), if” and substituting “If”;
(c) by omitting subsection (4).
Grants for projects of national priority
6. Section 21 of the Principal Act is amended:
(a) by inserting in subsection (3) “, then, subject to section 23C” after “year” (first occurring);
(b) by omitting subsection (6).
Promotion of equality of opportunity
7. Section 22 of the Principal Act is amended:
(a) by inserting in subsection (3) “(subject to section 23C)” after “the Minister is”;
(b) by omitting from subsection (3) “, subject to subsection (5),”;
(c) by omitting subsection (5).
Special research assistance
8. Section 23 of the Principal Act is amended:
(a) by omitting from subsection (2) “shall” and substituting “must (subject to section 23C)”;
(b) by omitting from subsection (3) “Subject to subsection (4), there” and substituting “There”;
(c) by omitting subsection (4).
Grants for advanced engineering centres
9. Section 23A of the Principal Act is amended:
(a) by inserting in subsection (4) “, then, subject to section 23C” after “year” (first occurring);
(b) by omitting subsection (7).
10. After section 23B of the Principal Act the following section is inserted:
Limit on total funds available for certain grants
“23C.(1) In any year, the total of:
(a) the amounts determined by the Minister under section 18A (Grants to maintain or enhance the quality of higher education); and
(b) the amounts determined by the Minister under section 21 (Grants for projects of national priority); and
(c) the amounts determined by the Minister under section 22 (Promotion of equality of opportunity); and
(d) the amounts determined by the Minister under section 23 (Special research assistance); and
(e) the amounts determined by the Minister under section 23A (Grants for advanced engineering centres);
must not exceed the consolidated amount prescribed for that year.
“(2) For the purposes of subsection (1), the following consolidated amounts are prescribed:
(a) for the year 1994—$430,248,000;
(b) for the year 1995—$445,436,000;
(c) for the year 1996—$450,974,000.”.
Interpretation
11. Section 34 of the Principal Act is amended:
(a) by omitting from the definition of “HEC assessment debt” in subsection (1) “68” and “71” and substituting “106Q”and “106T”, respectively;
(b) by omitting from the definition of “HEC semester debt” in subsection (1) “62” and substituting “106J”;
(c) by omitting paragraph (a) of the definition of “designated course of study” in subsection (1);
(d) by omitting from subsection (1) the definitions of “accumulated HEC debt” and “post-graduate scholarship student”;
(e) by inserting in subsection (1) the following definition:
“ ‘post-graduate award student’, in relation to a post-graduate course of study at an institution in respect of a year, means a student who holds an award, granted in accordance with guidelines issued by the Minister for the purposes of this definition, in respect of that course of study in respect of that year;”.
Exempt students
12. Section 35 of the Principal Act is amended:
(a) by omitting from subsection (2) “scholarship” and substituting “award”;
(b) by adding at the end the following subsection:
“(7) A student in relation to a course of study at an institution in respect of a year is an exempt student in relation to that course of study in respect of that year if, during that year, the student is the holder of a scholarship funded by the Commonwealth for the professional development of teachers.”.
Requirements before enrolment or undertaking course
13. Section 41 of the Principal Act is amended by omitting from sub-subparagraph (1)(b)(i)(B) “4.4” and substituting “5A.3”.
Payment to Fund
14. Section 60 of the Principal Act is amended:
(a) by inserting in paragraph (a) “or Chapter 5A” after “Chapter”;
(b) by omitting from subparagraph (1)(a)(ii) “72” and substituting “106U”.
Application of Fund
15. Section 61 of the Principal Act is amended by omitting from paragraph (1)(b) “this Chapter” (wherever occurring) and substituting “Chapter 5A”.
Repeal
16. Divisions 1 to 4 (inclusive) of Part 4.4 of the Principal Act and sections 76 and 77 are repealed.
17. After Chapter 4 of the Principal Act the following Chapters are inserted:
“CHAPTER 5—OPEN LEARNING DEFERRED PAYMENT
SCHEME
“PART 5.1—PRELIMINARY
Interpretation
“99.(1) In this Chapter, unless the contrary intention appears:
‘Agency’ means Open Learning Agency of Australia Pty. Ltd. (Australian Corporation No. 053 431 888);
‘appropriate officer’ means a person appointed by the Agency to be an appropriate officer for the purposes of this Chapter;
‘approved course of study’, in relation to a client of the Agency, means an undergraduate course of study:
(a) undertaken by the client through an institution; and
(b) access to which was provided by the Agency;
‘basic charge’ has the meaning given by subsection 104(2);
‘census date’, in relation to a semester, means the date declared by the Minister, by notice published in the Gazette, to be the census date for the semester;
‘Commissioner’ means the Commissioner of Taxation;
‘deferred payment scheme’ means the scheme referred to in section 100 and for which provision is made under this Chapter;
‘eligible client’, in relation to the Agency, has the meaning given by section 101;
‘enrol’, in relation to a unit of study, has a meaning affected by subsection (2);
‘OL semester debt’ has the meaning given by section 106K;
‘semester’ means any 2 consecutive study periods;
‘standard study load’ has the meaning given by section 103;
‘study period’ means a period of 13 weeks commencing in March, June, September or December in any year to which this Chapter applies on a day determined by the Minister by notice published in the Gazette;
‘tax file number’ has the same meaning as in Chapter 4.
“(2) For the purposes of this Chapter:
(a) a person is taken not to have enrolled for a unit of study for a semester if his or her enrolment for the unit of study was withdrawn on or before the census date for that semester; and
(b) a person who is participating in the deferred payment scheme is taken not to have been enrolled for the units of study, or a number of the units of study, for a semester if:
(i) the person incurred an OL semester debt in respect of that semester; and
(ii) the OL semester debt, or a part of the OL semester debt equal to the basic charges for that number of units of study, was subsequently remitted under section 106L or 106M.
“(3) For the purposes of this Chapter, the payment of an amount to the Agency by a person other than a client in respect of a charge payable by the client to the Agency is taken to be a payment of that amount to the Agency by the client.
Object of Part
“100.(1) The Commonwealth has entered into an agreement with the Agency relating to the provision by the Agency of access for its clients to approved courses of study offered by institutions.
“(2) The object of this Part is to make provision for a scheme under which the Commonwealth undertakes, if so required by certain clients of the Agency, to pay to the Agency the charges that, under the agreement referred to under subsection (1), the Agency may require those clients to pay in respect of the units of study for which they have enrolled for the purposes of an approved course of study.
“(3) Those charges are to be repaid to the Commonwealth, as provided under Chapter 5A, when the clients concerned have a taxable income.
Eligible clients
“101.(1) A client of the Agency is an eligible client in respect of a semester if:
(a) as at the census date for the semester, the client is enrolled to undertake:
(i) at least 2 units of study for the purposes of an approved course of study in the first study period of the semester; and
(ii) at least 3 units of study for the purposes of the course over the semester; and
(b) the number of units of study for which the client has enrolled for the semester, together with the total number of units of study for which the client had previously enrolled for the purposes of the course, does not exceed 28; and
(c) the client has successfully completed half the number of units:
(i) for which he or she had enrolled for the purposes of the course since 1 January 1994; and
(ii) in respect of which results are known at the time of enrolment; and
(d) at the time of enrolment, the client is:
(i) an Australian citizen; or
(ii) a person who is present in Australia and is entitled to stay in Australia, without any limitation as to time; or
(iii) a New Zealand citizen who has been living in Australia for a continuous period of at least 2 years.
Semesters in a year
“102. A semester is taken to be a semester in a year to which this Chapter applies if the first of its study periods starts in that year.
Standard study load
“103.(1) In this section:
‘previous semester’, in relation to a semester, means the semester that ended immediately before the semester begins;
“(2) The standard study load of an eligible client of the Agency in respect of a semester, is:
(a) in the case of the first semester for which the client enrols for the purposes of the course of study undertaken by the client—4 units of study; or
(b) in any other case—the number of units of study that, together with the number of units of study for which the client was enrolled for the purposes of the course for the previous semester, equals 8.
“PART 5.2—CHARGES
“Division 1—Payment of basic charges
Basic charge
“104.(1) In this section:
‘Agreement’ means the agreement between the Commonwealth and the Agency referred to in section 100.
“(2) The basic charge in respect of a unit of study for which an eligible client of the Agency is enrolled for a semester is the amount that under the Agreement the Agency may charge, in respect of a unit of study undertaken by a student during that semester, for the materials, services and experiences that the Agency must provide to enable the client to enrol for, and complete, the unit of study.
“(3) The Minister must cause the basic charge in respect of the semesters in the year 1994 to be published in the Gazette as soon as practicable after this Act commences.
“(4) The Minister must cause the basic charge in respect of the semesters in any other year to which this Chapter applies to be published in the Gazette before the beginning of that year.
Eligible client may join deferred payment scheme
“105.(1) An eligible client of the Agency may, at any time, choose to participate in the deferred payment scheme by complying with subsections (2) and (3).
“(2) The eligible client must sign, and give to an appropriate officer, a document in the approved form:
(a) stating that the client asks the Commonwealth, in the event that on the census date for any semester the client:
(i) is an eligible client of the Agency; and
(ii) is enrolled to undertake in the semester units of study for the purposes of an approved course of study; and
(iii) has not paid the basic charges in respect of those units of study or, if the enrolment for the semester is in respect of a number of units of study that exceeds the client’s standard study load for the semester, has not paid the basic charges in respect of the number of units of study included in that standard study load;
to lend to the client the amount of the charges and use the amount so lent to pay the charges on behalf of the client; and
(b) acknowledging that, if the Commonwealth complies with the request, the client will be liable to make payments under Part 5A.3.
“(3) The client must at the same time give to an appropriate officer:
(a) a notice specifying a number that the Agency is satisfied (in accordance with guidelines issued by the Commissioner) is the tax file number issued by the Commissioner to the client; or
(b) if the client is unable to give the notice or a tax file number has not been issued—a written application in a form approved by the Commissioner requesting the Commissioner to notify, or issue, a tax file number.
“(4) The Agency must send to the Commissioner the application referred to in paragraph (3)(b) within 7 days after it has been received.
Eligible client who has joined scheme not to pay basic charges
“106.(1) Subject to subsection (2), the Agency may not require an eligible client to pay the basic charge in respect of a unit of study in which the client has enrolled for a semester for the purposes of an approved course of study if, on the census date for the semester, the client is participating in the deferred payment scheme provided under this Chapter.
“(2) If the client has enrolled for the semester in a number of units of study that exceeds the standard study load of the client for the semester, subsection (1) does not apply in relation to any unit of study in excess of the client’s standard study load.
Tax file number of eligible client
“106A. Sections 42 to 53 (inclusive) apply in relation to the tax file number of an eligible client of the Agency as if:
(a) the reference in paragraph 42(1)(a) to sub-subparagraph 41(1)(b)(ii)(B) were a reference to paragraph 105(3)(b); and
(b) the reference in paragraph 42(2)(a) or (3)(a) to sub-subparagraph 41(1)(b)(ii)(A) were a reference to paragraph 105(3)(a); and
(c) a reference to a student or the student were a reference to the eligible client; and
(d) a reference to the institution, the institution concerned or the institution at which the student is enrolled were a reference to the Agency.
Notice by Agency
“106B.(1) The Agency must give to each client who, on the census date for a semester, is enrolled to undertake units of study for the purposes of an approved course of study and has chosen to participate in the deferred payment scheme a written notice:
(a) setting out particulars of the units of study (‘current units of study’) for which the client is enrolled in respect of that semester for the purposes of the course; and
(b) stating whether or not the client is an eligible client in respect of the semester; and
(c) specifying:
(i) the total amount of the basic charges payable by the client in respect of his or her current units of study; and
(ii) the total number of units for which the client has enrolled for the purposes of the course (including the current units of study); and
(iii) the number of units of study that, on the census date for the semester, were known to have been successfully completed by the client.
“(2) The notice must be given not later than the date specified for the purposes of this section by the Minister by notice published in the Gazette.
“(3) If, after giving a notice to a client under subsection (1) or this subsection, the Agency is satisfied that a material particular in the notice was not, or has ceased to be, correct, the Agency must give a further written notice to the client setting out the correct particular.
“(4) A notice under this section is given for the purpose only of providing information to a client, and the liability of a client to pay a charge is not affected:
(a) if the Agency fails to give a notice or to give a notice by the specified date; or
(b) if there is an incorrect statement in the notice.
“(5) A notice under this section must set out the effect of subsections 106C(1) and (2).
Requests for correction of notices
“106C.(1) If a client who receives a notice under section 106B considers that the notice was not, or has ceased to be, correct in a material particular, the client may, within 14 days after the day on which the notice is sent, or within any further period that the appropriate officer allows, ask that officer, in writing, to correct the notice.
“(2) The client must specify the particular that is considered to be incorrect and set out the grounds on which the client considers that particular to be incorrect.
“(3) The making of a request does not affect the liability of the client to pay any basic charge.
“(4) The Agency must:
(a) as soon as practicable, consider the request to correct the notice; and
(b) notify the client of its decision; and
(c) if it is satisfied that a material particular in the notice was not, or has ceased to be, correct, give a further notice under subsection 106B(3).
“Division 2—Discharge by Commonwealth of clients’ liability
for basic charges
Commonwealth to discharge clients’ liabilities
“106D.(1) If an eligible client of the Agency who has chosen to participate in the deferred payment scheme has not, on or before the census date for a semester, paid the basic charge in respect of a unit of study for which the client is enrolled for the semester, the Commonwealth must, as a benefit to the client:
(a) lend to the client an amount equal to the charge; and
(b) apply the amount so lent in making a payment to the Agency in discharge of the client’s liability to pay the charge.
“(2) The Commonwealth may make advances to the Agency on account of an amount that is expected to become payable by the Commonwealth to the Agency under this section.
Agency to provide information to Minister
“106E. The Agency must give to the Minister, if required by the Minister to do so, any information in its possession relating to clients undertaking units of study in a semester (not being information as to the name or address of a client) that the Minister reasonably requires for the purposes of this Part.
“PART 5.3—MISCELLANEOUS
Secrecy
“106F. Section 78 has effect in relation to information disclosed or obtained under, or for the purposes of, this Chapter as if:
(a) the section were included in this Chapter; and
(b) any reference to an institution included a reference to the Agency.”.
“PART 5.4—SPECIAL PROVISIONS APPLYING TO CERTAIN
CLIENTS OF THE AGENCY SEEKING ENROLMENT IN
MARCH 1994
Enrolment for study period commencing in March 1994
“106G.(1) If:
(a) a client of the Agency has undertaken at least one unit of study for the purposes of an approved course of study during the period of 13 weeks beginning in December 1993; and
(b) were the client to enrol as provided in paragraph 101(1)(a) on the census date in relation to the semester beginning in March 1994, the client would be an eligible client of the Agency in respect of that semester;
the client may, on or before that date, enrol instead, for the purposes of the course of study, to undertake in the study period commencing in March 1994 a number of units of study that, together with the number of units undertaken for the purposes of the course in the period referred to in paragraph (a), is not less than 3.
“(2) If the client enrols under subsection (1) for the study period commencing in March 1994 for the purposes of an approved course of study, then, for the purposes of the application of this Chapter in relation to the client:
(a) that study period is taken to be a semester (‘special semester’) beginning in the year 1994; and
(b) the census date for the semester commencing in March 1994 is taken to be also the census date for the special semester; and
(c) the client is an eligible client of the Agency in respect of the special semester.
“CHAPTER 5A—REPAYMENT OF LOANS MADE UNDER
CHAPTERS 4 AND 5
“PART 5A.1—PRELIMINARY
Interpretation
“106H.(1) In this Chapter, unless the contrary intention appears:
‘accumulated HEC debt’ has the meaning given by section 106N;
‘HEC semester debt’ has the meaning given by section 106J;
‘OL semester debt’ has the meaning given by section 106K;
‘semester debt’ means:
(a) an HEC semester debt; or
(b) an OL semester debt.
“(2) Expressions used in this Chapter that are defined in Chapter 4 or 5 have in this Chapter, unless the contrary intention appears, the same meanings as in Chapter 4 or 5 (as the case may be).
“(3) Expressions used in this Chapter that are defined in the Income Tax Assessment Act 1936 have in this Chapter, unless the contrary intention appears, the same meanings as in that Act.
Object of Part
“1061. This Part makes provision for the repayment to the Commonwealth of loans made by the Commonwealth:
(a) to students under Chapter 4; or
(b) to eligible clients of the Agency under Chapter 5.
PART 5A.2—NATURE OF INDEBTEDNESS
HEC semester debt
“106J.(1) When the Commonwealth under section 57:
(a) makes a loan to a person; and
(b) uses the amount lent to make a payment in discharge of the person’s liability to pay a contribution in respect of a course of study in respect of a semester;
the person incurs an HEC semester debt to the Commonwealth equal to the amount of the loan.
“(2) The HEC semester debt is taken to have been incurred immediately after the census date in respect of the course of study in respect of the semester, whether or not the Commonwealth has made a payment to the institution in respect of the contribution.
OL semester debt
“106K.(1) When the Commonwealth under section 106D:
(a) makes a loan to a person; and
(b) uses the amount lent to pay the basic charges that are payable by the person to the Agency in respect of units of study for which the person is enrolled in respect of a semester;
the person incurs an OL semester debt to the Commonwealth equal to the amount of the loan.
“(2) The OL semester debt is taken to have been incurred immediately after the census date for the semester, whether or not the Commonwealth has made a payment to the Agency in respect of the charges.
Power of Secretary to remit semester debt in special circumstances
“106L.(1) Subject to subsection (3), if a person has incurred an HEC semester debt, the Secretary may, on written application made by the person within 3 months after the debt was incurred, if the Secretary is satisfied:
(a) that the person, because of special circumstances, did not complete his or her course requirements during the semester or during the year in which the semester occurred; and
(b) that those circumstances justify the Secretary so doing;
in writing, remit the whole of the debt or such part of the debt as the Secretary thinks fit.
“(2) Subject to subsection (3), if a person has incurred an OL semester debt, the Secretary may, on written application made by the person within 3 months after the debt was incurred, if the Secretary is satisfied:
(a) that the person, because of special circumstances did not complete the units of study for which he or she was enrolled for the semester; and
(b) that those circumstances justify the Secretary so doing;
in writing, remit the whole of the debt or such part of the debt as the Secretary thinks fit.
“(3) An application may be made under subsection (1) or (2) within 15 months after the debt was incurred, if:
(a) the person was unable, because of circumstances beyond his or her control, to make an application within the period of 3 months referred to in that subsection; or
(b) the special circumstances referred to in subsection (1) or (2) only became known after the end of that period of 3 months.
“(4) On receiving an application, the Secretary must as soon as practicable consider the matter to which the application relates and notify the applicant of the decision on the application.
“(5) The notice of the decision must include:
(a) a statement of the reasons for the decision; and
(b) a statement to the effect that:
(i) if the applicant is dissatisfied with the decision of the Secretary the applicant may, within 28 days of receiving the notice, apply under section 106M for reconsideration of the decision; and
(ii) if the applicant is dissatisfied with the decision on the reconsideration, the applicant may, subject to the Administrative Appeals Tribunal Act 1975, make application to the Tribunal for a review of the decision on the reconsideration.
“(6) A failure to comply with subsection (5) does not affect the validity of the notice or of the decision notified.
“(7) If the Secretary remits the whole or a part of a semester debt, the Secretary must give to the Commissioner written notice setting out:
(a) the name of the person whose debt is remitted; and
(b) the amount remitted; and
(c) any other particular that the Commissioner reasonably requires.
Reconsideration of decision and appeal to Administrative Appeals Tribunal
“106M.(1) If:
(a) a person has applied under section 106L for remission of the whole or a part of a semester debt; and
(b) the Secretary notifies the person that he or she has decided not to remit the debt or not to remit as much of the debt as the person sought to have remitted;
the person may apply to the Secretary for a reconsideration of the decision.
“(2) The application must be made in writing and must be given or sent to the Secretary within 28 days after the person has received notice of the decision.
“(3) On receiving the application, the Secretary must, as soon as practicable:
(a) consider the application and:
(i) confirm the original decision; or
(ii) vary the original decision; or
(iii) revoke the original decision and substitute another decision; and
(b) notify the applicant of the decision on the reconsideration.
“(4) The notice of the decision must include:
(a) a statement of the reasons for the decision; and
(b) a statement to the effect that, if the applicant is dissatisfied with the decision, the applicant may, within 28 days after receiving the notification, and subject to the Administrative Appeals Tribunal Act 1975, apply to the Tribunal for review of the decision.
“(5) A failure to comply with subsection (4) does not affect the validity of the notice or of the decision notified.
“(6) Application may be made to the Administrative Appeals Tribunal for a review of a decision of the Secretary under subsection (3).
Calculation of accumulated HEC debt
“106N.(1) If a person incurred a semester debt or semester debts before 1 June in a year (‘relevant date’) but after 1 June in the immediately preceding year, the person incurs on the relevant date an accumulated HEC debt to the Commonwealth of an amount equal to:
(a) that semester debt; or
(b) the total of those semester debts;
less any amounts paid before the relevant date in reduction of that debt or those debts.
“(2) If on 1 June in a year (‘relevant date’) a person owes to the Commonwealth:
(a) a semester debt or semester debts incurred before 1 June in the immediately preceding year (‘earlier date’); and
(b) a semester debt or semester debts incurred after the earlier date;
the person incurs on the relevant date an accumulated HEC debt that is made up of:
(c) the adjusted accumulated HEC debt of the person at the earlier date (see subsection (3)) multiplied by the factor worked out under subsection (5); and
(d) the semester debt or debts referred to in paragraph (b).
“(3) For the purposes of paragraph (2)(c), the adjusted accumulated HEC debt of the person at the earlier date is the amount worked out by using the formula:
where:
A is the accumulated HEC debt of the person as at the earlier date;
B is the sum of:
(a) any HEC assessment debt or HEC assessment debts of the person assessed on or after the earlier date and before the relevant date, excluding any such HEC assessment debt of the person assessed as a result of a return given before the earlier date; and
(b) any HEC assessment debt or HEC assessment debts of the person assessed on or after the relevant date as a result of a return given before the relevant date;
C is any amount, or the sum of any amounts, paid (otherwise than in discharge of an HEC assessment debt) on or after the earlier date and before the relevant date in reduction of the person’s accumulated HEC debt at the earlier date;
D is any amount, or the sum of any amounts, by which (whether as a result of an increase in the person’s taxable income of a year of income or otherwise) any HEC assessment debt of the person is increased by an amendment of the relevant assessment made on or after the earlier date and before the relevant date; and
E is any amount, or the sum of any amounts, by which (whether as a result of a reduction in the person’s taxable income of a year of income or otherwise) any HEC assessment debt of the person is reduced by an amendment of the relevant assessment made on or after the earlier date and before the relevant date.
“(4) For the purposes of subsection (3), an assessment or an amendment of an assessment is taken to have been made on the day specified in the notice of assessment or notice of amended assessment (as the case may be) as the date of that notice.
“(5) The factor to be used for the purposes of paragraph (2)(c) in calculating the accumulated HEC debt of a person at 1 June in a year is the number (calculated to 3 decimal places) worked out, as at the date on which the index number in respect of the March quarter immediately preceding that 1 June was first published, by dividing the sum of:
(a) the index number in respect of that March quarter; and
(b) the index numbers in respect of the 3 quarters that immediately preceded that quarter;
by the sum of:
(c) the index number in respect of the March quarter immediately preceding 1 June in the year that next preceded that year; and
(d) the index numbers in respect of the 3 quarters that immediately preceded that last-mentioned quarter.
“(6) Subject to subsection (7), if at any time, whether before or after the commencement of this section, the Australian Statistician has published or publishes an index number in respect of a quarter in substitution for an index number previously published by the Australian Statistician in respect of that quarter, the publication of the later index number is to be disregarded for the purposes of this section.
“(7) If, at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the reference base for the Consumer Price Index, then, for the purposes of the application of this section after the change took place or takes place, regard is to be had only to index numbers published in terms of the new reference base.
“(8) If the factor worked out in accordance with subsection (5) in calculating the accumulated HEC debt of a person at 1 June in a year would, if it were calculated to 4 decimal places, end with a number greater than 4, the factor worked out in accordance with that subsection in making that calculation is taken to be the factor calculated to 3 decimal places in accordance with that subsection and increased by 0.001.
“(9) The Commissioner must cause to be published before 1 June in each year the factor worked out in accordance with subsection (5) (as affected by subsection (8)) in relation to the calculation of the accumulated HEC debt of a person at that date.
“(10) If, apart from this subsection, the accumulated HEC debt of a person at 1 June in a year would be an amount consisting of a number of whole dollars and a number of cents, the number of cents must be disregarded.
“(11) In this section:
‘index number’, in relation to a quarter, means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter.
Accumulated HEC debt discharges earlier debts
“1060.(1) The accumulated HEC debt that a person incurs on 1 June in a year (‘relevant date’) discharges, or discharges the unpaid part of:
(a) any accumulated HEC debt that the person incurred on the preceding 1 June (‘earlier date’); and
(b) any semester debt that was incurred by the person on or after the earlier date and before the relevant date.
“(2) Nothing in subsection (1) affects the application of section 106L or 106N.
“PART 5A.3—DISCHARGE OF INDEBTEDNESS
“Division 1—Voluntary discharge of indebtedness
Voluntary payments in respect of debts
“106P.(1) If a person owes a debt to the Commonwealth under this Chapter, the person may at any time make a payment in respect of that debt.
“(2) The payment must be made to the Commissioner.
“Division 2—Requirement to discharge indebtedness
Compulsory payments in respect of accumulated HEC debt
“106Q.(1) If:
(a) the taxable income of a person in respect of a year of income exceeds the minimum prescribed amount (see subsection (4)); and
(b) on 1 June immediately preceding the making of an assessment in respect of the person’s income of that year of income, the person had an accumulated HEC debt;
the person is liable to pay in accordance with this Chapter to the Commonwealth in reduction of his or her relevant debt (see subsection (2)) an amount equal to so much of that relevant debt as does not exceed:
(c) if that taxable income does not exceed the intermediate prescribed amount (see subsection (4))—3% of that taxable income; or
(d) if that taxable income exceeds the intermediate prescribed amount but does not exceed the maximum prescribed amount (see subsection (4))—4% of that taxable income; or
(e) if that taxable income exceeds the maximum prescribed amount—5% of that taxable income.
“(2) In subsection (1), ‘relevant debt’, in relation to a person, means:
(a) subject to paragraph (b) of this subsection, the person’s accumulated HEC debt referred to in paragraph (1)(b); or
(b) if an amount or amounts have been paid in reduction of that debt, or an amount or amounts have been assessed under section 106T to be payable in respect of that debt—the amount (if any) remaining after deducting from that debt the amount, or the sum of the amounts, so paid or assessed to be payable.
“(3) A reference in paragraph (2)(b) to an amount assessed under section 106T to be payable in respect of a person’s accumulated HEC debt is, if the amount has been increased or reduced by an amendment of the relevant assessment, a reference to the increased or reduced amount (as the case may be).
“(4) For the purposes of subsection (1):
(a) the minimum prescribed amount is:
(i) in the case of the year of income ending on 30 June 1994—$26,402; or
(ii) in the case of a subsequent year of income—the number of whole dollars in the amount worked out by using the formula:
(b) the intermediate prescribed amount is:
(i) in the case of a year of income ending on 30 June 1994—$30,004; or
(ii) in the case of a subsequent year of income—the number of whole dollars in the amount worked out by using the formula:
(c) the maximum prescribed amount is:
(i) in the case of a year of income ending on 30 June 1994—$42,005; or
(ii) in the case of a subsequent year of income—the number of whole dollars in the amount worked out by using the formula:
where:
AWE is the sum of:
(d) the average weekly earnings for all employees for the reference period in the December quarter immediately preceding that year of income, as published by the Australian Statistician; and
(e) the average weekly earnings for all employees for the reference period in each of the 4 quarters immediately before that December quarter, as published by the Australian Statistician.
“(5) For the purposes of subsection (4), the reference period in a particular quarter in a year is the period described by the Australian Statistician as the pay period ending on or before a specified day that is the third Friday of the middle month of that quarter.
“(6) The Minister must cause to be published in the Gazette:
(a) before the start of the year of income ending on 30 June 1995; and
(b) before the start of each following year of income;
the minimum prescribed amount, intermediate prescribed amount and maximum prescribed amount in respect of that year of income.
“Division 3—Returns and assessments
Agency etc. to provide information to Commissioner
“106R.(1) The Agency must give to the Commissioner, if asked by the Commissioner to do so, any information in its possession relating to its eligible clients that the Commonwealth reasonably requires for the purposes of this Chapter.
“(2) Subsection (1) does not limit the operation of subsection 105(4).
“(3) An institution must give to the Commissioner, if asked by the Commissioner to do so, any information in its possession relating to students in relation to designated courses of study at the institution that the Commissioner reasonably requires for the purposes of this Chapter.
“(4) Subsection (3) does not limit the operation of subsection 41(2).
Annual returns
“106S. If a person is required under section 161 of the Income Tax Assessment Act 1936 to furnish to the Commissioner of Taxation a return in respect of:
(a) income of the year of income ending on 30 June 1994; or
(b) income of a subsequent year of income;
the person must, if he or she had an accumulated HEC debt at 1 June immediately before the furnishing of the return, set out in the return:
(c) the amount of that debt; and
(d) any payments made since that day in respect of the person’s indebtedness to the Commonwealth under this Chapter.
Assessment
“106T. The Commissioner may, from any information in the Commissioner’s possession, whether from a return or otherwise, make an assessment of:
(a) the amount of the accumulated HEC debt of a person at 1 June immediately before the making of the assessment; and
(b) the amount required to be paid in respect of that accumulated HEC debt under section 106Q.
Application of Income Tax Assessment Act
“106U.(1) Subject to this Part, Part IV, and Division 1 of Part VI, of the Income Tax Assessment Act 1936 (‘Assessment Act’) apply, so far as they are capable of application, in relation to an HEC assessment debt of a person as if it were income tax assessed to be payable by a taxpayer by an assessment made under Part IV of that Act.
“(2) Sections 222A to 222F, 222 and 226G to 226ZB of the Assessment Act have effect as if any HEC assessment debt of a person were income tax payable by the person in respect of the year of income in respect of which the assessment of that debt was made.
Notification on notices of assessment of tax
“106V. If:
(a) the Commissioner is required to serve on a person a notice of assessment in respect of the person’s income of a year of income under section 174 of the Income Tax Assessment Act 1936; and
(b) an assessment (‘relevant assessment’) has been made in respect of the person of the amounts referred to in section 106T of this Act but notice of the relevant assessment has not been served on the person;
notice of the relevant assessment may be served by specifying the amounts concerned in the notice referred to in paragraph (a).
Power of Commissioner to defer assessment or reduce assessment to nil
“106W.(1) The Commissioner may, on written application by a person, defer the making of an assessment in relation to the person under section 106T if the Commissioner is of the opinion that:
(a) if the assessment were made, payment of the assessed amount would cause serious hardship to the person; or
(b) there are other special reasons that make it fair and reasonable to defer the making of the assessment.
“(2) The Commissioner may defer the assessment for any period that he or she thinks appropriate.
“(3) The Commissioner may, on written application by a person, amend an assessment made in relation to the person under section 106T so that no amount is payable under the assessment if the Commissioner is of the opinion that:
(a) payment of the assessed amount has caused or would cause serious hardship to the person; or
(b) there are other special reasons that make it fair and reasonable to make the amendment.
“(4) If an application is made under subsection (1) or (3), the Commissioner must as soon as practicable:
(a) consider the matter to which the application relates; and
(b) notify the applicant of the Commissioner’s decision on the application.
Review of decision of Commissioner
“106X.(1) Application may be made to the Administrative Appeals Tribunal for review of:
(a) a decision of the Commissioner under subsection 106W(1); or
(b) a decision of the Commissioner under subsection 106W(3) refusing to amend an assessment.
“(2) A notice under paragraph 106W(4)(b) relating to a decision that may be reviewed by the Tribunal must:
(a) include a statement to the effect that, if the person is dissatisfied with the decision of the Commissioner, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Tribunal for review of the decision; and
(b) except if subsection 28(4) of that Act applies, also include a statement to the effect that the person may request a statement under section 28 of that Act.
“(3) A failure to comply with subsection (2) in relation to a notification does not affect the validity of the notification or of the decision to which the notification relates.
“Division 4—Miscellaneous
Application of payments
“106Y. Any money paid by a person to meet the person’s debts to the Commonwealth under this Chapter is to be applied in payment of those debts as directed by the person.
“(2) If:
(a) the person has not given any directions; or
(b) the directions given do not adequately deal with the matter;
any money available is to be applied as follows:
(c) first, in discharge or reduction of any HEC assessment debts of the person;
(d) secondly, in discharge or reduction of any accumulated HEC debt of the person;
(e) thirdly, in discharge or reduction of:
(i) any semester debt of the person; or
(ii) if there is more than one such debt, those debts in the order in which they were incurred.
Indebtedness discharged by death
“106Z. Upon the death of a person who owes a debt (other than an HEC assessment debt) to the Commonwealth under this Chapter, the debt is taken to have been paid.
Secrecy
“106ZA. Section 78 has effect in relation to information disclosed or obtained under, or for the purposes of, this Chapter as if:
(a) the section were included in this Chapter; and
(b) any reference to an institution included a reference to the Agency.”.
Application of Income Tax Assessment Act
18. Section 106U of the Principal Act is amended by adding at the end the following subsections:
“(3) Division 2 of Part VI of the Assessment Act applies, so far as it is capable of application, in relation to the collection by instalments of an HEC assessment debt of a person as if the HEC assessment debt were income tax.
“(4) Division 3 of Part VI of the Assessment Act applies, so far as it is capable of application, in relation to the collection of an HEC assessment debt of a person as if the HEC assessment debt were income tax.”.
Disallowable instruments
19. Section 110 of the Principal Act is amended by adding at the end of paragraph (c) “or subsection 34A(6) or (7)”.
Further amendments of the Principal Act
20.(1) The Principal Act is further amended as set out in Part 1 of the Schedule.
(2) The Principal Act is also amended as set out in Part 2 of the Schedule.
PART 3—AMENDMENTS OF THE INCOME TAX ASSESSMENT ACT 1936
Principal Act
21. In this Part, “Principal Act” means the Income Tax Assessment Act 19362.
Losses and outgoings
22. Section 51 of the Principal Act is amended:
(a) by inserting after paragraph (6)(a) the following paragraph:
“(ab) a basic charge within the meaning of Chapter 5 of that Act; or”;
(b) by omitting from paragraph (6)(b) “that Chapter” and substituting “Chapter 5A of that Act”.
Deductions for expenses of self-education
23. Section 82A of the Principal Act is amended:
(a) by inserting after paragraph (a) of the definition of “expenses of self-education” in subsection (2) the following paragraph:
“(ab) a payment made to the Open Learning Agency of Australia in respect of any charge payable in respect of a unit of study undertaken by the taxpayer for the purposes of an approved course of study within the meaning of Chapter 5 of the Higher Education Funding Act 1988; or”;
(b) by omitting from paragraph (b) of that definition “that Chapter” and substituting “Chapter 5A of that Act”.
Objects of this Part
24. Section 202 of the Principal Act is amended by omitting from paragraph (c) all words after “contributions” and substituting “or charges payable by students in respect of the costs of courses of study provided by institutions of higher education; and”.
Application of deductions in payment of HEC assessment debts and FS assessment debts
25. Section 221ZY of the Principal Act is amended by omitting from the definition of “HEC assessment debt” in subsection (1) “4” and substituting “5A”.
PART 4—AMENDMENT OF THE TAXATION (INTEREST ON OVERPAYMENTS) ACT 1983
Principal Act
26. In this Part, “Principal Act” means the Taxation (Interest on Overpayments) Act 19833.
Interpretation
27. Section 3 of the Principal Act is amended by omitting from paragraph (a) of the definition of “relevant tax” in subsection (1) “72(1)” and substituting “106U(1)”.
SCHEDULE Section 20
FURTHER AMENDMENTS OF THE HIGHER EDUCATION
FUNDING ACT 1988
PART 1
Subsection 2(2):
Omit the subsection.
Section 17:
Omit paragraphs (e), (f) and (g), substitute the following paragraphs:
“(e) in the case of the year 1993—$2,936,081,000; and
(f) in the case of the year 1994—$3,461,072,000; and
(g) in the case of the year 1995—$3,523,613,000; and
(h) in the case of the year 1996—$3,565,408,000.”.
Subsection 20(3):
Omit paragraphs (e), (f) and (g), substitute the following paragraphs:
“(e) in the case of the year 1993—$54,108,000; and
(f) in the case of the year 1994—$55,026,000; and
(g) in the case of the year 1995—$55,026,000; and
(h) in the case of the year 1996—$55,026,000.”.
Subsection 21(6):
Omit paragraph (b), substitute the following paragraph:
“(b) for the year 1993—$33,958,000; and”.
Subsection 22A(5):
Omit paragraphs (a), (b) and (c), substitute the following paragraphs:
“(a) for the year 1993—$26,794,000; and
(b) for the year 1994—$17,483,000; and
(c) for the year 1995—$3,220,000; and
(d) for the year 1996—$204,000.”.
Subsection 23(4):
Omit paragraph (e), substitute the following paragraph:
“(e) in the case of the year 1993—$278,494,000; and”.
Subsection 23A(7):
Omit paragraph (b), substitute the following paragraph:
“(b) for the year 1993—$3,642,000; and”.
SCHEDULE—continued
Subsection 24(3):
Omit paragraphs (e), (f) and (g), substitute the following paragraphs:
“(e) in the case of the year 1993—$4,498,000; and
(f) in the case of the year 1994—$4,574,000; and
(g) in the case of the year 1995—$4,574,000; and
(h) in the case of the year 1996—$4,574,000.”.
Subsection 26(5):
Omit paragraph (e), substitute the following paragraph:
“(e) for the year 1993—$255,436,000.”.
PART 2
Subsection 27A(6):
Omit paragraphs (a) and (b), substitute the following paragraphs:
“(a) for the year 1994—$35,311,000; and
(b) for the year 1995—$35,311,000; and
(c) for the year 1996—$35,311,000.”.
NOTES
Higher Education Funding Act 1988
1. No. 2, 1989, as amended. For previous amendments, see No. 138, 1988; Nos. 80, 168 and 179, 1989; No. 122, 1990; Nos. 53, 177 and 216, 1991; and Nos. 74 and 158, 1992.
Income Tax Assessment Act 1936
2. No. 27, 1936, as amended. For previous amendments, see No. 88, 1936; No. 5, 1937; No. 46, 1938; No. 30, 1939; Nos. 17 and 65, 1940; Nos. 58 and 69, 1941; Nos. 22 and 50, 1942; No. 10, 1943; Nos. 3 and 28, 1944; Nos. 4 and 37, 1945; No. 6, 1946; Nos. 11 and 63, 1947; No. 44, 1948; No. 66, 1949; No. 48, 1950; No. 44, 1951; Nos. 4, 28 and 90, 1952; Nos. 1, 28, 45 and 81, 1953; No. 43, 1954; Nos. 18 and 62, 1955; Nos. 25, 30 and 101, 1956; Nos. 39 and 65, 1957; No. 55, 1958; Nos. 12, 70 and 85, 1959; Nos. 17, 18, 58 and 108, 1960; Nos. 17, 27 and 94, 1961; Nos. 39 and 98, 1962; Nos. 34 and 69, 1963; Nos. 46, 68, 110 and 115, 1964; Nos. 33, 103 and 143, 1965; Nos. 50 and 83, 1966; Nos. 19, 38, 76 and 85, 1967; Nos. 4, 70, 87 and 148, 1968; Nos. 18, 93 and 101, 1969; No. 87, 1970; Nos. 6, 54 and 93, 1971; Nos. 5, 46, 47, 65 and 85, 1972; Nos. 51, 52, 53, 164 and 165, 1973; No. 216, 1973 (as amended by No. 20, 1974); Nos. 26 and 126, 1974; Nos. 80 and 117, 1975; Nos. 50, 53, 56, 98, 143, 165 and 205, 1976; Nos. 57, 126 and 127, 1977; Nos. 36, 57, 87, 90, 123, 171 and 172, 1978; Nos. 12, 19, 27, 43, 62, 146, 147 and 149, 1979; Nos. 19, 24, 57, 58, 124, 133, 134 and 159, 1980; Nos. 61, 92, 108, 109, 110, 111, 154 and 175, 1981; Nos. 29, 38, 39, 76, 80, 106 and 123, 1982; Nos. 14, 25, 39, 49,
NOTES—continued
51, 54 and 103, 1983; Nos. 14, 42, 47, 63, 76, 115, 124, 165 and 174, 1984; No. 123, 1984 (as amended by No. 65, 1985); Nos. 47, 49, 104, 123, 168 and 174, 1985; No. 173, 1985 (as amended by No. 49, 1986); Nos. 41, 46, 48, 51, 109, 112 and 154, 1986; No. 49, 1986 (as amended by No. 141, 1987); No. 52, 1986 (as amended by No. 141, 1987); No. 90, 1986 (as amended by No. 141, 1987); Nos. 23, 58, 61, 120, 145 and 163, 1987; No. 62, 1987 (as amended by No. 108, 1987); No. 108, 1987 (as amended by No. 138, 1987); No. 138, 1987 (as amended by No. 11, 1988); No. 139, 1987 (as amended by Nos. 11 and 78, 1988); Nos. 8, 11, 59, 75, 78, 80, 87, 95, 97, 127 and 153, 1988; Nos. 2, 11, 56, 70, 73, 105, 107, 129, 163 and 167, 1989; No. 97, 1989 (as amended by No. 105, 1989); Nos. 20, 35, 45, 57, 58, 60, 61, 87, 119 and 135, 1990; Nos. 4, 5, 6, 48, 55, 100, 203, 208 and 216, 1991; and Nos. 3, 35, 69, 70, 80, 81, 92, 98, 101, 118, 138, 167, 190, 191, 208, 223, 224, 227, 237 and 238, 1992; and Nos. 7, 17, 18, 27 and 32, 1993.
Taxation (Interest on Overpayments) Act 1983
3. No. 12, 1983, as amended. For previous amendments, see No. 123, 1984; Nos. 4, 47, 49 and 123, 1985; Nos. 41, 46, 48 and 154, 1986; Nos. 58, 61, 62 and 145, 1987; No. 97, 1988; No. 2, 1989; No. 60, 1990; No. 216, 1991; and Nos. 118 and 138, 1992.
[Minister’s second reading speech made in—
House of Representatives on 28 September 1993
Senate on 26 October 1993]