Federal Register of Legislation - Australian Government

Primary content

Higher Education Support Act 2003

Authoritative Version
  • - C2014C00113
  • In force - Superseded Version
  • View Series
Act No. 149 of 2003 as amended, taking into account amendments up to Higher Education Support Amendment (Asian Century) Act 2013
An Act relating to the funding of higher education, and for other purposes
Administered by: Prime Minister and Cabinet; Education and Training
Registered 12 Mar 2014
Start Date 12 Mar 2014
End Date 30 Nov 2015

Commonwealth Coat of Arms

Higher Education Support Act 2003

No. 149, 2003 as amended

Compilation start date:                     12 March 2014

Includes amendments up to:            Act No. 112, 2013

 

About this compilation

This compilation

This is a compilation of the Higher Education Support Act 2003 as in force on 12 March 2014. It includes any commenced amendment affecting the legislation to that date.

This compilation was prepared on 12 March 2014.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of each amended provision.

Uncommenced amendments

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in the endnotes.

Application, saving and transitional provisions for provisions and amendments

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

Modifications

If a provision of the compiled law is affected by a modification that is in force, details are included in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled law has expired or otherwise ceased to have effect in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Chapter 1—Introduction                                                                                       1

Division 1—Preliminary                                                                                              1

1‑1......................... Short title............................................................................ 1

1‑5......................... Commencement.................................................................. 1

1‑10....................... Identifying defined terms.................................................... 2

Division 2—Objects                                                                                                       3

2‑1......................... Objects of this Act.............................................................. 3

Division 3—Overview of this Act                                                                           4

3‑1......................... General............................................................................... 4

3‑5......................... Grants for higher education assistance etc. (Chapter 2)...... 4

3‑10....................... Assistance to students (Chapter 3)...................................... 4

3‑15....................... Repayment of loans (Chapter 4)......................................... 5

3‑20....................... Administration (Chapter 5)................................................. 5

3‑30....................... VET FEE‑HELP Assistance Scheme (Schedule 1A)......... 5

Division 5—Application of Act to Table C providers                                 6

5‑1......................... Application of Act to Table C providers............................. 6

Division 6—Schedule 1A                                                                                             9

6‑1......................... Schedule 1A....................................................................... 9

Chapter 2—Grants for higher education assistance etc.    10

Division 8—Introduction                                                                                          10

8‑1......................... What this Chapter is about................................................ 10

Part 2‑1—Higher education providers                                                                    12

Division 13—Introduction                                                                                        12

13‑1....................... What this Part is about...................................................... 12

13‑5....................... The Higher Education Provider Guidelines...................... 12

Division 16—What is a higher education provider?                                  13

Subdivision 16‑A—General                                                                                   13

16‑1....................... Meaning of higher education provider............................. 13

16‑5....................... When a body becomes or ceases to be a higher education provider         13

Subdivision 16‑B—Which bodies are listed providers?                                 13

16‑10..................... Listed providers................................................................ 13

16‑15..................... Table A providers............................................................. 14

16‑20..................... Table B providers............................................................. 15

16‑22..................... Table C providers............................................................. 15

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

16‑25..................... Approval by the Minister.................................................. 16

16‑27..................... Body must be a registered higher education provider....... 18

16‑30..................... The tuition assurance requirements................................... 18

16‑31..................... Tuition assurance requirements exemption for approvals. 18

16‑40..................... Application....................................................................... 18

16‑45..................... Minister may seek further information.............................. 19

16‑50..................... Minister to decide application........................................... 19

16‑55..................... Approvals are legislative instruments............................... 20

16‑60..................... Conditions of approval..................................................... 20

16‑65..................... Minister to cause higher education provider to be notified of change in condition of approval                20

16‑70..................... Variation of approval if body’s name changes.................. 20

Division 19—What are the quality and accountability requirements?  22

Subdivision 19‑A—General                                                                                   22

19‑1....................... The quality and accountability requirements..................... 22

Subdivision 19‑B—The financial viability requirements                              22

19‑5....................... Basic requirement............................................................. 22

19‑10..................... Financial information must be provided............................ 22

19‑12..................... Minister to have regard to financial information............... 23

Subdivision 19‑C—The quality requirements                                                   23

19‑15..................... Provider must maintain quality......................................... 23

Subdivision 19‑D—The fairness requirements                                                 23

19‑30..................... Basic requirement............................................................. 23

19‑35..................... Benefits and opportunities must be available equally to all students         24

19‑37..................... Requiring membership of certain organisations or payment of certain amounts       24

19‑38..................... Higher education providers’ expenditure of student services and amenities fees     26

19‑40..................... Compliance with the tuition assurance requirements......... 29

19‑45..................... Student grievance and review procedures......................... 29

19‑50..................... Higher education providers to appoint review officers..... 30

19‑55..................... Review officers not to review own decisions................... 31

19‑60..................... Procedures relating to personal information...................... 31

Subdivision 19‑E—The compliance requirements                                          32

19‑65..................... Basic requirements............................................................ 32

19‑67..................... Special requirements for student services, amenities, representation and advocacy in 2012 and later years.......................................................................................... 32

19‑70..................... Provider to provide statement of general information....... 33

19‑75..................... Notice of events that affect provider’s ability to comply with conditions of Commonwealth assistance  33

19‑77..................... Notice of events affecting accreditation............................. 33

19‑78..................... Notice of events significantly affecting TEQSA registration 34

19‑80..................... Compliance assurance—provider (other than Table A provider)             34

19‑82..................... Compliance notices........................................................... 35

Subdivision 19‑F—What are the contribution and fee requirements?       37

19‑85..................... Basic requirement............................................................. 37

19‑87..................... Determining student contribution amounts for all places in units             37

19‑90..................... Determining tuition fees for all students........................... 38

19‑95..................... Schedules of student contribution amounts for places and tuition fees     39

19‑100................... Limits on fees for courses of study................................... 40

19‑102................... Meaning of fee.................................................................. 41

19‑105................... Meaning of tuition fee....................................................... 41

Subdivision 19‑G—The compact and academic freedom requirements    42

19‑110................... Table A providers and Table B providers must enter into mission based compacts 42

19‑115................... Provider to have policy upholding free intellectual inquiry 42

Division 22—When does a body cease to be a higher education provider?        43

Subdivision 22‑A—General                                                                                   43

22‑1....................... Cessation of approval as a provider.................................. 43

Subdivision 22‑AA—Revocation of approval if registration ceases or winding up order made               43

22‑2....................... Automatic revocation of approval if registration ceases.... 43

22‑3....................... Automatic revocation of approval if winding up order made 44

Subdivision 22‑B—Revocation for cause                                                           45

22‑5....................... Revocation of approval if application for approval as a provider is false or misleading           45

22‑7....................... Revocation of approval if providing education and/or conducting research ceases to be the body’s principal purpose............................................................................. 45

22‑10..................... Revocation of approval if status or accreditation changes. 45

22‑15..................... Revocation of approval as a provider for a breach of conditions or the quality and accountability requirements.......................................................................................... 47

22‑17..................... Revocation of approval as a provider if provider etc. not a fit and proper person    48

Subdivision 22‑C—Process for decisions on revocation under Subdivision 22‑B         48

22‑20..................... Process for revoking approval.......................................... 48

22‑25..................... Determination retaining approval as a provider in respect of existing students        50

22‑30..................... Suspension of approval as a provider............................... 50

22‑32..................... Determination retaining approval as a provider in respect of existing students following suspension of approval............................................................................ 51

Subdivision 22‑D—Revocation of approval on application                          52

22‑40..................... Revocation of approval as a provider on application......... 52

Subdivision 22‑E—Notice of approval or revocation ceasing to have effect under the Legislative Instruments Act 2003                                                                                                52

22‑45..................... Notice of approval ceasing to have effect under the Legislative Instruments Act 2003            52

22‑50..................... Notice of revocation ceasing to have effect under the Legislative Instruments Act 2003          53

Part 2‑2—Commonwealth Grant Scheme                                                            55

Division 27—Introduction                                                                                        55

27‑1....................... What this Part is about...................................................... 55

27‑5....................... Guidelines......................................................................... 55

Division 30—Which higher education providers are eligible for a grant?          56

Subdivision 30‑A—Basic rules                                                                              56

30‑1....................... Eligibility for grants.......................................................... 56

Subdivision 30‑B—Allocation of places                                                             56

30‑10..................... Allocation of places.......................................................... 56

30‑12..................... Designated courses of study............................................. 57

30‑15..................... Funding clusters............................................................... 57

30‑20..................... National priorities............................................................. 58

Subdivision 30‑C—Funding agreements                                                            58

30‑25..................... Funding agreements.......................................................... 58

30‑27..................... Funding agreement may specify maximum basic grant amounts              60

30‑28..................... Funding agreement to be published.................................. 61

Division 33—How are grant amounts worked out?                                  62

Subdivision 33‑A—Basic rule                                                                               62

33‑1....................... How grant amount is worked out..................................... 62

Subdivision 33‑B—Basic grant amounts                                                            62

33‑5....................... Basic grant amounts.......................................................... 62

33‑10..................... Commonwealth contribution amounts.............................. 65

33‑30..................... Working out the number of Commonwealth supported places provided  66

33‑35..................... Funding clusters in which units of study are included...... 67

Subdivision 33‑C—Adjustments                                                                           67

33‑37..................... Adjustments for breach of section 19‑37.......................... 67

Subdivision 33‑D—Special purpose advances                                                  69

33‑40..................... Advances for certain purposes.......................................... 69

Division 36—What are the conditions of receiving a grant?                70

Subdivision 36‑A—General                                                                                   70

36‑1....................... Condition of grant to comply with this Division............... 70

Subdivision 36‑B—Conditions relating to Commonwealth supported students             70

36‑5....................... Meaning of Commonwealth supported student................ 70

36‑10..................... Advice on whether a person is a Commonwealth supported student       71

36‑15..................... Persons not to be advised they are Commonwealth supported 74

36‑20..................... Providers to repay amounts—special circumstances......... 75

36‑21..................... Special circumstances....................................................... 76

36‑22..................... Application period............................................................ 77

36‑23..................... Dealing with applications.................................................. 77

36‑24A.................. Providers to repay amounts—provider ceases to provide course             77

36‑24B.................. Providers to repay amounts—no tax file numbers............ 78

36‑24C.................. Secretary may act if provider is unable to......................... 79

Subdivision 36‑C—Conditions relating to enrolment                                     79

36‑25..................... Continued support for Commonwealth supported students 79

36‑30..................... Providers to enrol persons as Commonwealth supported students          80

36‑40..................... Providers to cancel enrolments in certain circumstances... 82

Subdivision 36‑D—Conditions relating to student contribution amounts  83

36‑45..................... Limits on student contribution amounts............................ 83

36‑50..................... Provider must not accept up‑front payments of more than 90% of student contribution amounts            83

Subdivision 36‑E—Conditions relating to tuition fees                                    83

36‑55..................... Tuition fees for non‑Commonwealth supported students. 83

Subdivision 36‑F—Other conditions                                                                   84

36‑60..................... Providers to meet the quality and accountability requirements 84

36‑65..................... Providers to comply with funding agreement................... 84

36‑70..................... Providers to comply with the Commonwealth Grant Scheme Guidelines                85

Part 2‑3—Other grants                                                                                                     86

Division 41—Other grants                                                                                       86

41‑1....................... What this Part is about...................................................... 86

41‑5....................... The Other Grants Guidelines............................................ 86

41‑10..................... Eligibility for grants under this Part.................................. 86

41‑15..................... Grants may be paid under programs................................. 88

41‑20..................... Approval of grants............................................................ 89

41‑25..................... Conditions on grants......................................................... 89

41‑30..................... Amount of a grant............................................................. 89

41‑35..................... Amounts payable under this Part...................................... 90

41‑40..................... Rollover of grant amounts................................................ 90

41‑45..................... Maximum payments for other grants under this Part........ 91

41‑50..................... List of maximum grant amounts....................................... 92

Part 2‑4—Commonwealth scholarships                                                                 93

Division 46—Commonwealth scholarships                                                     93

46‑1....................... What this Part is about...................................................... 93

46‑5....................... The Commonwealth Scholarships Guidelines.................. 93

46‑10..................... Classes of Commonwealth scholarships........................... 93

46‑13..................... Eligibility of students to receive directly‑paid standard Commonwealth scholarships              93

46‑15..................... Eligibility of higher education providers to receive grants for certain Commonwealth scholarships        94

46‑20..................... Other matters relating to Commonwealth scholarships..... 95

46‑25..................... Condition of grants........................................................... 96

46‑30..................... Amounts payable under this Part...................................... 97

46‑35..................... Rollover of grant amounts................................................ 97

46‑40..................... Maximum payments for Commonwealth scholarships..... 97

Part 2‑5—Reduction and repayment of grants                                               100

Division 51—Introduction                                                                                      100

51‑1....................... What this Part is about.................................................... 100

51‑5....................... The Reduction and Repayment Guidelines..................... 100

Division 54—In what circumstances may a grant be reduced or required to be repaid?           101

54‑1....................... Decision as to reduction or repayment of a grant............ 101

54‑5....................... Appropriateness of requiring reduction or repayment of grant 101

Division 57—What is the amount of a reduction or repayment?     103

57‑1....................... Reduction in amount of grants........................................ 103

57‑5....................... Amount of the repayment............................................... 103

Division 60—How are decisions reducing a grant or requiring repayment of a grant made? 104

60‑1....................... Procedure prior to decision............................................. 104

60‑5....................... Notification of decision................................................... 104

60‑10..................... When a decision takes effect........................................... 105

Chapter 3—Assistance to students                                                           106

Division 65—Introduction                                                                                      106

65‑1....................... What this Chapter is about.............................................. 106

Part 3‑2—HECS‑HELP assistance                                                                          107

Division 87—Introduction                                                                                      107

87‑1....................... What this Part is about.................................................... 107

87‑5....................... The HECS‑HELP Guidelines......................................... 107

Division 90—Who is entitled to HECS‑HELP assistance?                   108

90‑1....................... Entitlement to HECS‑HELP assistance........................... 108

90‑5....................... Citizenship or residency requirements............................ 108

90‑10..................... Students not entitled to HECS‑HELP assistance............ 109

Division 93—How are amounts of HECS‑HELP assistance worked out?           110

93‑1....................... The amount of HECS‑HELP assistance for a unit of study 110

93‑5....................... Student contribution amounts......................................... 110

93‑10..................... Maximum student contribution amounts for places........ 111

93‑15..................... Up‑front payments.......................................................... 112

Division 96—How are amounts of HECS‑HELP assistance paid?  114

96‑1....................... Payments to higher education providers—no up‑front payment of student contribution amount             114

96‑5....................... Payments to higher education providers—partial up‑front payment of student contribution amount       114

96‑10..................... Payments to higher education providers—full up‑front payment of student contribution amount            116

Part 3‑3—FEE‑HELP assistance                                                                              117

Division 101—Introduction                                                                                   117

101‑1..................... What this Part is about.................................................... 117

101‑5..................... The FEE‑HELP Guidelines............................................ 117

Division 104—Who is entitled to FEE‑HELP assistance?                    118

Subdivision 104‑A—Basic rules                                                                         118

104‑1..................... Entitlement to FEE‑HELP assistance.............................. 118

104‑2..................... Failure by a student to complete previous units accessed through Open Universities Australia               119

104‑3..................... Failure by Open Universities Australia to comply with FEE‑HELP Guidelines etc.                119

104‑4..................... Failure by Open Universities Australia to set tuition fees and census date               120

104‑5..................... Citizenship or residency requirements............................ 122

104‑10................... Course requirements....................................................... 123

Subdivision 104‑B—FEE‑HELP balances                                                       124

104‑15................... A person’s FEE‑HELP balance...................................... 124

104‑20................... The FEE‑HELP limit...................................................... 124

104‑25................... Main case of re‑crediting a person’s FEE‑HELP balance 125

104‑27................... Re‑crediting a person’s FEE‑HELP balance—no tax file number            126

104‑30................... Special circumstances..................................................... 127

104‑35................... Application period.......................................................... 127

104‑40................... Dealing with applications................................................ 128

104‑42................... Re‑crediting a person’s FEE‑HELP balance if provider ceases to provide course of which unit forms part........................................................................................ 129

Subdivision 104‑C—Bridging courses for overseas‑trained professionals 130

104‑45................... Meaning of bridging course for overseas‑trained professionals             130

104‑50................... Assessment statements................................................... 132

104‑55................... Meaning of assessing body............................................ 133

104‑60................... Meaning of listed professional occupations................... 133

104‑65................... Occupation includes part of an occupation...................... 133

104‑70................... Requirements for entry to an occupation......................... 134

Division 107—How are amounts of FEE‑HELP assistance worked out?            135

107‑1..................... The amount of FEE‑HELP assistance for a unit of study 135

107‑5..................... Up‑front payments.......................................................... 135

107‑10................... Amounts of FEE‑HELP assistance and VET FEE‑HELP assistance must not exceed the FEE‑HELP balance........................................................................................ 135

Division 110—How are amounts of FEE‑HELP assistance paid?   138

110‑1..................... Payments........................................................................ 138

110‑5..................... Effect of FEE‑HELP balance being re‑credited............... 138

Part 3‑4—OS‑HELP assistance                                                                                 140

Division 115—Introduction                                                                                   140

115‑1..................... What this Part is about.................................................... 140

115‑5..................... The OS‑HELP Guidelines.............................................. 140

Division 118—Who is entitled to OS‑HELP assistance?                       141

118‑1..................... Entitlement to OS‑HELP assistance................................ 141

118‑2..................... Entitlement to supplementary amount for Asian language study              142

118‑5..................... Citizenship or residency requirements............................ 143

118‑7..................... Prior study requirements................................................. 143

118‑10................... Overseas study requirements.......................................... 143

118‑15................... Selection of students for receipt of OS‑HELP assistance and supplementary amounts for Asian language study............................................................................... 144

Division 121—How are amounts of OS‑HELP assistance worked out?               145

121‑1..................... The amount of OS‑HELP assistance for a period........... 145

121‑5..................... Maximum OS‑HELP (overseas study) amount.............. 146

121‑10................... Minimum OS‑HELP (overseas study) amount............... 146

121‑15................... Maximum OS‑HELP (Asian language study) amount... 146

121‑20................... Minimum OS‑HELP (Asian language study) amount.... 146

Division 124—How are amounts of OS‑HELP assistance paid?      148

124‑1..................... Amounts of OS‑HELP assistance are lent to students.... 148

Part 3‑5—SA‑HELP assistance                                                                                 149

Division 125—Introduction                                                                                   149

125‑1..................... What this Part is about.................................................... 149

Division 126—Who is entitled to SA‑HELP assistance?                        150

126‑1..................... Entitlement to SA‑HELP assistance................................ 150

126‑5..................... Citizenship or residency requirements............................ 150

Division 127—How are amounts of SA‑HELP assistance worked out?                152

127‑1..................... The amount of SA‑HELP assistance for a student services and amenities fee         152

Division 128—How are amounts of SA‑HELP assistance paid?       153

128‑1..................... Payments to higher education providers of loans to students 153

128‑5..................... Repayment by higher education provider if student does not have tax file number  153

Chapter 4—Repayment of loans                                                               154

Division 129—Introduction                                                                                   154

129‑1..................... What this Chapter is about.............................................. 154

Part 4‑1—Indebtedness                                                                                                  155

Division 134—Introduction                                                                                   155

134‑1..................... What this Part is about.................................................... 155

Division 137—How do HELP debts arise?                                                   156

137‑1..................... HELP debts.................................................................... 156

137‑5..................... HECS‑HELP debts......................................................... 156

137‑10................... FEE‑HELP debts............................................................ 157

137‑15................... OS‑HELP debts.............................................................. 157

137‑16................... SA‑HELP debts.............................................................. 158

137‑18................... VET FEE‑HELP debts................................................... 159

137‑20................... HELP debt discharged by death...................................... 159

Division 140—How are accumulated HELP debts worked out?      161

Subdivision 140‑A—Outline of this Division                                                   161

140‑1..................... Outline of this Division.................................................. 161

Subdivision 140‑B—Former accumulated HELP debts                               162

140‑5..................... Working out a former accumulated HELP debt.............. 162

140‑10................... HELP debt indexation factor........................................... 166

140‑15................... Index numbers................................................................ 166

140‑20................... Publishing HELP debt indexation factors....................... 167

Subdivision 140‑C—Accumulated HELP debts                                              167

140‑25................... Working out an accumulated HELP debt........................ 167

140‑30................... Rounding of amounts..................................................... 170

140‑35................... Accumulated HELP debt discharges earlier debts........... 170

140‑40................... Accumulated HELP debt discharged by death................ 170

Part 4‑2—Discharge of indebtedness                                                                     171

Division 148—Introduction                                                                                   171

148‑1..................... What this Part is about.................................................... 171

148‑5..................... The HECS‑HELP Benefit Guidelines............................. 171

Division 151—How is indebtedness voluntarily discharged?              172

151‑1..................... Voluntary repayments in respect of debts....................... 172

151‑5..................... Voluntary repayment bonus relating to HELP debts....... 172

151‑10................... Application of voluntary repayments.............................. 173

151‑15................... Refunding of payments................................................... 173

Division 154—How is indebtedness compulsorily discharged?          175

Subdivision 154‑A—Liability to repay amounts                                            175

154‑1..................... Liability to repay amounts............................................... 175

154‑3..................... Reduction of liability by HECS‑HELP benefit............... 175

154‑5..................... Repayment income.......................................................... 176

154‑10................... Minimum repayment income.......................................... 176

154‑15................... Repayable debt for an income year................................. 177

Subdivision 154‑B—Amounts payable to the Commonwealth                   177

154‑20................... Amounts payable to the Commonwealth........................ 177

154‑25................... Indexation....................................................................... 179

154‑30................... Publishing indexed amounts........................................... 179

Subdivision 154‑C—Assessments                                                                       180

154‑35................... Commissioner may make assessments........................... 180

154‑40................... Notification of notices of assessment of tax.................... 180

154‑45................... Commissioner may defer making assessments............... 181

154‑50................... Commissioner may amend assessments......................... 181

154‑55................... Higher education providers etc. to provide information to Commissioner               182

Subdivision 154‑D—Application of tax legislation                                       183

154‑60................... Returns, assessments, collection and recovery................ 183

154‑65................... Charges and civil penalties for failing to meet obligations 183

154‑70................... Pay as you go (PAYG) withholding.............................. 184

154‑80................... Pay as you go (PAYG) instalments................................ 184

154‑85................... Reduction of compulsory repayment amount by HECS‑HELP benefit    184

Division 157—HECS‑HELP benefit                                                                 185

Subdivision 157‑A—Who is eligible for the HECS‑HELP benefit?          185

157‑1..................... Application for the HECS‑HELP benefit........................ 185

157‑10................... Providing application to Commissioner.......................... 185

Subdivision 157‑B—What is the amount of the HECS‑HELP benefit?    185

157‑15................... Amount of HECS‑HELP benefit.................................... 185

Subdivision 157‑C—Determination of applications                                      185

157‑20................... Commissioner must determine application...................... 185

157‑25................... Notifying applicant of determination............................... 186

157‑30................... Review of determinations............................................... 186

Chapter 5—Administration                                                                            187

Division 159—Introduction                                                                                   187

159‑1..................... What this Chapter is about.............................................. 187

159‑5..................... The Administration Guidelines....................................... 187

Part 5‑1—Payments by the Commonwealth                                                     188

Division 164—Payments by the Commonwealth                                       188

164‑1..................... What this Part is about.................................................... 188

164‑5..................... Time and manner of payments........................................ 188

164‑10................... Advances........................................................................ 188

164‑15................... Overpayments of Commonwealth grants........................ 189

164‑17................... Overpayments of Commonwealth scholarships to students 189

164‑18................... Repayment of Commonwealth scholarships paid to students—breach of condition                189

164‑20................... Rounding of amounts..................................................... 190

Part 5‑2—Administrative requirements on higher education providers  191

Division 169—Administrative requirements on higher education providers      191

169‑1..................... What this Part is about.................................................... 191

169‑5..................... Notices............................................................................ 191

169‑10................... Correction of notices....................................................... 192

169‑15................... Charging student contribution amounts and tuition fees. 193

169‑20................... Exempt students.............................................................. 194

169‑25................... Determining census dates and EFTSL values................. 196

169‑27................... Meaning of EFTSL......................................................... 197

169‑28................... Meaning of EFTSL value................................................ 197

169‑30................... Communications with the Commonwealth concerning students etc.        198

169‑35................... 6 week cut off for corrections affecting entitlement to Commonwealth assistance   199

Part 5‑3—Electronic communications                                                                   200

Division 174—Electronic communications                                                    200

174‑1..................... What this Part is about.................................................... 200

174‑5..................... Guidelines may deal with electronic communications..... 200

Part 5‑4—Management of information                                                                202

Division 179—Protection of personal information                                   202

179‑1..................... What this Division is about............................................. 202

179‑5..................... Meaning of personal information................................... 202

179‑10................... Use of personal information........................................... 202

179‑15................... Meanings of officer etc. and official employment............ 203

179‑20................... When information is disclosed in the course of official employment       205

179‑25................... Commissioner may disclose information........................ 206

179‑30................... Oath or affirmation to protect information...................... 207

179‑35................... Unauthorised access to, or modification of, personal information            207

179‑40................... Officer may use information........................................... 208

179‑45................... This Division does not limit disclosure or use of information  208

Division 180—Disclosure or use of Higher Education Support Act information             209

180‑1..................... What this Division is about............................................. 209

180‑5..................... Meaning of Higher Education Support Act information. 209

180‑10................... Disclosure and use by Commonwealth officers.............. 209

180‑15................... Disclosure of information to TEQSA............................. 209

180‑20................... Disclosure of information to the National VET Regulator 210

180‑25................... Disclosure of information to other bodies....................... 210

180‑30................... Use of information to conduct surveys........................... 212

180‑35................... This Division does not limit disclosure or use of information  212

Division 182—Other rules about information                                             213

182‑1..................... Minister may seek information from TEQSA and relevant VET regulator              213

Part 5‑5—Tax file numbers                                                                                         214

Division 184—Introduction                                                                                   214

184‑1..................... What this Part is about.................................................... 214

Division 187—What are the tax file number requirements for assistance under Chapter 3?   215

187‑1..................... Meeting the tax file number requirements....................... 215

187‑2..................... Who is an appropriate officer?........................................ 217

187‑5..................... Student to notify tax file number when issued................ 218

Division 190—In what circumstances can higher education providers and Open Universities Australia be notified of tax file number matters?                                       219

190‑1..................... When tax file numbers are issued etc.............................. 219

190‑5..................... When tax file numbers are altered................................... 219

190‑10................... When tax file numbers are incorrectly notified—students with tax file numbers      220

190‑15................... When tax file numbers are incorrectly notified—students without tax file numbers 220

190‑20................... When applications are refused or tax file numbers are cancelled              221

Division 193—Other provisions relating to tax file numbers             223

193‑1..................... Giving information about tax file number requirements.. 223

193‑5..................... No entitlement to HECS‑HELP assistance for students without tax file numbers    226

193‑10................... No entitlement to FEE‑HELP assistance for students without tax file numbers       227

193‑15................... No entitlement to SA‑HELP assistance for students without tax file numbers         228

Part 5‑6—Indexation                                                                                                        230

Division 198—Indexation                                                                                       230

198‑1..................... What this Part is about.................................................... 230

198‑5..................... The amounts that are to be indexed................................. 230

198‑10................... Indexing amounts........................................................... 231

198‑15................... Meaning of indexation factor.......................................... 231

198‑20................... Meaning of index number............................................... 231

Part 5‑7—Review of decisions                                                                                    233

Division 203—Introduction                                                                                   233

203‑1..................... What this Part is about.................................................... 233

Division 206—Which decisions are subject to review?                          234

206‑1..................... Reviewable decisions etc................................................ 234

206‑5..................... Deadlines for making reviewable decisions.................... 235

206‑10................... Decision maker must give reasons for reviewable decisions 236

Division 209—How are decisions reconsidered?                                       237

209‑1..................... Reviewer of decisions..................................................... 237

209‑5..................... Reviewer may reconsider reviewable decisions.............. 237

209‑10................... Reconsideration of reviewable decisions on request....... 238

Division 212—Which decisions are subject to AAT review?              240

212‑1..................... AAT review of reviewable decisions.............................. 240

Chapter 7—Miscellaneous                                                                                241

238‑1..................... Delegations by Secretary................................................ 241

238‑5..................... Delegations by Minister.................................................. 241

238‑7..................... Review of impact of Act................................................. 242

238‑8..................... Extent of Commissioner’s general administration of this Act  242

238‑10................... Guidelines....................................................................... 242

238‑12................... Appropriation................................................................. 243

238‑15................... Regulations..................................................................... 243

Schedule 1A—VET FEE‑HELP Assistance Scheme              245

1............................ What this Schedule is about............................................ 245

Part 1—VET providers                                                                                                  246

Division 1—Introduction                                                                                        246

2............................ What this Part is about.................................................... 246

3............................ The VET Guidelines....................................................... 246

Division 3—What is a VET provider?                                                            247

Subdivision 3‑A—General                                                                                   247

4............................ Meaning of VET provider............................................... 247

5............................ When a body becomes or ceases to be a VET provider.. 247

Subdivision 3‑B—How are bodies approved as VET providers?              247

6............................ Approval by the Minister................................................ 247

7............................ The VET tuition assurance requirements........................ 249

8............................ VET tuition assurance requirements exemption for approvals 249

9............................ Application..................................................................... 249

10.......................... Minister may seek further information............................ 250

11.......................... Minister to decide application......................................... 250

12.......................... Approvals are legislative instruments............................. 251

12A....................... Conditions of approval................................................... 251

12B........................ Minister to cause VET provider to be notified of change in condition of approval  251

12C........................ Variation of approval if body’s name changes................ 252

Division 4—What are the VET quality and accountability requirements?         253

Subdivision 4‑A—General                                                                                   253

13.......................... The VET quality and accountability requirements........... 253

Subdivision 4‑B—The VET financial viability requirements                    253

14.......................... Basic requirement........................................................... 253

15.......................... Financial information must be provided.......................... 253

16.......................... Minister to have regard to financial information............. 254

Subdivision 4‑C—The VET quality requirements                                         254

17.......................... Provider must maintain quality....................................... 254

Subdivision 4‑D—The VET fairness requirements                                       255

18.......................... Equal benefits and opportunity requirements.................. 255

19.......................... Student grievance and review requirements.................... 255

20.......................... Tuition assurance requirements....................................... 255

21.......................... VET providers to appoint review officers....................... 255

22.......................... Review officers not to review own decisions................. 256

23.......................... Procedures relating to personal information.................... 256

Subdivision 4‑E—The VET compliance requirements                                 256

23A....................... Basic requirement........................................................... 256

24.......................... VET provider to provide statement of general information 257

25.......................... Notice of events that affect provider’s ability to comply with VET quality and accountability requirements........................................................................................ 257

25A....................... Copy of notice given to National VET Regulator about material changes                258

26.......................... Compliance assurance—provider................................... 258

26A....................... Compliance notices......................................................... 259

Subdivision 4‑F—The VET fee requirements                                                 261

27.......................... Determining tuition fees for all students......................... 261

27A....................... Requirements in the VET Guidelines.............................. 262

28.......................... Schedules of VET tuition fees........................................ 262

Division 5—When does a body cease to be a VET provider?            265

Subdivision 5‑A—General                                                                                   265

29.......................... Cessation of approval as a provider................................ 265

29A....................... Minister to notify relevant VET Regulator of cessation of approval        265

Subdivision 5‑AA—Revocation of approval if registration ceases or winding up order made 265

29B........................ Automatic revocation of approval if registration ceases.. 265

29C........................ Automatic revocation of approval if winding up order made 266

Subdivision 5‑B—Revocation for cause                                                           267

30.......................... Revocation of approval if application for approval as a provider is false or misleading           267

30A....................... Revocation of approval if body’s links to Australia are broken               267

31.......................... Revocation of approval if providing education ceases to be the body’s principal purpose       267

32A....................... Revocation of approval if body ceases to offer VET courses of study     267

33.......................... Revocation of approval as a provider for a breach of the VET quality and accountability requirements or of conditions....................................................................... 268

33A....................... Revocation of approval as a provider if provider etc. not a fit and proper person    268

Subdivision 5‑C—Process for decisions on revocation under Subdivision 5‑B              269

34.......................... Process for revoking approval........................................ 269

35.......................... Determination retaining approval as a provider in respect of existing students        270

36.......................... Suspension of approval as a provider............................. 271

37.......................... Determination retaining approval as a provider in respect of existing students following suspension of approval.......................................................................... 271

Subdivision 5‑D—Revocation of approval on application                          272

39.......................... Revocation of approval as a provider on application....... 272

Subdivision 5‑E—Notice of approval or revocation ceasing to have effect under the Legislative Instruments Act 2003                                                                                              273

39A....................... Notice of approval ceasing to have effect under the Legislative Instruments Act 2003            273

39B........................ Notice of revocation ceasing to have effect under the Legislative Instruments Act 2003          273

Part 2—VET FEE‑HELP assistance                                                                     275

Division 6—Introduction                                                                                        275

40.......................... What this Part is about.................................................... 275

41.......................... The VET Guidelines....................................................... 275

Division 7—Who is entitled to VET FEE‑HELP assistance?              276

Subdivision 7‑A—Basic rules                                                                              276

43.......................... Entitlement to VET FEE‑HELP assistance..................... 276

44.......................... Citizenship or residency requirements............................ 277

45.......................... Course requirements....................................................... 277

45A....................... VET unit of study not undertaken as part of VET course of study          278

Subdivision 7‑B—FEE‑HELP balances                                                           278

46.......................... Main case of re‑crediting a person’s FEE‑HELP balance 278

47.......................... Re‑crediting a person’s FEE‑HELP balance—no tax file number            279

48.......................... Special circumstances..................................................... 280

49.......................... Application period.......................................................... 280

50.......................... Dealing with applications................................................ 280

51.......................... Re‑crediting a person’s FEE‑HELP balance if provider ceases to provide course of which unit forms part........................................................................................ 281

Division 8—How are amounts of VET FEE‑HELP assistance worked out?      282

52.......................... The amount of VET FEE‑HELP assistance for a VET unit of study       282

53.......................... Up‑front payments.......................................................... 282

54.......................... Amounts of VET FEE‑HELP assistance and FEE‑HELP assistance must not exceed the FEE‑HELP balance........................................................................................ 282

Division 9—How are amounts of VET FEE‑HELP assistance paid? 284

55.......................... Payments........................................................................ 284

56.......................... Effect of FEE‑HELP balance being re‑credited............... 284

Part 3—Administration                                                                                                  286

Division 10—Introduction                                                                                      286

57.......................... What this Part is about.................................................... 286

58.......................... The VET Guidelines....................................................... 286

Division 11—Payments by the Commonwealth                                          287

59.......................... What this Division is about............................................. 287

60.......................... Time and manner of payments........................................ 287

61.......................... Advances........................................................................ 287

62.......................... Rounding of amounts..................................................... 289

Division 12—Administrative requirements on VET providers          290

63.......................... What this Division is about............................................. 290

64.......................... Notices............................................................................ 290

65.......................... Correction of notices....................................................... 291

66.......................... Charging VET tuition fees.............................................. 292

67.......................... Determining census dates............................................... 292

68.......................... Communications with the Commonwealth concerning students etc.        293

Division 13—Electronic communications                                                      294

69.......................... What this Division is about............................................. 294

70.......................... Guidelines may deal with electronic communications..... 294

Division 14—Management of information                                                    296

71.......................... What this Division is about............................................. 296

72.......................... Meaning of VET personal information........................... 296

73.......................... Use of VET personal information................................... 296

74.......................... Meanings of VET officer etc. and official employment.... 297

75.......................... When information is disclosed in the course of official employment       297

76.......................... Commissioner may disclose information........................ 298

77.......................... Oath or affirmation to protect information...................... 299

78.......................... Unauthorised access to, or modification of, VET personal information   299

78A....................... Officer may use information........................................... 300

78B........................ This Division does not limit disclosure or use of information  300

Division 15—Tax file numbers                                                                            301

Subdivision 15‑A—Introduction                                                                         301

79.......................... What this Division is about............................................. 301

Subdivision 15‑B—What are the tax file number requirements for assistance under Part 2?   301

80.......................... Meeting the tax file number requirements....................... 301

81.......................... Who is an appropriate officer?........................................ 302

82.......................... Student to notify tax file number when issued................ 302

Subdivision 15‑C—In what circumstances can VET providers be notified of tax file number matters?                303

83.......................... When tax file numbers are issued etc.............................. 303

84.......................... When tax file numbers are altered................................... 303

85.......................... When tax file numbers are incorrectly notified—students with tax file numbers      303

86.......................... When tax file numbers are incorrectly notified—students without tax file numbers 304

87.......................... When applications are refused or tax file numbers are cancelled              304

Subdivision 15‑D—Other provisions relating to tax file numbers            305

88.......................... Giving information about tax file number requirements.. 305

89.......................... No entitlement to VET FEE‑HELP assistance for students without tax file numbers              306

Division 16—Review of decisions                                                                       307

Subdivision 16‑A—Introduction                                                                         307

90.......................... What this Division is about............................................. 307

Subdivision 16‑B—Which decisions are subject to review?                        307

91.......................... Reviewable VET decisions etc........................................ 307

92.......................... Deadlines for making reviewable VET decisions........... 308

93.......................... Decision maker must give reasons for reviewable VET decisions           308

Subdivision 16‑C—How are decisions reconsidered?                                   309

94.......................... Reviewer of decisions..................................................... 309

95.......................... Reviewer may reconsider reviewable VET decisions..... 309

96.......................... Reconsideration of reviewable VET decisions on request 310

Subdivision 16‑D—Which decisions are subject to AAT review?              311

97.......................... AAT review of reviewable VET decisions..................... 311

Part 4—Miscellaneous                                                                                                     312

98.......................... Delegations by Secretary................................................ 312

99.......................... VET Guidelines.............................................................. 312

Schedule 1—Dictionary                                                                                       313

1............................ Definitions...................................................................... 313

Endnotes                                                                                                                                  332

Endnote 1—About the endnotes                                                                          332

Endnote 2—Abbreviation key                                                                              334

Endnote 3—Legislation history                                                                           335

Endnote 4—Amendment history                                                                         350

Endnote 5—Uncommenced amendments [none]                                        376

Endnote 6—Modifications [none]                                                                       376

Endnote 7—Misdescribed amendments [none]                                           376

Endnote 8—Miscellaneous [none]                                                                      376


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

Chapter 1Introduction

  

Division 1Preliminary

1‑1  Short title

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

1‑5  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 1‑1 and 1‑5 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

19 December 2003

2.  Sections 1‑10 to 238‑15

The later of:

(a) 1 January 2004; and

(b) the day after the day on which this Act receives the Royal Assent.

1 January 2004

3.  Schedule 1

The later of:

(a) 1 January 2004; and

(b) the day after the day on which this Act receives the Royal Assent.

1 January 2004

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

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

1‑10  Identifying defined terms

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

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

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

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

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

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

 

Terms that are not identified

Item

This term:

is defined in:

1

enrol

Schedule 1

2

higher education provider

section 16‑1

3

student

Schedule 1

4

unit of study

Schedule 1

Division 2Objects

2‑1  Objects of this Act

                   The objects of this Act are:

                     (a)  to support a higher education system that:

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

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

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

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

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

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

                             (ii)  the creation and advancement of knowledge; and

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

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

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

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

Division 3Overview of this Act

3‑1  General

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

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

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

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

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

                     (a)  grants under the Commonwealth Grant Scheme;

                     (b)  other grants for particular purposes;

                     (c)  grants for Commonwealth scholarships.

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

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

3‑10  Assistance to students (Chapter 3)

                   Chapter 3 provides for the following assistance to students:

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

                     (b)  FEE‑HELP assistance for tuition fees;

                     (c)  OS‑HELP assistance for overseas study;

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

3‑15  Repayment of loans (Chapter 4)

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

3‑20  Administration (Chapter 5)

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

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

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

Division 5Application of Act to Table C providers

5‑1  Application of Act to Table C providers

General application to Table C providers

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

Modified application to Table C providers

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

 

Application of Act to Table C providers

Item

Provision

Application

1

Subdivision 19‑C (quality requirements)

Applies to the *Australian branch of the provider. However, *TEQSA may need to assess the overall performance of the provider as it relates to that branch.

2

Subdivision 19‑D (fairness requirements)

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

3

Subdivision 19‑F (contribution and fee requirements)

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

4

Part 3‑3 (FEE‑HELP assistance)

Applies to eligible students of the *Australian branch of the provider, but only for units of study in which the students are enrolled at the Australian branch.

5

Part 3‑4 (OS‑HELP assistance)

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

5A

Part 3‑5 (SA‑HELP assistance)

Applies to eligible students of the *Australian branch of the provider who are enrolled at the Australian branch in a *course of study or *bridging course for overseas‑trained professionals.

6

Chapter 4 (Repayment of loans)

Applies to the *Australian branch of the provider and to students undertaking, or students who undertook, units of study at that branch.

7

Part 5‑2 (Administrative requirements on higher education providers)

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

8

Part 5‑3 (Electronic communications)

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

9

Part 5‑4 (Management of information)

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

10

Part 5‑5 (Tax file numbers)

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

11

Part 5‑7 (Review of decisions)

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

Provisions that do not apply to Table C providers

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

                     (a)  a *Table C provider; or

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

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

             (4)  The provisions are:

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

                     (b)  Part 2‑3 (Other grants);

                     (c)  Part 2‑4 (Commonwealth scholarships);

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

                     (e)  Part 3‑2 (HECS‑HELP assistance);

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

Division 6Schedule 1A

6‑1  Schedule 1A

                   Schedule 1A has effect.

Chapter 2Grants for higher education assistance etc.

  

Division 8Introduction

8‑1  What this Chapter is about

This Chapter provides for who are higher education providers, and for 3 kinds of grants to be made.

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

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

The 3 kinds of grants available under this Chapter are:

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

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

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

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

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

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

Part 2‑1Higher education providers

Division 13Introduction

13‑1  What this Part is about

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

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

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

13‑5  The Higher Education Provider Guidelines

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

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

Division 16What is a higher education provider?

Subdivision 16‑AGeneral

16‑1  Meaning of higher education provider

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

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

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

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

             (2)  A body corporate:

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

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

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

             (3)  A higher education provider ceases to be a provider if the provider’s approval is revoked or suspended under Division 22 or the notice of the provider’s approval ceases to have effect under Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003.

Subdivision 16‑BWhich bodies are listed providers?

16‑10  Listed providers

                   The following are listed providers:

                     (a)  a *Table A provider;

                     (b)  a *Table B provider.

16‑15  Table A providers

             (1)  The following are Table A providers:

 

Table A providers

Providers

Central Queensland University

Charles Darwin University

Charles Sturt University

Curtin University of Technology

Deakin University

Edith Cowan University

Griffith University

James Cook University

La Trobe University

Macquarie University

Monash University

Murdoch University

Queensland University of Technology

Royal Melbourne Institute of Technology

Southern Cross University

Swinburne University of Technology

The Australian National University

The Flinders University of South Australia

The University of Adelaide

The University of Melbourne

The University of Queensland

The University of Sydney

The University of Western Australia

University of Ballarat

University of Canberra

University of Newcastle

University of New England

University of New South Wales

University of South Australia

University of Southern Queensland

University of Tasmania

University of Technology, Sydney

University of the Sunshine Coast

University of Western Sydney

University of Wollongong

Victoria University

Australian Catholic University

Batchelor Institute of Indigenous Tertiary Education

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

16‑20  Table B providers

             (1)  The following are Table B providers:

 

Table B providers

Providers

Bond University

The University of Notre Dame Australia

MCD University of Divinity

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

16‑22  Table C providers

             (1)  The following are Table C providers:

 

Table C providers

Providers

Carnegie Mellon University, a non‑profit organisation established under Pennsylvania law

University College London, a non‑profit organisation established under United Kingdom law

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

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

Subdivision 16‑CHow are bodies approved as higher education providers?

16‑25  Approval by the Minister

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

                     (a)  the body:

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

                             (ii)  carries on business in Australia; and

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

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

                              (i)  to provide education;

                             (ii)  to conduct research; and

                     (b)  the body is:

                              (i)  an *Australian university; or

                             (ii)  a *self‑accrediting entity; or

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

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

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

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

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

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

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

                     (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.

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

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

16‑27  Body must be a registered higher education provider

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

16‑30  The tuition assurance requirements

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

16‑31  Tuition assurance requirements exemption for approvals

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

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

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

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

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

16‑40  Application

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

             (2)  The application:

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

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

16‑45  Minister may seek further information

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

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

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

16‑50  Minister to decide application

             (1)  The Minister must:

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

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

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

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

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

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

whichever is the later.

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

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

16‑55  Approvals are legislative instruments

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

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

Note:          Section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.

16‑60  Conditions of approval

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

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

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

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

                     (a)  the decision; and

                     (b)  the reasons for the decision; and

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

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

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

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

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

             (4)  The variation takes effect when the notice of variation takes effect under the Legislative Instruments Act 2003.

Note:          Section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.

Division 19What are the quality and accountability requirements?

Subdivision 19‑AGeneral

19‑1  The quality and accountability requirements

                   The quality and accountability requirements are:

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

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

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

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

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

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

Subdivision 19‑BThe financial viability requirements

19‑5  Basic requirement

                   A higher education provider:

                     (a)  must be financially viable; and

                     (b)  must be likely to remain financially viable.

19‑10  Financial information must be provided

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

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

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

             (2)  The statement:

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

                     (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.

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

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

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

19‑12  Minister to have regard to financial information

                   In determining whether a higher education provider is financially viable, and likely to remain so, the Minister must have regard to any financial statement provided by the provider under section 19‑10.

Subdivision 19‑CThe quality requirements

19‑15  Provider must maintain quality

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

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

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

Subdivision 19‑DThe fairness requirements

19‑30  Basic requirement

                   A higher education provider must treat fairly:

                     (a)  all of its students; and

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

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

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

             (2)  A higher education provider that receives:

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

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

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

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

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

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

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

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

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

             (1)  A higher education provider must not:

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

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

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

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

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

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

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

                     (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 238‑10.

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

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

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

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

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

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

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

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

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

                     (a)  a political party; or

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

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

                             (ii)  a local government body.

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

                     (a)  a political party; or

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

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

                             (ii)  a local government body.

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

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

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

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

                     (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 *SA‑HELP assistance in the same way as they apply to an amount paid to the provider as a *student services and amenities fee.

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

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

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

19‑40  Compliance with the tuition assurance requirements

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

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

             (3)  An exemption:

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

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

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

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

19‑45  Student grievance and review procedures

Must have grievance and review procedures

             (1)  A higher education provider must have:

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

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

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

                              (i)  under section 36‑20; or

                             (ii)  relating to assistance under Chapter 3.

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

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

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

Guidelines may provide for matters relating to reviews

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

                     (a)  under section 36‑20; or

                     (b)  relating to assistance under Chapter 3;

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

Provider to comply with procedures

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

Provider to provide information about procedures

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

Provider to provide information about other complaint mechanisms

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

19‑50  Higher education providers to appoint review officers

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

                     (a)  under section 36‑20; or

                     (b)  relating to assistance under Chapter 3.

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

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

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

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

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

                     (c)  under section 36‑20; or

                     (d)  relating to assistance under Chapter 3.

19‑55  Review officers not to review own decisions

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

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

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

19‑60  Procedures relating to personal information

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

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

             (3)  The provider must comply with:

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

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

Subdivision 19‑EThe compliance requirements

19‑65  Basic requirements

             (1)  A higher education provider must comply with:

                     (a)  this Act and the regulations; and

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

                     (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.

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

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

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

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

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

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

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

19‑70  Provider to provide statement of general information

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

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

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

             (2)  The information must be provided:

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

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

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

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

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

                     (a)  the provider; or

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

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

19‑77  Notice of events affecting accreditation

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

                     (a)  the provider; or

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

that relates to:

                     (c)  the provider’s authority conferred by or under the *TEQSA Act to self‑accredit 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.

19‑78  Notice of events significantly affecting TEQSA registration

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

                     (a)  the provider; or

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

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

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

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

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

                     (a)  the *financial viability requirements;

                     (b)  the *fairness requirements;

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

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

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

19‑82  Compliance notices

Grounds for giving a compliance notice

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

                     (a)  this Act or the regulations;

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

                     (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 non‑compliance or possible non‑compliance; and

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

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

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

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

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

Matters that Minister must consider in giving compliance notice

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

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

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

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

                              (i)  this Act and the regulations; and

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

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

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

                              (i)  the provider’s students; and

                             (ii)  the provision of higher education generally;

                     (e)  the public interest;

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

Higher Education provider to comply with compliance notice

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

Note:          A failure to comply with a compliance 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 (see sections 22‑15 and 22‑30).

Variation and revocation of compliance notice

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

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

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

Compliance notice not required before suspending or revoking approval

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

Subdivision 19‑FWhat are the contribution and fee requirements?

19‑85  Basic requirement

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

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

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

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

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

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

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

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

                     (a)  does so:

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

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

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

19‑90  Determining tuition fees for all students

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

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

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

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

                     (a)  does so:

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

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

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

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

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

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

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

             (2)  The provider must:

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

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

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

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

                              (i)  the person’s *tuition fee; and

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

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

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

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 19‑87(3) when varying a student contribution amount.

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

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

19‑100  Limits on fees for courses of study

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

19‑102  Meaning of fee

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

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

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

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

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

                     (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 104‑50.

19‑105  Meaning of tuition fee

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

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

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

Subdivision 19‑GThe compact and academic freedom requirements

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

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

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

             (3)  The mission based compact must include:

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

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

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

                              (i)  undertaking research; and

                             (ii)  research training; and

                            (iii)  innovation.

Note:          A mission based compact may include other matters.

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

19‑115  Provider to have policy upholding free intellectual inquiry

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

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

Subdivision 22‑AGeneral

22‑1  Cessation of approval as a provider

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

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

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

                     (c)  if the notice of the provider’s approval ceases to have effect under Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003.

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

Subdivision 22‑AARevocation of approval if registration ceases or winding up order made

22‑2  Automatic revocation of approval if registration ceases

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

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

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

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

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

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

             (3)  A notice of revocation under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments 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 Legislative Instruments.

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

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

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

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

             (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 Legislative Instruments.

             (3)  A notice of revocation under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments 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 Legislative Instruments.

Subdivision 22‑B—Revocation for cause

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

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

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

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

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

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

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

                              (i)  to provide education;

                             (ii)  to conduct research; and

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

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

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

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

22‑10  Revocation of approval if status or accreditation changes

Bodies that cease to be Australian universities

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

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

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

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

Bodies that cease to be self‑accrediting entities

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

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

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

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

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

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

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

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

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

Bodies that cease to be non self‑accrediting entities

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

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

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

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

Bodies offering courses that cease to be accredited courses

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

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

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

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

Bodies that no longer meet certain approval criteria

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

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

                              (i)  paragraph 16‑25(1)(a); or

                             (ii)  paragraph 16‑25(1)(da); and

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

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

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

                     (a)  is satisfied that the body has:

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

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

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

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

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

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

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

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

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

                     (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.

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

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

                     (a)  is satisfied that:

                              (i)  the body; or

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

                            is not a fit and proper person; and

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

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

Subdivision 22‑CProcess for decisions on revocation under Subdivision 22‑B

22‑20  Process for revoking approval

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

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

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

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

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

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

                     (a)  must be in writing; and

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

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

          (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 Legislative Instruments.

             (6)  If the notice of revocation under subsection (3) ceases to have effect under Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003, then the decision to revoke the approval ceases to have effect at the same time.

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

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

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

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

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

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

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

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

22‑30  Suspension of approval as a provider

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

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

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

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

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

                     (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 22‑20 within a reasonable period of time after giving a copy of the determination to the body.

             (4)  A determination under this section:

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

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

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

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

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

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

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

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

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

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

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

Subdivision 22‑DRevocation of approval on application

22‑40  Revocation of approval as a provider on application

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

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

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

                     (a)  be in writing; and

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

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

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

Subdivision 22‑ENotice of approval or revocation ceasing to have effect under the Legislative Instruments Act 2003

22‑45  Notice of approval ceasing to have effect under the Legislative Instruments 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 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003.

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

                     (a)  affect:

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

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

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

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

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

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

22‑50  Notice of revocation ceasing to have effect under the Legislative Instruments 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 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments 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 2‑2Commonwealth Grant Scheme

Division 27Introduction

27‑1  What this Part is about

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

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

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

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

27‑5  Guidelines

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

             (2)  The provisions of this Part indicate:

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

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

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

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

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

Subdivision 30‑ABasic rules

30‑1  Eligibility for grants

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

                     (a)  the provider:

                              (i)  is a *Table A provider; and

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

                     (b)  all of the following apply:

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

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

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

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

Subdivision 30‑BAllocation of places

30‑10  Allocation of places

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

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

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

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

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

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

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

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

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

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

30‑12  Designated courses of study

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

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

                     (b)  *courses of study in medicine;

                     (c)  courses of study specified by the Minister under subsection (2).

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

30‑15  Funding clusters

                   The funding clusters are:

 

Funding clusters

Law, Accounting, Administration, Economics, Commerce

Humanities

Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health

Education

Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts

Nursing

Engineering, Science, Surveying

Dentistry, Medicine, Veterinary Science, Agriculture

30‑20  National priorities

                   A national priority is a particular outcome:

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

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

Note:          The following are examples of national priorities:

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

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

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

Subdivision 30‑CFunding agreements

30‑25  Funding agreements

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

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

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

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

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

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

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

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

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

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

                              (i)  places in *undergraduate courses of study;

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

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

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

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

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

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

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

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

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

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

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

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

30‑27  Funding agreement may specify maximum basic grant amounts

             (1)  A funding agreement may:

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

                              (i)  *designated courses of study; and

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

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

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

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

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

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

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

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

Non‑Table A providers—maximum basic grant amounts

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

30‑28  Funding agreement to be published

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

Division 33How are grant amounts worked out?

Subdivision 33‑ABasic rule

33‑1  How grant amount is worked out

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

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

                     (b)  adding:

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

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

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

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

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

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

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

Subdivision 33‑BBasic grant amounts

33‑5  Basic grant amounts

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

Basic grant amounts for Table A providers

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

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

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

Table A providers—amount for designated courses of study

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

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

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

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

                     (b)  either:

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

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

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

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

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

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

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

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

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

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

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

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

Basic grant amounts for non‑Table A providers

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

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

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

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

                     (b)  either:

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

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

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

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

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

33‑10  Commonwealth contribution amounts

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

 

Commonwealth contribution amount

Item

Funding cluster

Commonwealth contribution amount

1

Law, Accounting, Administration, Economics, Commerce

$1,765

2

Humanities

$4,901

3

Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health

$8,670

4

Education

$9,020

5

Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts

$10,662

6

Nursing

$11,903

7

Engineering, Science, Surveying

$15,156

8

Dentistry, Medicine, Veterinary Science, Agriculture

$19,235

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

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

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

Method statement

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

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

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

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

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

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

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

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

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

 

Item

Column 1

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

Column 2

apply the method statement in subsection (1) to ...

1

a *funding cluster

units provided by the provider in the funding cluster.

2

*designated courses of study in a funding cluster

units provided by the provider in the funding cluster in designated courses of study.

3

*non‑designated courses of study in a funding cluster

units provided by the provider in the funding cluster in non‑designated courses of study.

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

                   The Commonwealth Grant Scheme Guidelines may specify:

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

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

Subdivision 33‑CAdjustments

33‑37  Adjustments for breach of section 19‑37

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

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

                  

where:

reduction amount is $100.

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

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

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

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

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

                     (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 19‑37; and

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

the Minister must give to the provider a written notice:

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

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

The notice may relate to more than one breach.

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

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

Subdivision 33‑DSpecial purpose advances

33‑40  Advances for certain purposes

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

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

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

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

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

                     (a)  the year next following that year; or

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

                     (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 36‑AGeneral

36‑1  Condition of grant to comply with this Division

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

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

Subdivision 36‑BConditions relating to Commonwealth supported students

36‑5  Meaning of Commonwealth supported student

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

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

                              (i)  in relation to the unit; or

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

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

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

             (4)  A notice under subsection (3):

                     (a)  must be in writing; and

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

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

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

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

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

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

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

                     (e)  the person:

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

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

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

                     (a)  an Australian citizen; or

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

                     (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 non‑Table A providers

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

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

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

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

Additional requirement relating to work experience in industry

             (6)  A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study that wholly consists of *work experience in industry unless:

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

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

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

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

Units of study at full fee summer or winter schools

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

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

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

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

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

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

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

           (10)  In this section:

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

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

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

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

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

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

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

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

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

                     (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.

36‑20  Providers to repay amounts—special circumstances

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

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

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

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

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

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

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

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

                      (f)  either:

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

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

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

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

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

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

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

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

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

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

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

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

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

                     (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.

36‑21  Special circumstances

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

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

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

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

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

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

36‑22  Application period

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

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

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

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

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

36‑23  Dealing with applications

             (1)  If:

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

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

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

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

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

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

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

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

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

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

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

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

             (2)  The provider must:

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

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

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

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

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

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

             (2)  The provider must:

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

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

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

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

Subdivision 36‑CConditions relating to enrolment

36‑25  Continued support for Commonwealth supported students

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

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

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

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

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

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

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

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

36‑30  Providers to enrol persons as Commonwealth supported students

Table A providers

             (1)  If:

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

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

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

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

             (2)  Subsection (1) does not apply in respect of a person’s enrolment with a *Table A provider in a unit of study that forms part of an *undergraduate course of study if:

                     (a)  the person commences the undergraduate course of study with the provider before 1 January 2009; or

                     (b)  both:

                              (i)  the person transfers to the undergraduate course of study with the provider on or after 1 January 2009 from another undergraduate course of study in which the person was enrolled with the provider before 1 January 2009; and

                             (ii)  the person had not completed that other undergraduate course of study; or

                     (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 30‑10 in respect of that national priority for the year in which the person is enrolled in the unit.

             (4)  Subsection (3) does not apply, and is taken never to have applied, in relation to that enrolment if:

                     (a)  in respect of the year in which the person is enrolled in the unit, the provider has already filled, or fills, all of the *number of Commonwealth supported places in respect of that *national priority; or

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

Notices under paragraph (4)(b)

             (5)  A notice under paragraph (4)(b):

                     (a)  must be in writing; and

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

36‑40  Providers to cancel enrolments in certain circumstances

             (1)  A higher education provider must cancel a person’s enrolment in a unit of study with the provider if the person:

                     (a)  is enrolled as a *Commonwealth supported student in relation to the unit; and

                     (b)  has not, on or before the *census date for the unit:

                              (i)  completed, and signed, a *request for Commonwealth assistance in relation to the unit or, where the unit forms part of a *course of study undertaken with the provider, in relation to the course of study; and

                             (ii)  given it to an *appropriate officer of the provider.

             (2)  A higher education provider must cancel a person’s enrolment in a unit of study with the provider if the person:

                     (a)  is enrolled as a *Commonwealth supported student in relation to the unit; and

                     (b)  is not entitled to *HECS‑HELP assistance for the unit; and

                     (c)  has not, on or before the *census date for the unit, paid to the provider the whole of the person’s *student contribution amount for the unit.

However, this subsection does not apply if the person’s student contribution amount for the unit is a nil amount.

             (3)  A request for Commonwealth assistance, in relation to a person enrolling in a unit of study with a higher education provider (where access to the unit was not provided by *Open Universities Australia), means a document:

                     (a)  in which the person requests the Commonwealth to provide assistance under this Act in relation to the unit or, where the unit forms part of a *course of study undertaken with the provider, in relation to the course of study; and

                     (b)  that is in the form approved by the Minister.

Subdivision 36‑DConditions relating to student contribution amounts

36‑45  Limits on student contribution amounts

                   If a person is enrolled with a higher education provider in a unit of study as a *Commonwealth supported student, the provider must not charge, as the person’s *student contribution amount for the unit, an amount that exceeds the amount worked out as follows:

                  

36‑50  Provider must not accept up‑front 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 *HECS‑HELP assistance for the unit;

*up‑front payments for the unit totalling more than 90% of the person’s *student contribution amount for the unit.

Note:          For entitlement to HECS‑HELP assistance: see Division 90.

Subdivision 36‑EConditions relating to tuition fees

36‑55  Tuition fees for non‑Commonwealth supported students

Tuition fees for units of study

             (1)  A higher education provider must not determine, as a person’s *tuition fee for a unit of study, an amount that is less than:

                     (a)  if paragraph (b) does not apply—the highest *student contribution amount that the provider would charge any person who is a *Commonwealth supported student in relation to the unit; or

                     (b)  such other higher amount as is specified in the Tuition Fee Guidelines.

             (2)  Subsection (1) does not apply if the person is enrolled in an *employer reserved place. However, the provider must not charge, as the person’s *tuition fees for the unit, amounts that are such that the sum of:

                     (a)  the tuition fees; and

                     (b)  the *employer contribution amount for the unit;

is less than:

                     (c)  if paragraph (d) does not apply—the *student contribution amount referred to in paragraph (1)(a); or

                     (d)  such amount as is specified in the Tuition Fee Guidelines for the purposes of paragraph (1)(b).

             (3)  If a person:

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

                     (b)  could have enrolled in that study as a unit of study if the enrolment were not on a non‑award basis;

the provider must not charge, as the person’s *fees for the study, amounts that in total are less than the highest amount that the provider would charge any person:

                     (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 36‑FOther conditions

36‑60  Providers to meet the quality and accountability requirements

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

36‑65  Providers to comply with funding agreement

                   A higher education provider must comply with any funding agreement the provider enters into under section 30‑25.

36‑70  Providers to comply with the Commonwealth Grant Scheme Guidelines

             (1)  The Commonwealth Grant Scheme Guidelines may specify conditions that higher education providers must comply with for the purposes of this Division.

             (2)  A higher education provider must comply with all such conditions in respect of any year for which the provider receives a grant under this Part.

             (3)  However, the provider need not comply with such a condition during a particular year if the condition comes into force on or after the day on which the provider entered into a funding agreement under section 30‑25 in respect of a period that includes that year.

Part 2‑3Other grants

Division 41Other grants

41‑1  What this Part is about

Grants under this Part are payable to higher education providers and other eligible bodies for a variety of purposes.

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

41‑5  The Other Grants Guidelines

                   Other grants are also dealt with in the Other Grants Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note:          The Other Grants Guidelines are made by the Minister under section 238‑10.

41‑10  Eligibility for grants under this Part

             (1)  Subject to subsection (2), a body corporate referred to in an item in the third column of the table is eligible for grants under this Part, in respect of the year 2005 or a later year, for the purposes specified in the second column of that item.

 

Eligibility for grants under this Part

Item

Purpose of grant

Who is eligible

1

Grants to promote equality of opportunity in higher education

*Table A providers

2

Grants to promote the productivity of higher education providers

*Table A providers

4

Grants to support national institutes specified in the Other Grants Guidelines for the purposes of this item

*Table A providers

5

Grants to support the capital development projects of higher education providers

*Table A providers and *Table B providers

6

Grants to assist with the cost of higher education providers’ superannuation liabilities

*Table A providers

7

Grants to support research by, and the research capability of, higher education providers

*Table A providers and *Table B providers

8

Grants to support the training of research students

*Table A providers and *Table B providers

9

Grants to foster collaboration and reform in higher education

*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item

9A

Grants to support diversity and structural reform

*Table A providers, *Table B providers that are universities, and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item

9B

Grants to support structural adjustment

*Table A providers and *Table B providers that are universities

10

Grants to support the development of systemic infrastructure used by higher education providers

*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item

11

Grants for activities that:

(a) assure and enhance the quality of Australia’s higher education sector; or

(b) foster an understanding of the importance of, or promote research and scholarship in, science, social science or the humanities in Australia; or

(c) support open access to higher education across Australia.

*Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item

12

Grants to assist higher education providers with the transitional costs of changes to maximum student contribution amounts

Higher education providers that have provided Commonwealth‑supported places for any year

             (2)  If the Other Grants Guidelines:

                     (a)  specify a program under which grants for a particular purpose specified in the table are to be paid; and

                     (b)  specify extra conditions of eligibility to receive a grant under the program;

then a body corporate specified in the table in respect of those grants is not eligible for such a grant unless it complies with those extra conditions.

41‑15  Grants may be paid under programs

             (1)  The Other Grants Guidelines may specify one or more programs under which grants for particular purposes specified in the table in subsection 41‑10(1) are to be paid.

             (2)  If the Other Grants Guidelines specify a program for a grant for a particular purpose, the guidelines may also specify all or any of the following matters for the program:

                     (a)  the program’s objectives;

                     (b)  the extra conditions of eligibility to receive a grant under the program;

                     (c)  the amount, being a part of the amount referred to in section 41‑45 for a year, that will be spent on the program in that particular year;

                     (d)  the indexation of that amount for subsequent years, using the method of indexation set out in Part 5‑6;

                     (e)  the method by which the amount of grants under the program will be determined;

                      (f)  whether grants under a program are in respect of a year or a project;

                     (g)  the conditions that apply to grants under the program.

41‑20  Approval of grants

                   The Minister may approve a grant under this Part in respect of a year or a project to a body corporate that is eligible for such a grant.

41‑25  Conditions on grants

                   A grant is made on the following conditions:

                     (a)  if the grant is made under a program and the Other Grants Guidelines specified conditions that apply to a grant under that program:

                              (i)  on the conditions provided for in the guidelines; and

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

                     (b)  if paragraph (a) does not apply:

                              (i)  on such conditions (if any) as the Minister determines in writing; and

                             (ii)  if the body receiving the grant is a higher education provider—also on the condition that the body must meet the quality and accountability requirements.

41‑30  Amount of a grant

                   The amount of a grant is:

                     (a)  if the grant is made under a program and the Other Grants Guidelines specify a method by which the amount of grants under the program are to be determined—the amount determined by that method; or

                     (b)  if paragraph (a) does not apply—the amount determined in writing by the Minister.

41‑35  Amounts payable under this Part

                   If:

                     (a)  a body corporate meets, in respect of a year, the requirements of the Other Grants Guidelines made for the purposes of section 41‑15 in relation to a program; or

                     (b)  the Minister approves, under section 41‑20, a grant to a body corporate in respect of a year or project;

there is payable to the body corporate concerned, in respect of that year or project, an amount equal to the amount referred to in section 41‑30 in respect of that grant.

41‑40  Rollover of grant amounts

             (1)  If:

                     (a)  a body to which a grant under this Part has been made in respect of a year fails to spend an amount of that grant; and

                     (b)  the *Secretary determines in writing that this section is to apply to the body in respect of that grant;

then so much of the unspent amount as the Secretary specifies is taken to be granted to the body under this Part in respect of the next following year.

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

             (3)  The grant is taken to be made:

                     (a)  under the same conditions as the conditions of the original grant—except the grant is taken to be made in respect of the next following year; or

                     (b)  under such other conditions as are determined by the *Secretary.

41‑45  Maximum payments for other grants under this Part

             (1)  The total payments made under this Part in respect of a year referred to in the table must not exceed the amount specified next to that year in the table.

 

Maximum payments for other grants under this Part

Item

Year

Amount

1

2005

$1,539,636,000

2

2006

$1,716,942,000

3

2007

$1,768,622,000

4

2008

$1,912,350,000

5

2009

$1,883,928,000

6

2010

$1,874,910,000

7

2011

$2,032,393,000

8

2012

$2,114,960,000

9

2013

(a) if paragraph (b) does not apply—$2,274,359,000; or

(b) if the Minister determines an amount under subsection (1A) in respect of 2013—that amount

10

2014

(a) if paragraph (b) does not apply—$2,225,794,000; or

(b) if the Minister determines an amount under subsection (1A) in respect of 2014—that amount

11

2015

(a) if paragraph (b) does not apply—$2,231,354,000; or

(b) if the Minister determines an amount under subsection (1A) in respect of 2015—that amount

12

2016

(a) if paragraph (b) does not apply—$2,219,169,000; or

(b) if the Minister determines an amount under subsection (1A) in respect of 2016—that amount

13

2017 and each later year

The amount determined by the Minister under subsection (1B) in respect of that year

          (1A)  The Minister may, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2013 but before 1 January 2017.

          (1B)  The Minister must, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2017.

          (1C)  A determination under subsection (1B) for a year must be made before the start of that year.

          (1D)  The Minister may, in writing, vary a determination under subsection (1A) or (1B) for a year at any time before the end of that year.

             (2)  Payments made in respect of a project in a year are taken, for the purposes of subsection (1) to have been made in respect of that year.

41‑50  List of maximum grant amounts

             (1)  Before the start of a year, the Minister must, by legislative instrument, cause a list to be prepared setting out the maximum amounts of all grants which may be paid in the following year for each purpose of grant specified in the table in section 41‑10.

             (2)  The Minister may, in writing, vary a list for a year at any time before the end of that year.

Part 2‑4Commonwealth scholarships

Division 46Commonwealth scholarships

46‑1  What this Part is about

Grants for scholarships are made to higher education providers who pay the scholarships to students for the purposes of the students’ education.

Certain scholarships may be paid directly to students.

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

46‑5  The Commonwealth Scholarships Guidelines

                   *Commonwealth scholarships are also dealt with in the Commonwealth Scholarships Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note:          The Commonwealth Scholarships Guidelines are made by the Minister under section 238‑10.

46‑10  Classes of Commonwealth scholarships

                   There are 3 classes of *Commonwealth scholarships:

                     (a)  directly‑paid standard scholarships; and

                    (aa)  indirectly‑paid standard scholarships; and

                     (b)  postgraduate research scholarships.

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

46‑13  Eligibility of students to receive directly‑paid standard Commonwealth scholarships

                   If:

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

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

                     (c)  a student of:

                              (i)  a *Table A provider; or

                             (ii)  a higher education provider to which subparagraph 30‑1(1)(b)(i) applies;

                            satisfies those eligibility requirements; and

                     (d)  the student is selected by the provider to receive that kind of scholarship; and

                     (e)  the selection is in accordance with a selection policy maintained by that provider; and

                      (f)  the selection policy complies with the requirements set out in the Commonwealth Scholarships Guidelines;

the student is entitled to receive from the Commonwealth that kind of directly‑paid standard Commonwealth scholarship.

46‑15  Eligibility of higher education providers to receive grants for certain Commonwealth scholarships

             (1)  *Table A providers, and higher education providers to which subparagraph 30‑1(1)(b)(i) applies, are eligible to receive a grant from the Commonwealth to pay, as a benefit to students, indirectly‑paid standard *Commonwealth scholarships to their students.

             (2)  *Table A providers and *Table B providers are eligible to receive a grant from the Commonwealth to pay, as a benefit to students, postgraduate research *Commonwealth scholarships to their students.

             (3)  A provider that is eligible to receive a grant under subsection (1) or (2) is an eligible scholarship provider.

46‑20  Other matters relating to Commonwealth scholarships

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

Directly‑paid standard Commonwealth scholarships

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

                     (a)  the kinds of scholarships that are to be directly‑paid standard Commonwealth scholarships;

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

                     (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 5‑6;

                     (e)  how scholarships are to be paid;

                      (f)  the conditions that apply to a particular kind of scholarship;

                     (g)  the amount, being part of the amount referred to in section 46‑40 for a year, that will be spent on each kind of scholarship in that year;

                     (h)  the indexation of such an amount for subsequent years, using the method of indexation set out in Part 5‑6;

                      (i)  the maximum number of students that a particular higher education provider can select to receive a particular kind of scholarship for a particular year;

                      (j)  requirements to be complied with by selection policies maintained by higher education providers;

                     (k)  information that higher education providers are to give the Minister.

Other Commonwealth scholarships

             (2)  Without limiting subsection (1), the Commonwealth Scholarships Guidelines may provide for the following matters in relation to indirectly‑paid standard *Commonwealth scholarships and postgraduate research Commonwealth scholarships:

                     (a)  the kinds of scholarships that are to be indirectly‑paid standard Commonwealth scholarships;

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

                     (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 46‑40 for a year, that will be spent on each kind of scholarship in that year;

                     (h)  the indexation of such an amount for subsequent years, using the method of indexation set out in Part 5‑6;

                      (i)  how grants to providers are to be made;

                      (j)  how providers are to determine the amount of each scholarship;

                     (k)  the indexation of amounts of scholarships, using the method of indexation set out in Part 5‑6;

                      (l)  how providers are to pay scholarships;

                    (m)  information that providers are to give the Minister, the *Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997);

                     (n)  information that providers are to give to:

                              (i)  the Repatriation Commission; or

                             (ii)  the Military Rehabilitation and Compensation Commission; or

                            (iii)  the Secretary, or an employee, of the Department administered by the Minister who administers the Veterans’ Entitlements Act 1986; or

                            (iv)  the Secretary, or an employee, of the Department administered by the Minister who administers the Military Rehabilitation and Compensation Act 2004.

46‑25  Condition of grants

                   It is a condition of a grant to a higher education provider under this Part that the higher education provider to whom the grant is payable must meet the *quality and accountability requirements.

46‑30  Amounts payable under this Part

                   The amount that is payable under this Part to an *eligible scholarship provider is the amount worked out in accordance with the Commonwealth Scholarships Guidelines.

46‑35  Rollover of grant amounts

             (1)  If:

                     (a)  a higher education provider to which a grant under this Part has been made fails to spend an amount of that grant; and

                     (b)  the *Secretary determines in writing that this section is to apply to the provider in respect of that grant;

then so much of the unspent amount as the Secretary specifies is taken to be granted to the provider under this Part in respect of the next following year.

             (2)  The amount is taken to be granted:

                     (a)  under the same conditions as the conditions of the original grant—except the grant is taken to be made in respect of the next following year; or

                     (b)  under such other conditions as are determined by the *Secretary.

46‑40  Maximum payments for Commonwealth scholarships

             (1)  The total payments made under this Part in respect of a year referred to in the table must not exceed the amount specified next to that year in the table.

 

Maximum payments for Commonwealth Scholarships

Item

Year

Amount

1

2004

$124,212,000

2

2005

$151,452,000

3

2006

$179,733,000

4

2007

$209,569,000

5

2008

$239,305,000

6

2009

$290,104,000

7

2010

$304,553,000

8

2011

$316,212,000

9

2012

$319,056,000

10

2013

(a) if paragraph (b) does not apply—$300,217,000; or

(b) if the Minister determines an amount under subsection (2) in respect of 2013—that amount

11

2014

(a) if paragraph (b) does not apply—$305,166,000; or

(b) if the Minister determines an amount under subsection (2) in respect of 2014—that amount

12

2015

(a) if paragraph (b) does not apply—$307,456,000; or

(b) if the Minister determines an amount under subsection (2) in respect of 2015—that amount

13

2016

(a) if paragraph (b) does not apply—$307,329,000; or

(b) if the Minister determines an amount under subsection (2) in respect of 2016—that amount

14

2017 and each later year

The amount determined by the Minister under subsection (3) in respect of that year

             (2)  The Minister may, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2013 but before 1 January 2017.

             (3)  The Minister must, by legislative instrument, determine the total payments made under this Part in respect of a year starting on or after 1 January 2017.

             (4)  A determination under subsection (3) for a year must be made before the start of that year.

             (5)  The Minister may, in writing, vary a determination under subsection (2) or (3) for a year at any time before the end of that year.

Part 2‑5Reduction and repayment of grants

Division 51Introduction

51‑1  What this Part is about

Bodies may have their grants reduced, or be required to repay a grant, for breaches of conditions of grants under Part 2‑2, 2‑3 or 2‑4.

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

51‑5  The Reduction and Repayment Guidelines

                   Reduction and repayment of grants is also dealt with in the Reduction and Repayment Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note:          The Reduction and Repayment Guidelines are made by the Minister under section 238‑10.

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

54‑1  Decision as to reduction or repayment of a grant

             (1)  The Minister may determine:

                     (a)  that an amount of a grant made, or to be made, to a body under Part 2‑2, 2‑3 or 2‑4 is to be reduced; or

                     (b)  that an amount of a grant made to a body under Part 2‑2, 2‑3 or 2‑4 is to be repaid to the Commonwealth.

             (2)  The Minister may make a determination under subsection (1) if:

                     (a)  the body breaches a condition of a grant made to the body under Part 2‑2, 2‑3 or 2‑4, whether or not that grant is the grant to be reduced or repaid; and

                     (b)  the Minister is satisfied that it is appropriate to take that action (see section 54‑5); and

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

54‑5  Appropriateness of requiring reduction or repayment of grant

                   Without limiting the matters that the Minister may consider in deciding whether it is appropriate under subsection 54‑1(1) to take particular action, the Minister may consider any or all of the following matters:

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

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

                   (ba)  if the breach is a breach of a condition imposed under section 19‑37—the amount of any adjustment under section 33‑37 in relation to that breach, or any other breach by the body, during the same year;

                     (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;

                      (f)  any other matter set out in the Reduction and Repayment Guidelines.

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

57‑1  Reduction in amount of grants

             (1)  If an amount of a grant is to be reduced under this Part, it must be reduced by an amount determined by the Minister in writing.

             (2)  The Reduction and Repayment Guidelines may set out requirements about how such an amount is to be determined. The Minister must make his or her determination in accordance with any such requirements.

57‑5  Amount of the repayment

             (1)  If an amount of a grant is to be repaid under this Part, the amount to be repaid is the amount that the Minister determines in writing.

             (2)  The amount to be repaid must not exceed the amount of the grant.

             (3)  The Reduction and Repayment Guidelines may set out requirements about how such an amount is to be determined. The Minister must make his or her determination in accordance with any such requirements.

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

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

60‑1  Procedure prior to decision

             (1)  Before making a decision under paragraph 54‑1(a) or (b) in respect of a body, the Minister must give to the body notice in writing:

                     (a)  stating that the Minister is considering reducing the body’s grant, or requiring the repayment of a grant made to the body, as the case may be; and

                     (b)  stating the amount of the proposed reduction or repayment and the reasons why the Minister is considering taking that action; and

                     (c)  inviting the body to make written submissions to the Minister within 28 days on either or both of the following matters:

                              (i)  why that action should not be taken;

                             (ii)  why the amount of the proposed reduction or repayment should be reduced; and

                     (d)  informing the body that, if no submission is received under paragraph (c) within the time required, the action will take effect on the day after the last day for making submissions.

             (2)  In deciding whether to take the action, the Minister must consider any submissions received from the body within the 28 day period.

60‑5  Notification of decision

             (1)  The Minister must notify the body in writing of his or her decision on whether or not to take the action. The notice:

                     (a)  must be in writing; and

                     (b)  if a submission was received from the body within the 28 day period—must specify the day that the decision is to take effect; and

                     (c)  must be given within the period of 28 days following the period in which submissions may have been given to the Minister under subsection 60‑1(1).

             (2)  If no notice is given within the period provided for in paragraph (1)(c), the Minister is taken to have decided not to take the action.

60‑10  When a decision takes effect

                   If the Minister’s decision is to take the action, the decision takes effect:

                     (a)  if no submission was made under subsection 60‑1(1)—on the day after the last day for making submissions; or

                     (b)  if such a submission was made—on the day specified in the notice under subsection 60‑5(1).

Chapter 3Assistance to students

  

Division 65Introduction

65‑1  What this Chapter is about

This Chapter provides for 4 kinds of assistance that the Commonwealth provides to students.

                   Note:             The Commonwealth meets all or part of the higher education costs of students who are enrolled in places funded under Part 2‑2.

The 4 kinds of assistance available under this Chapter are:

•      HECS‑HELP assistance—assistance to meet a student’s liability to pay student contribution amounts for units of study that are Commonwealth supported (see Part 3‑2);

•      FEE‑HELP assistance—assistance to meet a student’s liability to pay tuition fees for units of study that are not Commonwealth supported (see Part 3‑3);

•      OS‑HELP assistance—assistance to a student who, as part of his or her course of study, is to undertake study overseas (see Part 3‑4);

•      SA‑HELP assistance—assistance to a student on whom a student services and amenities fee is imposed (see Part 3‑5).

The Commonwealth pays the assistance to the relevant higher education provider either (in the case of HECS‑HELP assistance, FEE‑HELP assistance and SA‑HELP assistance) to discharge the student’s liability, or (in the case of OS‑HELP assistance) to pay to students on the Commonwealth’s behalf.

The assistance is (in most cases) in the form of a loan from the Commonwealth to the student.

Note:          Chapter 4 deals with the repayment of loans made under this Chapter.

Part 3‑2HECS‑HELP assistance

Division 87Introduction

87‑1  What this Part is about

A student may be entitled to HECS‑HELP assistance for units of study for which he or she is Commonwealth supported, if certain requirements are met.

The amount of assistance to which the student may be entitled is based on his or her student contribution amounts for the units, less any up‑front payments. The assistance is paid to a higher education provider to discharge the student’s liability to pay his or her student contribution amounts.

Note 1:       Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

Note 2:       This Part does not apply to Table C providers: see section 5‑1.

87‑5  The HECS‑HELP Guidelines

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

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

Note 2:       Matters arising under section 93‑10 may be dealt with in the Commonwealth Grant Scheme Guidelines.

Division 90Who is entitled to HECS‑HELP assistance?

90‑1  Entitlement to HECS‑HELP assistance

                   Subject to section 90‑10, a student is entitled to *HECS‑HELP assistance for a unit of study in which the student is enrolled with a higher education provider as part of a *course of study if:

                    (aa)  the course of study is an *accredited course in relation to the provider; and

                     (a)  the student meets the citizenship or residency requirements under section 90‑5; and

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

                     (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 187‑1); or

                             (ii)  pays, as one or more *up‑front payments in relation to the unit, 90% of his or her *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.

90‑5  Citizenship or residency requirements

             (1)  A student meets the citizenship or residency requirements under this section in relation to a unit of study if the student is:

                     (a)  an Australian citizen; or

                     (b)  a *permanent humanitarian visa holder who will be resident in Australia for the duration of the unit.

             (2)  In determining, for the purpose of paragraph (1)(b), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:

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

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

             (3)  Despite subsections (1) and (2), a student does not meet the citizenship or residency requirements in relation to a unit of study if the provider reasonably expects that the student will not undertake in Australia any units of study contributing to the *course of study of which the unit forms a part.

90‑10  Students not entitled to HECS‑HELP assistance

                   A student is not entitled to *HECS‑HELP assistance for a unit of study if:

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

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

Division 93How are amounts of HECS‑HELP assistance worked out?

93‑1  The amount of HECS‑HELP assistance for a unit of study

                   The amount of *HECS‑HELP assistance to which a student is entitled for a unit of study is the difference between:

                     (a)  his or her *student contribution amount for the unit; and

                     (b)  the sum of any *up‑front payments made in relation to the unit.

93‑5  Student contribution amounts

             (1)  A person’s student contribution amount for a unit of study is the amount worked out as follows:

                  

where the person’s student contribution amount for a place in the unit is:

                     (a)  if only one student contribution amount has been determined for places in the unit under subsection 19‑87(2)—that student contribution amount; or

                     (b)  if more than one student contribution amount has been determined for places in the unit under that subsection—the student contribution amount determined under that subsection that applies to the person.

             (2)  A person’s *student contribution amount for a place in a unit must not exceed the *maximum student contribution amount for a place in the unit.

             (3)  A person’s student contribution amount for a unit of study is nil if the person undertakes the unit as part of an *enabling course. This subsection has effect despite subsection (1).

             (4)  If an amount worked out by using the formula in subsection (1) is an amount made up of dollars and cents, round the amount down to the nearest dollar.

93‑10  Maximum student contribution amounts for places

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

 

Maximum student contribution amounts for places

Item

Column 1
For a place in a unit in this funding cluster:

Column 2
The maximum student contribution is:

1

Law, Accounting, Administration, Economics, Commerce

$8,859

2

Humanities

$5,310

3

Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health

(a) for a place in a unit in Mathematics, Statistics, Computing, Built Environment or Other Health—$7,567; or

(b) for a place in a unit in Behavioural Science or Social Studies—$5,310.

4

Education

$5,310

5

Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts

(a) for a place in a unit in Clinical Psychology, Foreign Languages or Visual and Performing Arts—$5,310; or

(b) for a place in a unit in Allied Health—$7,567.

6

Nursing

$5,310

7

Engineering, Science, Surveying

for a place in a unit in Engineering, Science or Surveying—$7,567.

8

Dentistry, Medicine, Veterinary Science, Agriculture

(a) for a place in a unit in Dentistry, Medicine or Veterinary Science—$8,859; or

(b) for a place in a unit in Agriculture—$7,567.

Note 1:       Commonwealth Grant Scheme Guidelines made for the purposes of section 33‑35 and this section deal with the funding clusters in which particular units of study are included and whether particular units are units in a particular part of a funding cluster.

Note 2:       Maximum student contribution amounts for places are indexed under Part 5‑6.

             (2)  The Commonwealth Grant Scheme Guidelines may specify, for the purposes of column 2 of the table in subsection (1):

                     (a)  how to determine whether a particular unit is a unit in a particular part of a *funding cluster; or

                     (b)  that a particular unit is in a particular part of a funding cluster.

93‑15  Up‑front payments

             (1)  An up‑front payment, in relation to a unit of study for which a person is liable to pay his or her *student contribution amount, is a payment of part of the student’s student contribution amount for the unit, other than a payment of *HECS‑HELP assistance under this Part.

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

             (3)  A payment made in respect of a person is not an up‑front payment to the extent that:

                     (a)  the payment; or

                     (b)  if other up‑front payments have already been made in respect of the person in relation to the unit—the sum of the payment and all of those other up‑front payments;

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

Note 1:       The Commonwealth pays one‑ninth of any up‑front payments in respect of a student if the total amount of the up‑front payments, for the unit and the student’s other units with the same census date, is 90% of the sum of his or her student contribution amounts for all of his or her units or is $500 or more: see sections 96‑5 and 96‑10.

Note 2:       It is a condition of grants under Part 2‑2 that a higher education provider not accept an up‑front payment of more than 90% of a student’s student contribution amount from a student who is entitled to HECS‑HELP assistance: see section 36‑50.

Division 96How are amounts of HECS‑HELP assistance paid?

Note:       Part 5‑1 deals generally with payments by the Commonwealth under this Act.

96‑1  Payments to higher education providers—no up‑front payment of student contribution amount

                   If a student is entitled to an amount of *HECS‑HELP assistance for a unit of study with a higher education provider and no *up‑front payments are made for the unit, the Commonwealth must:

                     (a)  as a benefit to the student, lend to the student the amount of HECS‑HELP assistance; and

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

96‑5  Payments to higher education providers—partial up‑front payment of student contribution amount

General

             (1)  If:

                     (a)  a student is entitled to an amount of *HECS‑HELP assistance for a unit of study with a higher education provider; and

                     (b)  one or more *up‑front payments have been made for the unit; and

                     (c)  the sum of all of the up‑front payments made for all of the student’s units of study:

                              (i)  that have the same *census date as that unit; and

                             (ii)  in relation to which the student is enrolled with the provider as a *Commonwealth supported student;

                            is less than 90% of the sum of the student’s *student contribution amounts for all of his or her units; and

                     (d)  the sum of all of the up‑front payments made for all of the units is $500 or more;

the Commonwealth must pay the amount of HECS‑HELP assistance in accordance with subsections (2) and (3).

Payment of loan amount

             (2)  The Commonwealth must:

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

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

Payment of discount amount

             (3)  The Commonwealth must, as a benefit to the student, pay to the provider an amount equal to the *HECS‑HELP discount for the unit in discharge of that amount of the student’s liability to pay his or her *student contribution amount for the unit.

Meaning of HECS‑HELP discount

             (4)  The HECS‑HELP discount for a unit of study is an amount equal to one‑ninth of the sum of all of the *up‑front payments made for the unit.

Example:    Robert is required to pay a student contribution amount of $2,745 by 31 January 2012, and makes an up‑front payment of $900 on 20 January 2012.

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

                   The up‑front payment exceeded $500 so there is a HECS‑HELP discount of $100 (one‑ninth of $900). The Commonwealth lends to Robert the remainder of the HECS‑HELP assistance, an amount of $1,745 ($1,845 minus $100).

96‑10  Payments to higher education providers—full up‑front payment of student contribution amount

                   If:

                     (a)  a student is entitled to an amount of *HECS‑HELP assistance for a unit of study with a higher education provider; and

                     (b)  one or more *up‑front payments have been made for the unit; and

                     (c)  the sum of all of the up‑front payments made for all of the student’s units of study:

                              (i)  that have the same *census date as that unit; and

                             (ii)  in relation to which the student is enrolled as a *Commonwealth supported student;

                            is 90% of the sum of the student’s *student contribution amounts for all of his or her units;

the Commonwealth must, as a benefit to the student, pay to the provider the amount of HECS‑HELP assistance for the unit in discharge of that amount of the student’s liability to pay his or her student contribution amount for the unit.

Note:          HECS‑HELP assistance does not give rise to a HECS‑HELP debt if there has been an up‑front payment of 90% of a student’s student contribution amount for the unit and for the student’s other units with the same census date.

Part 3‑3FEE‑HELP assistance

Division 101Introduction

101‑1  What this Part is about

A student may be entitled to FEE‑HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met.

The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider or, if the student accesses units through Open Universities Australia, that body, to discharge the student’s liability to pay his or her tuition fees.

Note:          Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

101‑5  The FEE‑HELP Guidelines

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

Note:          The FEE‑HELP Guidelines are made by the Minister under section 238‑10.

Division 104Who is entitled to FEE‑HELP assistance?

Subdivision 104‑ABasic rules

104‑1  Entitlement to FEE‑HELP assistance

             (1)  Subject to this section and sections 104‑2, 104‑3 and 104‑4, a student is entitled to *FEE‑HELP assistance for a unit of study if:

                     (a)  the student meets the citizenship or residency requirements under section 104‑5; and

                     (b)  the student’s *FEE‑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 104‑10; and

                      (f)  the unit:

                              (i)  is, or is to be, undertaken as part of a *course of study; or

                             (ii)  is a unit access to which was provided by *Open Universities Australia; or

                            (iii)  is part of a *bridging course for overseas‑trained professionals; and

                     (g)  the student:

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

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

                     (h)  the student *meets the tax file number requirements (see section 187‑1); and

                      (i)  the student has, on or before the census date:

                              (i)  if access to the unit was provided by Open Universities Australia—completed, signed and given to an *appropriate officer of Open Universities Australia a *request for Commonwealth assistance in relation to the unit; or

                             (ii)  in any other case—completed, signed and given to an appropriate officer of the higher education provider a request for Commonwealth assistance in relation to the unit or, where the course of study of which the unit forms a part is, or is to be, undertaken with the provider, in relation to the course of study.

             (2)  A student is not entitled to *FEE‑HELP assistance for a unit of study if:

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

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

104‑2  Failure by a student to complete previous units accessed through Open Universities Australia

                   A student is not entitled to *FEE‑HELP assistance for a unit of study access to which is provided by *Open Universities Australia if:

                     (a)  the student has already undertaken 8 or more other units of study, access to which was provided by Open Universities Australia; and

                     (b)  the student did not successfully complete at least 50% of those other units.

104‑3  Failure by Open Universities Australia to comply with FEE‑HELP Guidelines etc.

             (1)  The Minister may determine, by legislative instrument, that there is to be no entitlement to *FEE‑HELP assistance for a specified year for units of study to which access is provided by *Open Universities Australia, if the Minister is satisfied that Open Universities Australia has, during the 2 years immediately preceding the specified year, failed to comply with the FEE‑HELP Guidelines or with subsection (5).

             (2)  Without limiting the generality of what may be included in the FEE‑HELP Guidelines, they may include any or all of the following:

                     (a)  requirements relating to the financial viability of *Open Universities Australia;

                     (b)  requirements relating to the quality of tuition accessed through Open Universities Australia;

                     (c)  requirements relating to fairness in the treatment of persons accessing, or seeking to access, tuition through Open Universities Australia;

                     (d)  requirements relating to compliance with this Act, the regulations and other Guidelines made under this Act;

                     (e)  requirements relating to *tuition fees for units of study accessed through Open Universities Australia;

                      (f)  requirements relating to the provision of information to the Commonwealth by Open Universities Australia that is relevant in any way to the provision of *FEE‑HELP assistance to students accessing units of study through Open Universities Australia, or the repayment of the *HELP debts of those students;

                     (g)  administrative requirements of the kinds imposed on higher education providers under Parts 5.2 and 5.3 of this Act.

             (3)  A student is not entitled to *FEE‑HELP assistance for a unit of study if:

                     (a)  access to the unit is provided by *Open Universities Australia; and

                     (b)  the Minister has made a determination under subsection (1) in relation to the year during which the unit is accessed; and

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

             (5)  *Open Universities Australia must comply with section 19‑37 as if it were a higher education provider.

104‑4  Failure by Open Universities Australia to set tuition fees and census date

             (1)  This section applies to a unit of study access to which is provided by *Open Universities Australia during a period ascertained in accordance with the FEE‑HELP Guidelines.

             (2)  *Open Universities Australia must determine, for the unit, one or more *fees that are to apply to students to whom Open Universities Australia provides access to the unit during the period.

       (2AA)  In determining more than one *fee under subsection (2), *Open Universities Australia may have regard to any matters Open Universities Australia considers appropriate, other than matters specified in the FEE‑HELP Guidelines as matters to which Open Universities Australia must not have regard.

          (2A)  *Open Universities Australia must not vary a *fee unless Open Universities Australia:

                     (a)  does so:

                              (i)  before the date ascertained in accordance with the FEE‑HELP Guidelines; and

                             (ii)  in circumstances specified in the FEE‑HELP Guidelines; or

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

             (3)  A fee includes any tuition, examination or other fee payable to *Open Universities Australia by those students in relation to the unit.

             (4)  A fee does not include a fee:

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

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

                     (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 FEE‑HELP Guidelines; and

                             (ii)  in circumstances specified in the FEE‑HELP Guidelines; or

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

Consequence of failure to set tuition fees and census date

             (6)  If *Open Universities Australia does not:

                     (a)  determine a *fee in accordance with subsection (2) for the unit for the period; or

                     (b)  determine a *census date in accordance with subsection (5) for the unit for the period;

no student to whom Open Universities Australia provides access to the unit for that period is entitled to *FEE‑HELP assistance for the unit.

104‑5  Citizenship or residency requirements

             (1)  A student meets the citizenship or residency requirements under this section in relation to a unit of study if the student is:

                     (a)  an Australian citizen; or

                     (b)  a *permanent humanitarian visa holder who will be resident in Australia for the duration of the unit; or

                     (c)  if the student is undertaking, or is to undertake, the unit as part of a *bridging course for overseas‑trained professionals—a *permanent visa holder who will be resident in Australia for the duration of the unit.

             (2)  In determining, for the purpose of paragraph (1)(b) or (c), whether the student will be resident in Australia for the duration of the unit, disregard any period of residence outside Australia that:

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

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

             (3)  Despite subsections (1) and (2), 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 overseas‑trained professionals, of which the unit forms a part.

             (4)  Despite subsections (1) and (2), a student does not meet the citizenship or residency requirements in relation to a unit of study to which access was provided by *Open Universities Australia if the student was not resident in Australia on the day the student gave the *request for Commonwealth assistance in relation to the unit as referred to in subparagraph 104‑1(1)(i)(i).

104‑10  Course requirements

             (1)  The course requirements for *FEE‑HELP assistance for a unit of study are that:

                     (a)  if the unit is being undertaken as part of a *course of study, the course is not a course that:

                              (i)  is subject to a determination under subsection (2); or

                             (ii)  is with a higher education provider that is subject to a determination under subsection (2); and

                     (b)  if the unit is being undertaken as part of a course of study with a higher education provider:

                              (i)  the course of study is an *accredited course in relation to the provider; or

                             (ii)  if the provider is a *self‑accrediting entity—the course of study is an *enabling course.

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

                     (a)  a specified course provided by a specified higher education provider is a course in relation to which *FEE‑HELP assistance is unavailable; or

                     (b)  all courses provided by a specified higher education provider are courses in relation to which FEE‑HELP assistance is unavailable.

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

             (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 courses, with the provider.

Subdivision 104‑BFEE‑HELP balances

104‑15  A person’s FEE‑HELP balance

             (1)  A person’s FEE‑HELP balance at a particular time is:

                     (a)  if the *FEE‑HELP limit in relation to the person at the time exceeds the sum of all of the amounts of *FEE‑HELP assistance and *VET FEE‑HELP assistance that have previously been payable to the person, being that sum as reduced by any amounts previously re‑credited under this Subdivision or Subdivision 7‑B of Schedule 1A—that excess; and

                     (b)  otherwise—zero.

Note:          If an amount is to be re‑credited to a FEE‑HELP balance, the balance that is to be re‑credited is worked out immediately before that re‑crediting. The balance is worked out after the re‑crediting by taking account of the amount re‑credited. If a person’s FEE‑HELP limit has been reduced, the balance might not increase, or might not increase by the same amount as the amount re‑credited.

             (2)  To avoid doubt, the sum referred to in paragraph (1)(a) includes amounts of *FEE‑HELP assistance and *VET FEE‑HELP assistance that have been repaid.

104‑20  The FEE‑HELP limit

                   The FEE‑HELP limit is:

                     (a)  $80,000; or

                     (b)  in relation to a person who is enrolled in a *course of study in medicine, a *course of study in dentistry or a *course of study in veterinary science, while the person is enrolled in that course—$100,000.

Note:          The FEE‑HELP limit is indexed under Part 5‑6.

104‑25  Main case of re‑crediting a person’s FEE‑HELP balance

          (1A)  If section 104‑42 applies to re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person has received for a unit of study, then this section does not apply in relation to that unit.

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

                     (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 104‑30); and

                     (d)  the person applies in writing to the provider for re‑crediting of the FEE‑HELP balance; and

                     (e)  either:

                              (i)  the application is made before the end of the application period under section 104‑35; or

                             (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, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person has received for a unit of study if:

                     (a)  access to the unit was provided by Open Universities Australia; and

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

                     (c)  Open Universities Australia is satisfied that special circumstances apply to the person (see section 104‑30); and

                     (d)  the person applies in writing to Open Universities Australia for re‑crediting of the FEE‑HELP balance; and

                     (e)  either:

                              (i)  the application is made before the end of the application period under section 104‑35; or

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

Note:          A FEE‑HELP debt relating to a unit of study will be remitted if the FEE‑HELP balance in relation to the unit is re‑credited: see section 137‑10.

             (3)  If the provider is unable to act for one or more of the purposes of subsection (1) or (2), or section 104‑30, 104‑35 or 104‑40, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.

104‑27  Re‑crediting a person’s FEE‑HELP balance—no tax file number

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

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

                     (b)  subsection 193‑10(1) applies to the person in relation to the unit.

             (2)  *Open Universities Australia must, on the *Secretary’s behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person has received for a unit of study if subsection 193‑10(2) applies to the person in relation to the unit.

Note:          A FEE‑HELP debt relating to a unit of study will be remitted if the FEE‑HELP balance in relation to the unit is re‑credited: see section 137‑10.

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

104‑30  Special circumstances

             (1)  For the purposes of paragraph 104‑25(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:

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

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

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

             (2)  If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36‑21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.

Note:          The matters referred to in paragraphs 36‑21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS‑HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.

             (3)  For the purposes of paragraph 104‑25(2)(c), special circumstances apply to the person if and only if *Open Universities Australia is satisfied that circumstances apply to the person that:

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

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

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

104‑35  Application period

             (1)  If:

                     (a)  the person applying under 104‑25(1)(d) for the re‑crediting of the person’s *FEE‑HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; and

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

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

          (1A)  If:

                     (a)  the person applying under paragraph 104‑25(2)(d) for the re‑crediting of the person’s *FEE‑HELP balance in relation to a unit of study has withdrawn from the unit; and

                     (b)  *Open Universities Australia gives notice to the person that the withdrawal has taken effect;

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

             (2)  If subsections (1) and (1A) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.

104‑40  Dealing with applications

             (1)  If:

                     (a)  the application is made under paragraph 104‑25(1)(d) before the end of the relevant application period; or

                     (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 104‑25(2)(d) before the end of the relevant application period; or

                     (b)  *Open Universities Australia waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period;

Open Universities Australia must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision of the application.

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

Note:          Refusals of applications are reviewable under Part 5‑7.

104‑42  Re‑crediting a person’s FEE‑HELP balance if provider ceases to provide course of which unit forms part

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

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

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

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

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

Note:          A FEE‑HELP debt relating to a unit of study will be remitted if the FEE‑HELP balance in relation to the unit is re‑credited: see subsection 137‑10(4).

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

Subdivision 104‑CBridging courses for overseas‑trained professionals

104‑45  Meaning of bridging course for overseas‑trained professionals

Courses consisting of subjects or units

             (1)  One or more subjects or units in which a person is enrolled with a higher education provider, or to which access is provided by *Open Universities Australia, are together a bridging course for overseas‑trained professionals if:

                     (a)  the person holds an *assessment statement issued by an *assessing body for a *listed professional occupation; and

                     (b)  the statement is to the effect that, in the body’s opinion, if the person were successfully to undertake additional studies of a kind specified in the statement, the person would meet the *requirements for entry to that occupation; and

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

                              (i)  enrolling, or proposing to enrol, on a *non‑award basis, in those subjects or units with the provider; or

                             (ii)  accessing, or proposing to access, those subjects or units through Open Universities Australia; and

                     (d)  the total student load imposed on the person in relation to those subjects or units does not exceed the student load that, in the opinion of the provider or Open Universities Australia, represents the load imposed on a full‑time student for one year; and

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

Courses consisting of occupation‑related courses of instruction

             (2)  One or more occupation‑related courses of instruction in which a person is enrolled with a higher education provider, or to which access is provided by *Open Universities Australia, are together a bridging course for overseas‑trained professionals if:

                     (a)  the person holds an *assessment statement issued by an *assessing body for a *listed professional occupation; and

                     (b)  the statement is to the effect that, in the body’s opinion, if the person were to be successful in one or more examinations specified in the statement, the person would meet the *requirements for entry to that occupation; and

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

                              (i)  enrolling, or proposing to enrol, on a *non‑award basis, in those occupation‑related courses of instruction with the provider; or

                             (ii)  accessing, or proposing to access, those occupation‑related courses of instruction through Open Universities Australia; and

                     (d)  the total student load imposed on the person in relation to those courses does not exceed the student load that, in the opinion of the provider or Open Universities Australia, represents the load imposed on a full‑time student for one year; and

                     (e)  those courses relate to the assessment statement.

Courses consisting of tuition and training programs

             (3)  A tuition and training program in which a person is enrolled with a higher education provider, or to which access is provided by *Open Universities Australia, is a bridging course for overseas‑trained professionals if:

                     (a)  the person holds an *assessment statement issued by an *assessing body for a *listed professional occupation; and

                     (b)  the statement is to the effect that, in the body’s opinion, if the person were to undertake a tuition and training program of a kind specified in the statement, the person would meet the *requirements for entry to that occupation; and

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

                              (i)  enrolling, or proposing to enrol, on a *non‑award basis, in a tuition and training program with the provider; or

                             (ii)  accessing, or proposing to access, a tuition and training program through Open Universities Australia; and

                     (d)  the total student load imposed on the person in relation to that program does not exceed the student load that, in the opinion of the provider or Open Universities Australia, represents the load imposed on a full‑time student for one year; and

                     (e)  that program relates to the assessment statement.

104‑50  Assessment statements

             (1)  An *assessing body for a *listed professional occupation may give to a person who:

                     (a)  holds a qualification that:

                              (i)  was awarded in a foreign country; and

                             (ii)  relates to that occupation; and

                     (b)  proposes to seek entry to that occupation:

                              (i)  in Australia; or

                             (ii)  if the assessing body is an *assessing body of a State or Territory—in that State or Territory;

a written statement to the effect that, in the body’s opinion, if the person were to do any or all of the things referred to in subsection (2), the person would meet the *requirements for entry to that occupation. The statement is an assessment statement.

             (2)  The statement may refer to any or all of the following:

                     (a)  successfully undertaking additional studies of a kind specified in the statement;

                     (b)  being successful in one or more examinations specified in the statement;

                     (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).

104‑55  Meaning of assessing body

             (1)  An assessing body for a particular *listed professional occupation is a person or body specified in the FEE‑HELP Guidelines as an assessing body for that occupation.

             (2)  This section does not prevent 2 or more persons or bodies from being assessing bodies for the same *listed professional occupation.

             (3)  The FEE‑HELP Guidelines may limit the specification of a person or body as an assessing body for a particular *listed professional occupation to:

                     (a)  a particular State; or

                     (b)  the Australian Capital Territory; or

                     (c)  the Northern Territory.

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

104‑60  Meaning of listed professional occupations

             (1)  A listed professional occupation is an *occupation specified in the FEE‑HELP Guidelines as a listed professional occupation.

             (2)  To avoid doubt, an *occupation may be specified even if it is not one of the traditional professions.

104‑65  Occupation includes part of an occupation

             (1)  An occupation includes a part of an occupation specified in the FEE‑HELP Guidelines as an occupation in its own right.

             (2)  The following are examples of ways in which a part of an occupation can be specified:

                     (a)  so much of an occupation as has a bachelor degree (or equivalent) entry requirement;

                     (b)  so much of an occupation as consists of a particular specialisation.

104‑70  Requirements for entry to an occupation

             (1)  The requirements for entry, to a *listed professional occupation, are the educational requirements:

                     (a)  for entry to that occupation in Australia; or

                     (b)  if the requirements are referred to in an *assessment statement given by an *assessing body of a State or Territory for that occupation—for entry to that occupation in that State or Territory.

             (2)  A requirement for entry to a *listed professional occupation may:

                     (a)  be imposed by or under a law; or

                     (b)  be imposed by or under the rules of a body; or

                     (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 occupation‑related study unit, an occupation‑related course of instruction or an occupation‑related tuition and training program.

Division 107How are amounts of FEE‑HELP assistance worked out?

107‑1  The amount of FEE‑HELP assistance for a unit of study

                   The amount of *FEE‑HELP assistance to which a student is entitled for a unit of study is the difference between:

                     (a)  the student’s *tuition fee for the unit; and

                     (b)  the sum of any *up‑front payments made in relation to the unit.

Note:          A lesser amount may be payable because of section 107‑10.

107‑5  Up‑front payments

             (1)  An up‑front payment, in relation to a unit of study for which a student is liable to pay a *tuition fee, is a payment of all or part of the student’s tuition fee for the unit, other than a payment of *FEE‑HELP assistance under this Part.

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

107‑10  Amounts of FEE‑HELP assistance and VET FEE‑HELP assistance must not exceed the FEE‑HELP balance

Amount of FEE‑HELP assistance for one unit

             (1)  The amount of *FEE‑HELP assistance to which a student is entitled for a unit of study is an amount equal to the student’s *FEE‑HELP balance on the *census date for the unit if:

                     (a)  there is no other:

                              (i)  unit of study, with the same census date, for which the student is entitled to FEE‑HELP assistance; or

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

                     (b)  the amount of FEE‑HELP assistance to which the student would be entitled under section 107‑1 for the unit would exceed that FEE‑HELP balance.

Amount of FEE‑HELP assistance for more than one unit

             (2)  If the sum of:

                     (a)  the amount of *FEE‑HELP assistance to which a student would be entitled under section 107‑1 for a unit of study; and

                     (b)  any other amounts of:

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

                             (ii)  *VET FEE‑HELP assistance to which the student would be entitled under clause 52 of Schedule 1A for other units that have the same census date as that unit;

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

Example:    Kath has a FEE‑HELP balance of $2,000, and is enrolled in 4 units with the same census date. Kath’s tuition fee for each unit is $600. The total amount of FEE‑HELP assistance to which Kath is entitled for the units is $2,000, even though the total amount of her tuition fees for the units is $2,400.

             (3)  If the student has enrolled in the units with more than one higher education provider or *VET provider, and access to none of the units was provided by *Open Universities Australia, the student must notify each provider of the proportion of the total amount of *FEE‑HELP assistance or *VET FEE‑HELP assistance that is to be payable in relation to the units in which the student has enrolled with that provider.

             (4)  If access to some, but not all, of the units of study was provided by *Open Universities Australia, the student must:

                     (a)  notify Open Universities Australia of the proportion of the total amount of *FEE‑HELP assistance that is to be payable in relation to units access to which was provided by Open Universities Australia; and

                     (b)  notify each higher education provider or *VET provider at which the student is enrolled in a unit, access to which was not provided by Open Universities Australia, of the proportion of the total amount of FEE‑HELP assistance or *VET FEE‑HELP assistance that is to be payable in relation to that unit.

Division 110How are amounts of FEE‑HELP assistance paid?

Note:       Part 5‑1 deals generally with payments by the Commonwealth under this Act.

110‑1  Payments

             (1)  If a student is entitled to an amount of *FEE‑HELP assistance for a unit of study with a higher education provider, and access to the unit was not provided by *Open Universities Australia, the Commonwealth must:

                     (a)  as a benefit to the student, lend to the student the amount of FEE‑HELP assistance; and

                     (b)  pay the amount lent to the provider in discharge of the student’s liability to pay his or her *tuition fee for the unit.

             (2)  If a student is entitled to an amount of *FEE‑HELP assistance for a unit of study and access to the unit was provided by *Open Universities Australia, the Commonwealth must:

                     (a)  as a benefit to the student, lend to the student the amount of FEE‑HELP assistance; and

                     (b)  pay the amount lent to Open Universities Australia in discharge of the student’s liability to pay his or her *tuition fee for the unit.

110‑5  Effect of FEE‑HELP balance being re‑credited

             (1)  If, under subsection 104‑25(1), 104‑27(1) or section 104‑42, a person’s *FEE‑HELP balance is re‑credited with an amount relating to *FEE‑HELP assistance for a unit of study, the provider must pay to the Commonwealth an amount equal to the amount of FEE‑HELP assistance to which the person was entitled for the unit.

Note:          The provider must repay the amount under subsection (1) even if the person’s FEE‑HELP balance is not increased by an amount equal to the amount re‑credited.

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

                     (a)  the person’s *FEE‑HELP balance was re‑credited under subsection 104‑25(1) (main case of re‑crediting a person’s FEE‑HELP balance); and

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

          (1B)  The Higher Education Provider Guidelines may, in setting out the tuition assurance requirements, specify, in relation to the re‑crediting of a person’s *FEE‑HELP balance in circumstances to which subsection (1A) applies:

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

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

             (2)  If, under subsection 104‑25(2) or 104‑27(2), *Open Universities Australia re‑credits a person’s *FEE‑HELP balance with an amount relating to *FEE‑HELP assistance for a unit of study, Open Universities Australia must pay to the Commonwealth an amount equal to the amount of FEE‑HELP assistance to which the person was entitled for the unit.

Part 3‑4OS‑HELP assistance

Division 115Introduction

115‑1  What this Part is about

Students may be entitled to OS‑HELP assistance for periods during which they are undertaking study overseas, if they meet certain requirements. In particular, their higher education provider must have selected them for OS‑HELP assistance.

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

The purpose of OS‑HELP assistance is to help students based in Australia to do part of their course of study overseas.

Note:          Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

115‑5  The OS‑HELP Guidelines

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

Note:          The OS‑HELP Guidelines are made by the Minister under section 238‑10.

Division 118Who is entitled to OS‑HELP assistance?

118‑1  Entitlement to OS‑HELP assistance

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

                     (a)  the student meets the citizenship or residency requirements under section 118‑5; and

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

                     (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 118‑7; and

                     (e)  the student meets the overseas study requirements under section 118‑10; and

                      (f)  on the completion of that study outside Australia, the student will have to complete units of study that have a total EFTSL value of at least 0.125 EFTSL in order to complete the course requirements for that course of study; and

                     (g)  the student *meets the tax file number requirements (see section 187‑1); and

                     (h)  the student has completed, signed and given to an *appropriate officer of the home provider a *request for Commonwealth assistance in relation to that course of study; and

                   (ha)  the student has applied to the home provider for receipt of OS‑HELP assistance in relation to the period; and

                      (i)  the home provider has selected the student for receipt of OS‑HELP assistance in relation to the period (see section 118‑15).

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

                     (a)  another higher education provider has granted OS‑HELP assistance to the student in relation to:

                              (i)  that period; or

                             (ii)  a period that overlaps with that period; or

                     (b)  the student applies to the home provider for the assistance after the student has completed the study in relation to the period.

             (3)  To avoid doubt, the student may be outside Australia when the student applies to the home provider for receipt of *OS‑HELP assistance.

118‑2  Entitlement to supplementary amount for Asian language study

             (1)  A student is entitled to a *supplementary amount for Asian language study in relation to a period of 6 months if:

                     (a)  the student is entitled to *OS‑HELP assistance in relation to that period; and

                     (b)  the OS‑HELP assistance is for overseas study in Asia; and

                     (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 118‑15).

Note:          If a student is entitled to a supplementary amount for Asian language study, the amount of OS‑HELP assistance to which the student is entitled may include an amount for that language study in addition to the amount the student may receive for overseas study: see section 121‑1.

             (2)  However, the student is not entitled to a *supplementary amount for Asian language study in relation to that period if the student applies to the home provider for the assistance after the student has completed the intensive study in an Asian language in relation to the period.

             (3)  For the purposes of subsection (1), the OS‑HELP Guidelines may specify circumstances in which a student undertakes intensive study in an Asian language in preparation for undertaking overseas study in Asia.

118‑5  Citizenship or residency requirements

                   The citizenship or residency requirements for *OS‑HELP assistance are that the student in question is:

                     (a)  an Australian citizen; or

                     (b)  a *permanent humanitarian visa holder.

118‑7  Prior study requirements

                   The prior study requirements for *OS‑HELP assistance are that:

                     (a)  the student in question has completed units of study in Australia that count towards the course requirements for the *course of study; and

                     (b)  the units of study have a total *EFTSL value of at least one *EFTSL; and

                     (c)  the student was a *Commonwealth supported student in relation to the units.

118‑10  Overseas study requirements

                   The overseas study requirements for *OS‑HELP assistance are that:

                     (a)  the student in question:

                              (i)  is undertaking full‑time study; and

                             (ii)  will be outside Australia while undertaking that study; and

                     (b)  the study commences on or after 1 January 2005; and

                     (c)  the study outside Australia will count towards the course requirements of the *course of study in which the student is enrolled with the home provider.

Note:          For paragraph (a), the study need not be at a higher education provider’s overseas campus or with an overseas higher education institution.

118‑15  Selection of students for receipt of OS‑HELP assistance and supplementary amounts for Asian language study

             (1)  The OS‑HELP Guidelines may set out principles and procedures that higher education providers must follow in deciding whether to select students for receipt of *OS‑HELP assistance or *supplementary amounts for Asian language study.

             (3)  Any decision by a higher education provider whether to select a student for receipt of *OS‑HELP assistance or a *supplementary amount for Asian language study must be made in accordance with the OS‑HELP Guidelines.

             (4)  Without limiting the matters that may be included in the OS‑HELP Guidelines made for the purposes of subsection (3), those guidelines may deal with:

                     (a)  the number of its students whom higher education providers may select for receipt of *OS‑HELP assistance or *supplementary amounts for Asian language study; or

                     (b)  how that number is to be determined.

Division 121How are amounts of OS‑HELP assistance worked out?

121‑1  The amount of OS‑HELP assistance for a period

             (1)  The amount of *OS‑HELP assistance to which a student is entitled for a period of 6 months is the sum of the following amounts determined by the higher education provider to which the student applied for selection for receipt of the assistance:

                     (a)  the amount determined by the provider for the overseas study (see subsections (2) and (3));

                     (b)  if the student is entitled to a *supplementary amount for Asian language study—the supplementary amount determined by the provider for that language study (see subsections (4) and (5)).

Determining amounts for overseas study

             (2)  The amount determined for overseas study must not exceed:

                     (a)  the amount specified in the application; or

                     (b)  the *maximum OS‑HELP (overseas study) amount for a period of 6 months.

             (3)  The amount determined for overseas study must not be less than the higher education provider’s *minimum OS‑HELP (overseas study) amount, if the provider has a minimum OS‑HELP (overseas study) amount.

Determining supplementary amounts for Asian language study

             (4)  The supplementary amount determined for Asian language study must not exceed:

                     (a)  the amount specified in the application; or

                     (b)  the *maximum OS‑HELP (Asian language study) amount for a period of 6 months.

             (5)  The supplementary amount determined for Asian language study must not be less than the higher education provider’s *minimum OS‑HELP (Asian language study) amount, if the provider has a minimum OS‑HELP (Asian language study) amount.

121‑5  Maximum OS‑HELP (overseas study) amount

             (1)  The maximum OS‑HELP (overseas study) amount, for a period of 6 months, is:

                     (a)  if the *OS‑HELP assistance is for overseas study undertaken in Asia—$7,500; or

                     (b)  in any other case—$6,250.

Note:          The maximum OS‑HELP (overseas study) amount is indexed under Part 5‑6.

             (2)  For the purposes of subsection (1), the OS‑HELP Guidelines may specify whether overseas study undertaken at a particular place is undertaken in Asia.

121‑10  Minimum OS‑HELP (overseas study) amount

             (1)  A higher education provider may determine, in writing, its *minimum OS‑HELP (overseas study) amount.

             (2)  The determination has effect until:

                     (a)  it is replaced by a later determination; or

                     (b)  it is revoked.

121‑15  Maximum OS‑HELP (Asian language study) amount

                   The maximum OS‑HELP (Asian language study) amount, for a period of 6 months, is $1,000.

Note:          The maximum OS‑HELP (Asian language study) amount is indexed under Part 5‑6.

121‑20  Minimum OS‑HELP (Asian language study) amount

             (1)  A higher education provider may determine, in writing, its minimum OS‑HELP (Asian language study) amount.

             (2)  The determination has effect until:

                     (a)  it is replaced by a later determination; or

                     (b)  it is revoked.

Division 124How are amounts of OS‑HELP assistance paid?

Note:       Part 5‑1 deals generally with payments by the Commonwealth under this Act.

124‑1  Amounts of OS‑HELP assistance are lent to students

             (1)  If a student is entitled to an amount of *OS‑HELP assistance for a period of 6 months, the Commonwealth must, as a benefit to the student, lend to the student the amount of OS‑HELP assistance.

             (2)  The higher education provider that selected the student for receipt of *OS‑HELP assistance in relation to the period must, on the Commonwealth’s behalf, pay to the student the amount lent.

          (2A)  The OS‑HELP Guidelines may provide that a student who is entitled to a *supplementary amount for Asian language study may be paid:

                     (a)  an amount for that language study; and

                     (b)  an amount for the overseas study;

at different times determined in accordance with those guidelines.

          (2B)  If a student is paid amounts at different times as mentioned in subsection (2A), each amount is taken to be a separate loan for the purposes of section 137‑15 (OS‑HELP debts).

             (3)  The Commonwealth must make payments to the higher education provider on account of amounts the provider pays under this section on the Commonwealth’s behalf.

Part 3‑5SA‑HELP assistance

Division 125Introduction

125‑1  What this Part is about

A student may be entitled to SA‑HELP assistance for a student services and amenities fee imposed on him or her by a higher education provider, if certain requirements are met.

The amount of the assistance is the amount of the fee, less any amounts of the fee paid on or before the day the fee is payable (except any SA‑HELP assistance paid under this Part). The assistance is paid to the provider to discharge the student’s liability to pay the fee.

Note:          Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

Division 126Who is entitled to SA‑HELP assistance?

126‑1  Entitlement to SA‑HELP assistance

             (1)  A student is entitled to *SA‑HELP assistance for a *student services and amenities fee imposed on the student for a period by a higher education provider if:

                     (a)  the student meets the citizenship or residency requirements under section 126‑5; and

                     (b)  the student is enrolled with the provider in a *course of study or a *bridging course for overseas‑trained professionals on the day on which the fee is payable; and

                     (c)  the student *meets the tax file number requirements (see section 187‑1); and

                     (d)  the student has, on or before the day on which the fee is payable, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance in relation to the fee.

             (2)  A request for Commonwealth assistance, in relation to a *student services and amenities fee imposed for a period on a person who is enrolled with a higher education provider in a *course of study or a *bridging course for overseas‑trained professionals, means a document:

                     (a)  in which the person requests the Commonwealth to provide assistance under this Act in relation to the fee for the period (and any student services and amenities fee imposed for a later period during which the person is enrolled in the course or bridging course); and

                     (b)  that is in the form approved by the Minister.

126‑5  Citizenship or residency requirements

             (1)  A student meets the citizenship or residency requirements under this section in relation to a *student services and amenities fee imposed on the student by a higher education provider if the student is, on the day the fee is payable:

                     (a)  an Australian citizen; or

                     (b)  a *permanent humanitarian visa holder resident in Australia.

             (2)  Despite subsection (1), a student does not meet the citizenship or residency requirements in relation to a *student services and amenities fee imposed on the student by a higher education provider if the provider reasonably expects that the student will not undertake in Australia any *units of study with the provider.

Division 127How are amounts of SA‑HELP assistance worked out?

127‑1  The amount of SA‑HELP assistance for a student services and amenities fee

                   The amount of *SA‑HELP assistance to which a student is entitled for a *student services and amenities fee is the difference (if any) between:

                     (a)  the fee; and

                     (b)  the sum of any payments of the fee (other than a payment of SA‑HELP assistance under this Part) made on or before the day on which the fee is payable.

Division 128How are amounts of SA‑HELP assistance paid?

Note:       Part 5‑1 deals generally with payments by the Commonwealth under this Act.

128‑1  Payments to higher education providers of loans to students

                   If a student is entitled to an amount of *SA‑HELP assistance for a *student services and amenities fee imposed by a higher education provider, the Commonwealth must:

                     (a)  as a benefit to the student, lend to the student the amount of SA‑HELP assistance; and

                     (b)  pay to the provider the amount lent in discharge of the student’s liability to pay the fee.

128‑5  Repayment by higher education provider if student does not have tax file number

                   A higher education provider must repay the Commonwealth an amount paid to the provider under section 128‑1 in discharge of a person’s liability to pay a *student services and amenities fee if subsection 193‑15(1) applies to the person.

Note 1:       Subsection 193‑15(1) applies to a person who does not have a tax file number.

Note 2:       The person’s SA‑HELP debt will be remitted if the higher education provider must repay the amount under this section: see subsection 137‑16(4).

Chapter 4Repayment of loans

  

Division 129Introduction

129‑1  What this Chapter is about

Loans that the Commonwealth makes to students under Chapter 3 are repayable under this Chapter. Loans that the Commonwealth makes to students under Schedule 1A are also repayable under this Chapter.

Each loan is incorporated into the person’s accumulated HELP debt (see Part 4‑1).

Under Part 4‑2, the accumulated debts can be repaid in 2 ways:

•      a person may make voluntary repayments (which may attract a repayment bonus); or

•      compulsory repayments (based on a person’s income) are made using the system for payment of income tax.

Part 4‑1Indebtedness

Division 134Introduction

134‑1  What this Part is about

A person incurs a HELP debt if he or she receives, as HECS‑HELP assistance, FEE‑HELP assistance, OS‑HELP assistance or SA‑HELP assistance, a loan from the Commonwealth under Chapter 3.

A person also incurs a HELP debt if he or she receives, as VET FEE‑HELP assistance, a loan from the Commonwealth under Schedule 1A.

HELP debts are incorporated into the person’s accumulated HELP debt. This accumulated debt forms the basis of working out the amounts that the person is obliged to repay (see Part 4‑2).

Division 137How do HELP debts arise?

137‑1  HELP debts

                   The following are HELP debts:

                     (a)  *HECS‑HELP debts;

                     (b)  *FEE‑HELP debts;

                     (c)  *OS‑HELP debts;

                    (ca)  *SA‑HELP debts;

                     (d)  *VET FEE‑HELP debts.

137‑5  HECS‑HELP debts

Incurring HECS‑HELP debts

             (1)  A person incurs a debt to the Commonwealth if, under section 96‑1 or 96‑5, the Commonwealth:

                     (a)  makes a loan to the person; and

                     (b)  uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *student contribution amount for a unit of study.

The debt is a HECS‑HELP debt.

             (2)  The amount of the *HECS‑HELP debt is the amount of the loan.

When HECS‑HELP debts are incurred

             (3)  A *HECS‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *student contribution amount for the unit.

Remission of HECS‑HELP debts

             (4)  A person’s *HECS‑HELP debt in relation to a unit of study is taken to be remitted if section 36‑20, 36‑24A or 36‑24B applies to the person (even if subsection 36‑20(3) applies to the provider in relation to the person).

137‑10  FEE‑HELP debts

Incurring FEE‑HELP debts

             (1)  A person incurs a debt to the Commonwealth if, under section 110‑1, the Commonwealth:

                     (a)  makes a loan to the person; and

                     (b)  uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *tuition fee for a unit of study.

The debt is a FEE‑HELP debt.

             (2)  The amount of the *FEE‑HELP debt is:

                     (a)  if the loan relates to *FEE‑HELP assistance for a unit of study that forms part of an *undergraduate course of study—an amount equal to 125% of the loan; or

                     (b)  if paragraph (a) does not apply—the amount of the loan.

When FEE‑HELP debts are incurred

             (3)  A *FEE‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *tuition fee for the unit.

Remission of FEE‑HELP debts

             (4)  A person’s *FEE‑HELP debt in relation to a unit of study is taken to be remitted if the person’s *FEE‑HELP balance is re‑credited under section 104‑25, 104‑27 or 104‑42 in relation to the unit.

Note:          The debt is taken to be remitted even if the person’s FEE‑HELP balance is not increased by an amount equal to the amount re‑credited.

137‑15  OS‑HELP debts

Incurring OS‑HELP debts

             (1)  A person incurs a debt to the Commonwealth if, under section 124‑1, the Commonwealth makes a loan to the person. The debt is an OS‑HELP debt.

Note:          For a student who is entitled to a supplementary amount for Asian language study, see subsections 124‑1(2A) and (2B).

             (2)  The amount of the *OS‑HELP debt is an amount equal to the amount of the loan.

When OS‑HELP debts are incurred

             (3)  The *OS‑HELP debt is taken to have been incurred on the day on which a higher education provider, on the Commonwealth’s behalf, paid the amount lent to the person.

137‑16  SA‑HELP debts

Incurring SA‑HELP debts

             (1)  A person incurs a debt to the Commonwealth if, under section 128‑1, the Commonwealth:

                     (a)  makes a loan to the person; and

                     (b)  uses the amount lent to make a payment of the person’s liability to pay a *student services and amenities fee.

The debt is an SA‑HELP debt.

             (2)  The amount of the *SA‑HELP debt is an amount equal to the loan.

When SA‑HELP debts are incurred

             (3)  An *SA‑HELP debt is taken to have been incurred by a person immediately after the day on which the *student services and amenities fee to which the loan relates is payable, whether or not the Commonwealth has made a payment in respect of the fee.

Remission of SA‑HELP debts

             (4)  A person’s *SA‑HELP debt in relation to a *student services and amenities fee imposed by a higher education provider is taken to be remitted if, under section 128‑5, the provider must repay the Commonwealth the amount the Commonwealth paid the provider in relation to the fee.

137‑18  VET FEE‑HELP debts

Incurring VET FEE‑HELP debts

             (1)  A person incurs a debt to the Commonwealth if, under clause 55 of Schedule 1A, the Commonwealth:

                     (a)  makes a loan to the person; and

                     (b)  uses the amount lent to make a payment in discharge of the person’s liability to pay his or her *VET tuition fee for a *VET unit of study.

The debt is a VET FEE‑HELP debt.

             (2)  The amount of the *VET FEE‑HELP debt is:

                     (a)  120% of the loan; or

                     (b)  if the *VET Guidelines specify a lesser percentage of the loan for the person—that lesser percentage of the loan.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

When VET FEE‑HELP debts are incurred

             (3)  A *VET FEE‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *VET tuition fee for the unit.

Remission of VET FEE‑HELP debts

             (4)  A person’s *VET FEE‑HELP debt in relation to a *VET unit of study is taken to be remitted if the person’s *FEE‑HELP balance is re‑credited under clause 46, 47 or 51 of Schedule 1A in relation to the unit.

Note:          The debt is taken to be remitted even if the person’s FEE‑HELP balance is not increased by an amount equal to the amount re‑credited.

137‑20  HELP debt discharged by death

                   Upon the death of a person who owes a *HELP debt to the Commonwealth, the debt is taken to have been paid.

Note:          HELP debts are not provable in bankruptcy: see subsection 82(3AB) of the Bankruptcy Act 1966.

Division 140How are accumulated HELP debts worked out?

Subdivision 140‑AOutline of this Division

140‑1  Outline of this Division

             (1)  There are 2 stages to working out a person’s *accumulated HELP debt for a financial year.

Stage 1—Former accumulated HELP debt

             (2)  The *former accumulated HELP debt is worked out by adjusting the preceding financial year’s *accumulated HELP debt to take account of:

                     (a)  changes in the Consumer Price Index; and

                     (b)  the *HELP debts that he or she incurs during the last 6 months of the preceding financial year; and

                     (c)  *voluntary repayments of the debt; and

                     (d)  *compulsory repayment amounts in respect of the debt; and

                     (e)  if compulsory repayment amounts are not required to be paid in respect of the debt—the *HECS‑HELP benefit (if any).

(See Subdivision 140‑B.)

Stage 2—Accumulated HELP debt

             (3)  The person’s *accumulated HELP debt is worked out from:

                     (a)  his or her *former accumulated HELP debt; and

                     (b)  the *HELP debts that he or she incurs during the first 6 months of the financial year; and

                     (c)  *voluntary repayments of those debts.

(See Subdivision 140‑C.)

Note:          Incurring that financial year’s accumulated HELP debt discharges the previous accumulated HELP debt and HELP debts under this Part: see section 140‑35.

Subdivision 140‑BFormer accumulated HELP debts

140‑5  Working out a former accumulated HELP debt

             (1)  A person’s former accumulated HELP debt, in relation to the person’s *accumulated HELP debt for a financial year, is worked out by multiplying:

                     (a)  the amount worked out using the following method statement; by

                     (b)  the *HELP debt indexation factor for 1 June in that financial year.

Method statement

Step 1.   Take the person’s *accumulated HELP debt for the immediately preceding financial year. (This amount is taken to be zero if the person has no accumulated HELP debt for that financial year.)

Step 2.   Take the HELP debts (if any) that the person incurred during the last 6 months of the immediately preceding financial year. Group them according to whether the debts are in relation to:

               (a)     units undertaken with a higher education provider that formed part of one particular *course of study with that provider; or

              (b)     units undertaken with a higher education provider that formed part of one particular course of study with another higher education provider; or

               (c)     units that formed part of one particular *bridging course for overseas‑trained professionals; or

              (d)     units access to which was provided by *Open Universities Australia; or

               (e)     *OS‑HELP assistance, the entitlement to which relates to the person’s enrolment in a *course of study with one particular higher education provider (see paragraph 118‑1(1)(c)); or

             (ea)     *SA‑HELP assistance for *student services and amenities fees imposed on the person by one particular higher education provider; or

               (f)     units undertaken with a *VET provider that formed part of one particular *VET course of study with that provider; or

               (g)     units undertaken with a VET provider that formed part of one particular VET course of study with another VET provider.

                   Note:             There will be more than one group of debts under paragraph (a) if the person incurred debts in relation to more than one course of study with a provider. Similarly, there could be more than one group of debts under paragraph (b), (c), (e), (ea), (f) or (g).

Step 2A. Work out the total for each group of debts. If the total for a particular group is an amount consisting of a number of whole dollars and a number of cents, the total for that group is taken to be the number of whole dollars. If the total for a group is an amount of less than one dollar, the total for the group is taken to be zero.

Step 2B. If there is more than one group of debts for the person, add together the totals for all of the groups.

Step 3.   Subtract the sum of the amounts by which the person’s debts referred to above are reduced because of any *voluntary repayments that have been made during the period:

               (a)     starting on 1 June in the immediately preceding financial year; and

              (b)     ending immediately before the next 1 June.

Step 4.   Subtract the sum of all of the person’s *compulsory repayment amounts that:

               (a)     were assessed during that period (excluding any assessed as a result of a *return given before that period); or

              (b)     were assessed after the end of that period as a result of a return given before the end of that period.

Step 4A. In respect of that period, subtract the amount of *HECS‑HELP benefit (if any) determined, in respect of the person, by the *Commissioner under section 157‑20 for an *income year, if the person did not have any *compulsory repayment amounts for that year.

Step 5.   Subtract the sum of the amounts by which any *compulsory repayment amount of the person is increased (whether as a result of an increase in the person’s *taxable income of an *income year or otherwise) by an amendment of an assessment made during that period.

Step 6.   Add the sum of the amounts by which any *compulsory repayment amount of the person is reduced (whether as a result of a reduction in the person’s *taxable income of an *income year or otherwise) by an amendment of an assessment made during that period.

Example:    Lorraine is studying part‑time for a Degree of Bachelor of Communications. On 1 June 2011, Lorraine had an accumulated HELP debt of $15,000. She incurred a HELP debt of $1,500 on 31 March 2011. She made a voluntary repayment of $525 (which includes a voluntary repayment bonus of $25) on 1 May 2012. Lorraine lodged her 2010‑11 income tax return and a compulsory repayment amount of $3,000 was assessed and notified on her income tax notice of assessment on 3 September 2011.

                   To work out Lorraine’s former accumulated HELP debt before indexation on 1 June 2012:

Step 1:        Take the previous accumulated HELP debt of $15,000 on 1 June 2011.

Step 2:        Add the HELP debt of $1,500 incurred on 31 March 2011.

Step 3:        Subtract the $525 voluntary repayment made on 1 May 2012.

Step 4:        Subtract the $3,000 compulsory repayment assessed on 3 September 2011.

Step 4A:     Does not apply because Lorraine does not satisfy the eligibility requirements for the HECS‑HELP benefit.

Steps 5 and 6: Do not apply because since 1 June 2011 Lorraine had no amendments to any assessment.

                   Lorraine’s former accumulated HELP debt before indexation on 1 June 2012 is:

                  

                   If, for example, the indexation factor for 1 June 2012 were 1.030, then the former accumulated HELP debt would be:

                  

             (2)  For the purposes of this section, an assessment, or an amendment of an assessment, is taken to have been made on the day specified in the notice of assessment, or notice of amended assessment, as the date of issue of that notice.

             (3)  If a determination by the *Commissioner under section 157‑20 is reviewed under Part 5‑7:

                     (a)  the reference in step 4A of the method statement in subsection (1) to the determination includes a reference to the decision on review; and

                     (b)  to the extent that the decision on review affects any step in the method statement—the decision on review must be taken into account in working out a person’s *former accumulated HELP debt under this section.

140‑10  HELP debt indexation factor

             (1)  The HELP debt indexation factor for 1 June in a financial year is the number (rounded to 3 decimal places) worked out as follows:

Method statement

Step 1.   Add:

               (a)     the *index number for the *quarter ending on 31 March in that financial year; and

              (b)     the index numbers for the 3 quarters that immediately preceded that quarter.

Step 2.   Add:

               (a)     the *index number for the *quarter ending on 31 March in the immediately preceding financial year; and

              (b)     the index numbers for the 3 quarters that immediately preceded that quarter.

Step 3.   The HELP debt indexation factor for 1 June in the financial year is the amount under step 1 divided by the amount under step 2.

             (2)  For the purposes of rounding a *HELP debt indexation factor, the third decimal place is rounded up if, apart from the rounding:

                     (a)  the factor would have 4 or more decimal places; and

                     (b)  the fourth decimal place would be a number greater than 4.

140‑15  Index numbers

             (1)  The index number for a *quarter is the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the *Australian Statistician in respect of that quarter.

             (2)  Subject to subsection (3), if, at any time before or after the commencement of this Act:

                     (a)  the *Australian Statistician has published or publishes an *index number in respect of a *quarter; and

                     (b)  that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;

disregard the publication of the later index for the purposes of this section.

             (3)  If, at any time before or after the commencement of this Act, the *Australian Statistician has changed or changes the reference base for the Consumer Price Index, then, in applying this section after the change took place or takes place, have regard only to *index numbers published in terms of the new reference base.

140‑20  Publishing HELP debt indexation factors

                   The *Commissioner must cause to be published before 1 June in each financial year the *HELP debt indexation factor for that 1 June.

Subdivision 140‑CAccumulated HELP debts

140‑25  Working out an accumulated HELP debt

             (1)  A person’s accumulated HELP debt, for a financial year, is worked out as follows:

                  

where:

former accumulated HELP debt is the person’s *former accumulated HELP debt in relation to that *accumulated HELP debt.

HELP debt repayments is the sum of all of the *voluntary repayments (if any) paid, on or after 1 July in the financial year and before 1 June in that year, in reduction of the *HELP debts incurred in that year.

HELP debts incurred means the amount worked out using the method statement in subsection (1A).

Example:    Paula is studying part‑time for a Degree of Bachelor of Science. On 1 June 2009, her former accumulated HELP debt was worked out using Subdivision 140‑B to be $20,000. She incurred a HELP debt of $1,500 on 31 August 2008. No repayments have been made in the 12 months from 1 June 2008.

                   Paula’s accumulated HELP debt on 1 June 2009 is worked out by taking her former accumulated HELP debt of $20,000 and adding the $1,500 HELP debt incurred on 31 August 2008. That is:

                  

          (1A)  For the purposes of the definition of HELP debts incurred in subsection (1), use the following method statement:

Step 1.   Take the HELP debts (if any) that the person incurred during the first 6 months of the financial year. Group them according to whether the debts are in relation to:

               (a)     units undertaken with a higher education provider that formed part of one particular *course of study with that provider; or

              (b)     units undertaken with a higher education provider that formed part of one particular course of study with another higher education provider; or

               (c)     units that formed part of one particular *bridging course for overseas‑trained professionals; or

              (d)     units access to which was provided by *Open Universities Australia; or

               (e)     *OS‑HELP assistance, the entitlement to which relates to the person’s enrolment in a *course of study with one particular higher education provider (see paragraph 118‑1(1)(c)); or

             (ea)     *SA‑HELP assistance for *student services and amenities fees imposed on the person by one particular higher education provider; or

               (f)     units undertaken with a *VET provider that formed part of one particular *VET course of study with that provider; or

               (g)     units undertaken with a VET provider that formed part of one particular VET course of study with another VET provider.

                   Note:             There will be more than one group of debts under paragraph (a) if the person incurred debts in relation to more than one course of study with a provider. Similarly, there could be more than one group of debts under paragraph (b), (c), (e), (ea), (f) or (g).

Step 2.   Work out the total for each group of debts. If the total for a particular group is an amount consisting of a number of whole dollars and a number of cents, the total for that group is taken to be the number of whole dollars. If the total for a group is an amount of less than one dollar, the total for the group is taken to be zero.

Step 3.   If there is more than one group of debts for the person, add together the totals for all of the groups.

             (2)  The person incurs the *accumulated HELP debt on 1 June in the financial year.

             (3)  The first financial year for which a person can have an *accumulated HELP debt is the financial year starting on 1 July 2005.

140‑30  Rounding of amounts

             (1)  If, apart from this section, a person’s *accumulated HELP debt would be an amount consisting of a number of whole dollars and a number of cents, disregard the number of cents.

             (2)  If, apart from this section, a person’s *accumulated HELP debt would be an amount of less than one dollar, the person’s accumulated HELP debt is taken to be zero.

140‑35  Accumulated HELP debt discharges earlier debts

             (1)  The *accumulated HELP debt that a person incurs on 1 June in a financial year discharges, or discharges the unpaid part of:

                     (a)  any *HELP debt that the person incurred during the calendar year immediately preceding that day; and

                     (b)  any accumulated HELP debt that the person incurred on the immediately preceding 1 June.

             (2)  Nothing in subsection (1) affects the application of Division 137, Subdivision 140‑B or section 140‑25.

140‑40  Accumulated HELP debt discharged by death

             (1)  Upon the death of a person who has an *accumulated HELP debt, the accumulated HELP debt is taken to be discharged.

             (2)  To avoid doubt, this section does not affect any *compulsory repayment amounts required to be paid in respect of the *accumulated HELP debt, whether or not those amounts were assessed before the person’s death.

Note:          Accumulated HELP debts are not provable in bankruptcy: see subsection 82(3AB) of the Bankruptcy Act 1966.

Part 4‑2Discharge of indebtedness

Division 148Introduction

148‑1  What this Part is about

A person who owes a debt to the Commonwealth under this Chapter may make voluntary repayments. In some cases these may attract a 5% repayment bonus.

The person is required to make repayments, of amounts based on his or her income, if that income is above a particular amount. The Commissioner of Taxation makes assessments of repayment amounts, which are collected in the same way as amounts of income tax.

Repayment amounts may be reduced by the HECS‑HELP benefit. To receive the benefit, a person must satisfy eligibility requirements and apply for it. The Commissioner determines whether a person is eligible for the benefit, and if so, the amount of the benefit.

148‑5  The HECS‑HELP Benefit Guidelines

                   The *HECS‑HELP benefit is also dealt with in the HECS‑HELP Benefit Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

Note:          The HECS‑HELP Benefit Guidelines are made by the Minister under section 238‑10.

Division 151How is indebtedness voluntarily discharged?

151‑1  Voluntary repayments in respect of debts

             (1)  A person may at any time make a payment in respect of a debt that the person owes to the Commonwealth under this Chapter.

             (2)  The payment must be made to the *Commissioner.

151‑5  Voluntary repayment bonus relating to HELP debts

             (1)  The effect that a payment under section 151‑1 has on a *HELP debt or an *accumulated HELP debt that a person (the debtor) owes to the Commonwealth under this Chapter is the effect specified in subsection (2) or (3) of this section if the amount of the payment is:

                     (a)  $500 or more; or

                     (b)  sufficient to be taken under subsection (2) to pay off the total debt.

Total debt paid off

             (2)  The debtor is taken to pay off the total debt if the payment in respect of the debt is equal to, or exceeds, an amount worked out as follows:

                  

Example:    The total of Andrew’s HELP debts and accumulated HELP debt is $2,500. To pay off his debt to the Commonwealth he only needs to repay $2,380 ($2,500 divided by 1.05 is $2,380, rounding down to the nearest dollar).

Part of debt paid off

             (3)  If the debtor is not taken to pay off the total debt, the outstanding amount of the debt is to be reduced by an amount worked out as follows:

                  

Example:    The total of Helen’s HELP debts and accumulated HELP debt is $4,500. She makes a voluntary repayment of $1,500. With a 5% bonus, the value of her repayment is $1575. The total amount that she owes to the Commonwealth is reduced to $2,925.

Rounding

             (4)  If an amount worked out using the formula in subsection (2) is an amount made up of dollars and cents, round the amount down to the nearest dollar.

             (5)  If an amount worked out using the formula in subsection (3) is an amount made up of dollars and cents, round the amount up to the nearest dollar.

151‑10  Application of voluntary repayments

             (1)  Any money a person pays under this Division to meet the person’s debts to the Commonwealth under this Chapter is to be applied in payment of those debts as the person directs at the time of the payment.

             (2)  If the person has not given any directions, or the directions given do not adequately deal with the matter, any money available is to be applied as follows:

                     (a)  first, in discharge or reduction of any *accumulated HELP debt of the person;

                     (b)  secondly, in discharge or reduction of:

                              (i)  any *HELP debt of the person; or

                             (ii)  if there is more than one such debt, those debts in the order in which they were incurred.

151‑15  Refunding of payments

                   If:

                     (a)  a person pays an amount to the Commonwealth under this Division; and

                     (b)  the amount exceeds the sum of:

                              (i)  the amount required to discharge the total debt that the person owed to the Commonwealth under this Chapter; and

                             (ii)  the total amount of the person’s primary tax debts (within the meaning of Part IIB of the Taxation Administration Act 1953);

the Commonwealth must refund to the person an amount equal to that excess.

Note:          Interest is payable if the Commonwealth is late in paying refunds: see Part IIIA of the Taxation (Interest on Overpayments and Early Payments) Act 1983.

Division 154How is indebtedness compulsorily discharged?

Subdivision 154‑ALiability to repay amounts

154‑1  Liability to repay amounts

             (1)  Subject to section 154‑3, if:

                     (a)  a person’s *repayment income for an *income year exceeds the *minimum repayment income for the income year; and

                     (b)  on 1 June immediately preceding the making of an assessment in respect of the person’s income of that income year, the person had an *accumulated HELP debt;

the person is liable to pay to the Commonwealth, in accordance with this Division, the amount worked out under section 154‑20 in reduction of the person’s *repayable debt.

             (2)  A person is not liable under this section to pay an amount for an *income year if, under section 8 of the Medicare Levy Act 1986:

                     (a)  no *Medicare levy is payable by the person on the person’s *taxable income for the income year; or

                     (b)  the amount of the Medicare levy payable by the person on the person’s taxable income for the income year is reduced.

154‑3  Reduction of liability by HECS‑HELP benefit

                   If the *Commissioner has determined, in respect of a person, an amount of *HECS‑HELP benefit under section 157‑20 for an *income year, the amount that the person is liable to pay under section 154‑1 for that year is reduced by the amount of the benefit.

Note 1:       The calculation of a person’s compulsory repayment amount under section 154‑1 remains unaffected. A person’s accumulated HELP debt is reduced by compulsory repayment amounts under Division 140. The HECS‑HELP benefit reduces a person’s liability that arises under section 154‑1, so that the amount that the person will actually pay (if any) will be less than the compulsory repayment amount calculated.

Note 2:       If a determination is reviewed, a reference to the determination includes a reference to the decision on review, see section 157‑30.

154‑5  Repayment income

             (1)  A person’s repayment income for an *income year is an amount equal to the sum of:

                     (a)  the person’s *taxable income for the income year; and

                     (b)  the person’s total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for the income year; and

                     (c)  if the person:

                              (i)  is an employee (within the meaning of the Fringe Benefits Tax Assessment Act 1986); and

                             (ii)  has a reportable fringe benefits total (within the meaning of that Act) for the income year;

                            the reportable fringe benefits total for the income year; and

                     (d)  the person’s *exempt foreign income for the income year; and

                     (e)  the person’s reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for the income year.

             (4)  The person’s exempt foreign income is the total amount (if any) by which the person’s income that is exempt from tax under section 23AF or 23AG of the Income Tax Assessment Act 1936 exceeds the total amount of losses and outgoings that the person incurs in deriving that exempt income.

             (5)  For the purposes of subsection (4), disregard any capital losses and outgoings.

154‑10  Minimum repayment income

                   The minimum repayment income for an *income year is:

                     (a)  for the 2005‑06 income year—$36,184; or

                     (b)  for a later income year—that amount as indexed under section 154‑25.

154‑15  Repayable debt for an income year

             (1)  A person’s repayable debt for an *income year is:

                     (a)  the person’s *accumulated HELP debt referred to in paragraph 154‑1(1)(b) in relation to that income year; or

                     (b)  if one or more amounts:

                              (i)  have been paid in reduction of that debt; or

                             (ii)  have been assessed under section 154‑35 to be payable in respect of that debt;

                            the amount (if any) remaining after deducting from that debt the amount, or sum of the amounts, so paid or assessed to be payable.

             (2)  A reference in paragraph (1)(b) to an amount assessed to be payable is, if the amount has been increased or reduced by an amendment of the relevant assessment, a reference to the increased amount or the reduced amount.

Subdivision 154‑BAmounts payable to the Commonwealth

154‑20  Amounts payable to the Commonwealth

                   The amount that a person is liable to pay under section 154‑1, in respect of an *income year, is an amount equal to so much of the person’s *repayable debt for the income year as does not exceed the percentage of the person’s *repayment income that is applicable under the following table:

 

Applicable percentages

Item

If the person’s repayment income is:

The percentage applicable is:

1

More than the *minimum repayment income, but less than:

(a) for the 2005‑06 *income year—$40,307; or

(b) for a later income year—that amount indexed under section 154‑25.

4%

2

More than the amount under item 1, but less than:

(a) for the 2005‑06 *income year—$44,428; or

(b) for a later income year—that amount indexed under section 154‑25.

4.5%

3

More than the amount under item 2, but less than:

(a) for the 2005‑06 *income year—$46,763; or

(b) for a later income year—that amount indexed under section 154‑25.

5%

4

More than the amount under item 3, but less than:

(a) for the 2005‑06 *income year—$50,267; or

(b) for a later income year—that amount indexed under section 154‑25.

5.5%

5

More than the amount under item 4, but less than:

(a) for the 2005‑06 *income year—$54,440; or

(b) for a later income year—that amount indexed under section 154‑25.

6%

6

More than the amount under item 5, but less than:

(a) for the 2005‑06 *income year—$57,305; or

(b) for a later income year—that amount indexed under section 154‑25.

6.5%

7

More than the amount under item 6, but less than:

(a) for the 2005‑06 *income year—$63,063; or

(b) for a later income year—that amount indexed under section 154‑25.

7%

8

More than the amount under item 7, but less than:

(a) for the 2005‑06 *income year—$67,200; or

(b) for a later income year—that amount indexed under section 154‑25.

7.5%

9

More than the amount under item 8.

8%

154‑25  Indexation

             (1)  The following amounts for the 2006‑07 *income year, or a later income year:

                     (a)  the *minimum repayment income;

                     (b)  the amounts referred to in paragraph (a) of the second column of items 1 to 8 of the table in section 154‑20;

are indexed by multiplying the corresponding amounts for the 2005‑06 income year by the amount worked out using the formula:

             (2)  AWE, for an *income year, is the number of dollars in the sum of:

                     (a)  the average weekly earnings for all employees (total earnings, seasonally adjusted) for the *reference period in the *quarter ending on 31 December immediately before the income year, as published by the *Australian Statistician; and

                     (b)  the average weekly earnings for all employees for the reference period in the quarter ending on 30 June that is immediately before the quarter referred to in paragraph (a), as published by the Australian Statistician.

             (3)  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.

             (4)  If an amount worked out under this section is an amount made up of dollars and cents, round the amount down to the nearest dollar.

154‑30  Publishing indexed amounts

                   The Minister must cause to be published in the Gazette, before the start of the 2006‑07 *income year or a later income year:

                     (a)  the *minimum repayment income; and

                     (b)  the amounts referred to in paragraph (b) of the second column of items 1 to 8 of the table in section 154‑20;

for that income year.

Subdivision 154‑CAssessments

154‑35  Commissioner may make assessments

                   The *Commissioner may, from any information in the Commissioner’s possession, whether from a *return or otherwise, make an assessment of:

                     (a)  the person’s *accumulated HELP debt on 1 June immediately before the making of the assessment; and

                     (b)  the amount required to be paid in respect of that debt under section 154‑1.

Note:          The amount that the person will actually pay (if any) will be less than the amount mentioned in paragraph (b) if the person receives the HECS‑HELP benefit.

154‑40  Notification of notices of assessment of tax

             (1)  If:

                     (a)  the *Commissioner is required to serve on a person a notice of assessment in respect of the person’s income of an *income year under section 174 of the Income Tax Assessment Act 1936; and

                     (b)  the Commissioner has made, in respect of the person, an assessment under section 154‑35 of this Act of the amounts referred to in that section; and

                     (c)  notice of the assessment under that section has not been served on the person;

notice of the assessment under that section may be served by specifying the amounts concerned in the notice referred to in paragraph (a).

             (2)  If the *Commissioner has determined, in respect of the person, an amount of *HECS‑HELP benefit under section 157‑20 for the *income year, the notice of assessment for that year may also refer to the amount of the benefit.

Note:          If a determination is reviewed, a reference to the determination includes a reference to the decision on review, see section 157‑30.

154‑45  Commissioner may defer making assessments

             (1)  A person may apply in the *approved form to the *Commissioner for deferral of the making of an assessment in respect of the person under section 154‑35.

             (2)  The application must specify:

                     (a)  the *income year for which the deferral is being sought; and

                     (b)  the reasons for seeking the deferral.

             (3)  The *income year specified in the application must be:

                     (a)  the income year in which the person makes the application; or

                     (b)  the immediately preceding income year; or

                     (c)  the immediately succeeding income year.

             (4)  The *Commissioner may, on application by a person under this section, defer making an assessment in respect of the person under section 154‑35 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 making the assessment.

             (5)  The *Commissioner may defer making the assessment for any period that he or she thinks appropriate.

             (6)  The *Commissioner must, as soon as practicable after an application is made under this section:

                     (a)  consider the matter to which the application relates; and

                     (b)  notify the applicant of the Commissioner’s decision on the application.

Note:          Deferrals of making assessments, or refusals of applications, are reviewable under Part 5‑7.

154‑50  Commissioner may amend assessments

             (1)  A person may apply in the *approved form to the *Commissioner for an amendment of an assessment made in respect of the person under section 154‑35 so that:

                     (a)  the amount payable under the assessment is reduced; or

                     (b)  no amount is payable under the assessment.

             (2)  The application:

                     (a)  must be made within 2 years after the day on which the *Commissioner gives notice of the assessment to the person; or

                     (b)  must specify the reasons justifying a later application.

             (3)  The *Commissioner may, on application by a person under this section, amend an assessment made in respect of the person under section 154‑35 so that:

                     (a)  the amount payable under the assessment is reduced; or

                     (b)  no amount is payable under the assessment;

if the Commissioner is of the opinion that:

                     (c)  payment of the assessed amount has caused or would cause serious hardship to the person; or

                     (d)  there are other special reasons that make it fair and reasonable to make the amendment.

             (4)  The *Commissioner must, as soon as practicable after an application is made under this section:

                     (a)  consider the matter to which the application relates; and

                     (b)  notify the applicant of the Commissioner’s decision on the application.

Note:          Amendments of assessments, or refusals of applications, are reviewable under Part 5‑7.

154‑55  Higher education providers etc. to provide information to Commissioner

             (1)  A higher education provider must give to the *Commissioner, if asked by the Commissioner to do so, any information:

                     (a)  that is in its possession relating to students who have applied for one or more of the following:

                              (i)  *HECS‑HELP assistance or *FEE‑HELP assistance for a unit of study;

                             (ii)  *OS‑HELP assistance in relation to a period of 6 months;

                            (iii)  *SA‑HELP assistance for a *student services and amenities fee for a period; and

                     (b)  that the Commissioner reasonably requires for the purposes of this Chapter.

             (2)  *Open Universities Australia must give to the *Commissioner, if asked by the Commissioner to do so, any information:

                     (a)  that is in its possession relating to students who have applied for *FEE‑HELP assistance for a unit of study; and

                     (b)  that the Commissioner reasonably requires for the purposes of this Chapter.

Subdivision 154‑DApplication of tax legislation

154‑60  Returns, assessments, collection and recovery

                   Subject to this Part:

                     (a)  Part IV of the Income Tax Assessment Act 1936; and

                    (aa)  Division 5 of the Income Tax Assessment Act 1997; and

                     (b)  Part 4‑15 in Schedule 1 to the Taxation Administration Act 1953;

apply, so far as they are capable of application, in relation to a *compulsory repayment amount of a person as if it were *income tax assessed to be payable by a taxpayer by an assessment made under Part IV of the Income Tax Assessment Act 1936.

154‑65  Charges and civil penalties for failing to meet obligations

             (1)  Part 4‑25 in Schedule 1 to the Taxation Administration Act 1953 has effect as if:

                     (a)  any *compulsory repayment amount of a person were *income tax payable by the person in respect of the *income year in respect of which the assessment of that debt was made; and

                     (b)  this Chapter, and Part 5‑5, were *income tax laws.

             (2)  Subsection (1) does not have the effect of making a person liable to a penalty for any act or omission that happened before the commencement of this subsection.

154‑70  Pay as you go (PAYG) withholding

                   Part 2‑5 (other than section 12‑55 and Subdivisions 12‑E, 12‑F and 12‑G) in Schedule 1 to the Taxation Administration Act 1953 applies, so far as it is capable of application, in relation to the collection of amounts of a *compulsory repayment amount of a person as if the compulsory repayment amount were *income tax.

154‑80  Pay as you go (PAYG) instalments

                   Division 45 in Schedule 1 to the Taxation Administration Act 1953 applies, so far as it is capable of application, in relation to the collection of a *compulsory repayment amount of a person as if the compulsory repayment amount were *income tax.

154‑85  Reduction of compulsory repayment amount by HECS‑HELP benefit

             (1)  This section applies if the *Commissioner has determined, in respect of a person, an amount of *HECS‑HELP benefit under section 157‑20 for an *income year.

             (2)  For the purposes of this Subdivision, a *compulsory repayment amount of a person in respect of an *income year is to be reduced by the amount of *HECS‑HELP benefit determined by the *Commissioner in respect of the person for that year.

Note:          If a determination is reviewed, a reference to the determination includes a reference to the decision on review, see section 157‑30.

Division 157HECS‑HELP benefit

Subdivision 157‑AWho is eligible for the HECS‑HELP benefit?

157‑1  Application for the HECS‑HELP benefit

                   A person may apply to the *Commissioner in the *approved form for the *HECS‑HELP benefit in respect of an *income year if:

                     (a)  the HECS‑HELP Benefit Guidelines set out eligibility requirements for the HECS‑HELP benefit; and

                     (b)  the person satisfies those eligibility requirements.

157‑10  Providing application to Commissioner

                   An application must be made within the time specified in the HECS‑HELP Benefit Guidelines.

Subdivision 157‑BWhat is the amount of the HECS‑HELP benefit?

157‑15  Amount of HECS‑HELP benefit

             (1)  The amount of the *HECS‑HELP benefit for an *income year is the amount specified in, or worked out in accordance with, the HECS‑HELP Benefit Guidelines.

             (2)  If an amount is required to be paid under section 154‑1 for an *income year, the amount of the *HECS‑HELP benefit for that year must not be more than the amount required to be paid for that year.

Subdivision 157‑CDetermination of applications

157‑20  Commissioner must determine application

             (1)  If a person applies for the *HECS‑HELP benefit for an *income year, the *Commissioner must determine:

                     (a)  whether the person is eligible for the benefit for the year; and

                     (b)  if the person is eligible—the amount of the benefit, worked out in accordance with the HECS‑HELP Benefit Guidelines.

Note:          A determination is reviewable under Part 5‑7.

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

157‑25  Notifying applicant of determination

                   The *Commissioner must notify the applicant, in writing, of his or her determination. The notice must be given within the time specified in the HECS‑HELP Benefit Guidelines.

Note:          Notification may also be given to a person by referring to the amount of HECS‑HELP benefit in the person’s notice of assessment, see subsection 154‑40(2).

157‑30  Review of determinations

                   If a determination by the *Commissioner under section 157‑20 is reviewed under Part 5‑7, a reference in this Part (other than this Division) to the determination includes a reference to the decision on review.

Chapter 5Administration

  

Division 159Introduction

159‑1  What this Chapter is about

This Chapter deals with the following administrative matters:

•      payments made by the Commonwealth under this Act (see Part 5‑1);

•      administrative requirements that are imposed on higher education providers (see Part 5‑2);

•      electronic communication between higher education providers and students (see Part 5‑3);

•      management of information (see Part 5‑4);

•      tax file numbers of students (see Part 5‑5);

•      indexation of certain amounts (see Part 5‑6);

•      reconsideration and administrative review of certain decisions (see Part 5‑7).

159‑5  The Administration Guidelines

                   Administrative matters are also dealt with in the Administration Guidelines. The provisions of this Chapter may indicate when a particular matter is or may be dealt with in these Guidelines.

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

Part 5‑1Payments by the Commonwealth

Division 164Payments by the Commonwealth

164‑1  What this Part is about

This Part contains general provisions relating to how the Commonwealth makes payments under this Act.

164‑5  Time and manner of payments

             (1)  Amounts payable by the Commonwealth to a higher education provider or other body under this Act are to be paid in such a way, including payment in instalments, as the Minister determines.

             (2)  Payments of amounts payable by the Commonwealth to a higher education provider or other body under this Act are to be made at such times as the *Secretary determines.

164‑10  Advances

             (1)  The *Secretary may determine that an advance is to be made to a higher education provider or other body on account of an amount that is expected to become payable under a provision of this Act to the provider or other body.

          (1A)  If the advance exceeds the amount that becomes payable, an amount equal to the excess may be:

                     (a)  deducted from any amount that is payable, or to be paid, to the provider or body under this Act; or

                     (b)  recovered by the Commonwealth from the provider or body as a debt due to the Commonwealth.

          (1B)  If the provider or other body uses the advance for a purpose other than that for which it was given, an amount equal to the advance may be:

                     (a)  deducted from any amount that is payable, or to be paid, to the provider or body under this Act; or

                     (b)  recovered by the Commonwealth from the provider or body as a debt due to the Commonwealth.

             (2)  The conditions that would be applicable to a payment of the amount on account of which the advance is made are applicable to the advance.

             (3)  This section does not affect the Minister’s power to determine under section 33‑40 that an advance is payable to a higher education provider.

164‑15  Overpayments of Commonwealth grants

                   An overpayment of an amount made to a higher education provider or other body under Part 2‑2, 2‑3 or 2‑4 may, in whole or part, be:

                     (a)  deducted from any amount that is payable, or to be paid, to that provider or body under Part 2‑2, 2‑3 or 2‑4; or

                     (b)  recovered by the Commonwealth from that provider or body as a debt due to the Commonwealth.

164‑17  Overpayments of Commonwealth scholarships to students

                   An overpayment of an amount paid, or purportedly paid, to a person by way of a *Commonwealth scholarship under section 46‑13 may, in whole or part, be:

                     (a)  deducted from any amount that is payable, or to be paid, to that person under that section; or

                     (b)  recovered by the Commonwealth from that person as a debt due to the Commonwealth.

164‑18  Repayment of Commonwealth scholarships paid to students—breach of condition

             (1)  This section applies if:

                     (a)  an amount is paid to a person by way of a *Commonwealth scholarship under section 46‑13; and

                     (b)  the person breaches a condition of the Commonwealth scholarship.

             (2)  The amount may, in whole or part, be:

                     (a)  deducted from any amount that is payable, or to be paid, to that person under that section; or

                     (b)  recovered by the Commonwealth from that person as a debt due to the Commonwealth.

164‑20  Rounding of amounts

                   If an amount payable by the Commonwealth under this Act is an amount made up of dollars and cents, round the amount down to the nearest dollar.

Part 5‑2Administrative requirements on higher education providers

Division 169Administrative requirements on higher education providers

169‑1  What this Part is about

This Part imposes a number of administrative requirements on higher education providers.

Note:          It is a quality and accountability requirement that a higher education provider comply with this Act: see section 19‑65.

169‑5  Notices

Who gets a notice?

             (1)  A higher education provider must give such notices as are required by the Administration Guidelines to a person:

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

                     (b)  who:

                              (i)  is seeking Commonwealth assistance under this Act for the unit or for a *student services and amenities fee imposed on the person by the provider; or

                             (ii)  is a *Commonwealth supported student for the unit.

Contents of notice

             (2)  A notice must contain the information set out in the Administration Guidelines as information that must be provided in such a notice.

Date by which notice to be given

             (3)  A notice must be given within the period set out in the Administration Guidelines.

Purpose and effect of notice

             (4)  A notice under this section is given for the purpose only of providing information to a person. Any liability or entitlement of a person under this Act is not affected by:

                     (a)  the failure of a higher education provider to give a notice under this section; or

                     (b)  the failure of a higher education provider to give such a notice by the date required under the Administration Guidelines; or

                     (c)  the notice containing an incorrect statement.

169‑10  Correction of notices

Higher education provider to correct notice

             (1)  If, after giving a person a notice under section 169‑5, a higher education provider is satisfied that a material particular in the notice was not, or has ceased to be, correct, the provider must give a further written notice to the person setting out the correct particular.

Person may request correction of notice

             (2)  A person who receives a notice from a higher education provider under section 169‑5 may give to the provider a written request for the notice to be corrected in respect of a material particular if the person considers that the notice was not, or has ceased to be, correct in that particular.

             (3)  The request must be given to an *appropriate officer of the provider either:

                     (a)  within 14 days after the day the notice was given; or

                     (b)  within such further period as the provider allows for the giving of the request.

             (4)  The request must:

                     (a)  specify the particular in the notice that the person considers is incorrect; and

                     (b)  specify the reasons the person has for considering that the particular is incorrect.

             (5)  The making of the request does not affect any liability or entitlement of the person under this Act.

Higher education provider to process request

             (6)  If a higher education provider receives a request under this section the provider must, as soon as practicable:

                     (a)  determine the matter to which the request relates; and

                     (b)  notify the person in writing of the provider’s determination; and

                     (c)  if the provider determines that a material particular in the notice was not, or has ceased to be, correct—give a further notice under subsection (1).

169‑15  Charging student contribution amounts and tuition fees

             (1)  A higher education provider:

                     (a)  must require any student who:

                              (i)  is a *Commonwealth supported student in relation to a unit of study; and

                             (ii)  is enrolling in the unit with the provider; and

                            (iii)  is not an *exempt student for the unit;

                            to pay to the provider the student’s *student contribution amount for the unit; and

                     (b)  must not require the student to pay any of his or her *tuition fee or any other *fee for the unit.

          (1A)  Despite subsection (1), a higher education provider must not require a student who is enrolling in a unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements to pay to the provider the student’s *student contribution amount for the unit.

             (2)  A higher education provider:

                     (a)  must require any *domestic student who:

                              (i)  is not a *Commonwealth supported student in relation to a unit of study; and

                             (ii)  is enrolling in the unit with the provider; and

                            (iii)  is not an *exempt student for the unit;

                            to pay to the provider the student’s *tuition fee for the unit; and

                     (b)  must not require any domestic student to pay any other *fee, or any of his or her *student contribution amount, for the unit.

          (2A)  Despite subsection (2), a higher education provider must not require a domestic student who is enrolling in a unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements to pay to the provider the student’s *tuition fee for the unit.

             (3)  However (unless subsection (4) applies), a higher education provider must repay to a person any payment of his or her *student contribution amount or *tuition fee for a unit of study that the person made on or before the *census date for the unit if the person is no longer enrolled in the unit at the end of the census date.

Note:          Other provisions about student contribution amounts and tuition fees are set out in Subdivision 19‑F and Parts 2‑2 and 3‑2.

             (4)  Subsection (3) does not apply if:

                     (a)  the student is no longer enrolled in the unit at the end of the census date because the provider has ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and

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

                     (c)  the student chose the option designated under those requirements as course assurance in relation to the unit.

169‑20  Exempt students

             (1)  The Minister may determine in writing that all students, or students of a specified kind, are exempt from payment of their *student contribution amounts and *tuition fees for:

                     (a)  any units of study undertaken as part of a specified *course of study; or

                     (b)  any units of study undertaken as part of a course of study of a specified kind.

A student, or a student of such a kind, (as the case requires) is an exempt student for those units.

             (2)  The Administration Guidelines may provide that:

                     (a)  in all circumstances; or

                     (b)  in the circumstances specified in those guidelines;

all students are exempt from payment of their *student contribution amounts and *tuition fees for any units of study that wholly consist of *work experience in industry. A student is, or is in those specified circumstances, (as the case requires) an exempt student for such units.

             (3)  A student is an exempt student for a unit of study undertaken with a higher education provider as part of a *course of study with that provider if:

                     (a)  the provider has awarded the student an exemption scholarship for the course; and

                     (b)  the provider awarded the scholarship in accordance with any requirements specified in the Administration Guidelines.

          (3A)  A student is an exempt student for a unit of study undertaken with one higher education provider as part of a *course of study with another (the home provider) if:

                     (a)  the home provider has awarded the student an exemption scholarship for the course; and

                     (b)  the home provider awarded the scholarship in accordance with any requirements specified in the Administration Guidelines; and

                     (c)  the student must undertake the unit, because it is required to complete the course.

          (3B)  A student is an exempt student for a unit of study undertaken with one higher education provider (the host provider) as part of a *course of study undertaken with another if:

                     (a)  the host provider has awarded the student an exemption for the unit; and

                     (b)  the host provider awarded the scholarship in accordance with any requirements specified in the Administration Guidelines.

             (4)  Without limiting the matters that may be specified in the Administration Guidelines for the purposes of paragraph (3)(b), those matters may include one or both of the following:

                     (a)  the maximum number of exemption scholarships that a particular higher education provider may award in respect of a year;

                     (b)  which students are eligible to receive exemption scholarships.

169‑25  Determining census dates and EFTSL values

             (1)  A higher education provider must, for each unit of study it provides or proposes to provide during a period ascertained in accordance with the Administration Guidelines, determine, for that period:

                     (a)  a particular date to be the *census date for the unit; and

                     (b)  the *EFTSL value for the unit.

Note:          If a higher education provider provides the same unit over different periods, the unit is taken to be a different unit of study in respect of each period. Therefore the provider will have to determine a separate census date, and a separate EFTSL value, in respect of each period.

             (2)  A date determined under paragraph (1)(a) must be determined in accordance with the Administration Guidelines.

             (3)  The provider must publish:

                     (a)  the *census date for the unit by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines; and

                     (b)  the *EFTSL value for the unit by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines.

Variations

             (4)  The provider must not vary the *census date for the unit, or the *EFTSL value for the unit, after publication under subsection (3), unless the provider:

                     (a)  does so:

                              (i)  before the date ascertained in accordance with the Administration Guidelines; and

                             (ii)  in circumstances specified in the Administration Guidelines; or

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

             (5)  If paragraph (4)(a) applies, the provider must publish the variation by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines.

             (6)  If paragraph (4)(b) applies, the provider must publish the variation by the date, and in the manner, specified by the Minister in the approval.

169‑27  Meaning of EFTSL

             (1)  An EFTSL is an equivalent full‑time student load for a year. It is a measure, in respect of a *course of study, of the study load for a year of a student undertaking that course of study on a full‑time basis.

             (2)  A particular amount of EFTSL is an amount of study, undertaken with a higher education provider as part of a *course of study, represented by units of study with *EFTSL values the sum of which equals that amount.

169‑28  Meaning of EFTSL value

             (1)  The EFTSL value of a unit of study is the value that the higher education provider with which the unit may be undertaken determines in writing to be the EFTSL value of the unit, expressed as a fraction of one *EFTSL.

             (2)  If the unit can form part of more than one *course of study, the provider may determine an EFTSL value of the unit for each such course.

             (3)  If a unit of study is subject to separate determinations in relation to different *courses of study, a reference in this Act to the EFTSL value of the unit is, when the unit forms part of such a course, a reference to the EFTSL value of the unit determined under subsection (2) for the course.

             (4)  Determinations under this section must be in accordance with any requirements set out in the Administration Guidelines.

169‑30  Communications with the Commonwealth concerning students etc.

             (1)  In communications under, or for the purposes of, this Act between the Commonwealth and a higher education provider concerning a person who:

                     (a)  is enrolled, or seeking to enrol, in a unit of study with the provider; and

                     (b)  has indicated that the person is seeking Commonwealth assistance under this Act for the unit, or is a *Commonwealth supported student for the unit;

the provider must use any identifier for that person that the *Secretary has indicated must be used in such communications.

             (2)  In communications under, or for the purposes of, this Act between the Commonwealth and a higher education provider concerning a person who:

                     (a)  has had a *student services and amenities fee imposed on him or her by the provider; and

                     (b)  has indicated that the person is seeking *SA‑HELP assistance for the fee;

the provider must use any identifier for that person that the *Secretary has indicated must be used in such communications.

169‑35  6 week cut off for corrections affecting entitlement to Commonwealth assistance

             (1)  If:

                     (a)  more than 6 weeks after the *census date for a unit of study undertaken with a higher education provider, a person gives the provider information in writing (the correct information) that establishes that information contained in or accompanying the person’s *request for Commonwealth assistance was incorrect; and

                     (b)  the correct information establishes that the person was entitled to a particular kind of Commonwealth assistance other than *SA‑HELP assistance;

this Act applies as if the person had never been entitled to that particular Commonwealth assistance.

             (2)  If:

                     (a)  more than 6 weeks after the day on which a *student services and amenities fee imposed on a person by a higher education provider was payable, the person gives the provider information in writing (the correct information) that establishes that information contained in or accompanying a *request for Commonwealth assistance made by the person in relation to the fee was incorrect; and

                     (b)  the correct information establishes that the person was entitled to *SA‑HELP assistance for the fee;

this Act applies as if the person had never been entitled to the SA‑HELP assistance.

Part 5‑3Electronic communications

Division 174Electronic communications

174‑1  What this Part is about

Certain documents that this Act requires or permits to be given between students and higher education providers may be transmitted electronically.

174‑5  Guidelines may deal with electronic communications

             (1)  The Administration Guidelines may make provision for or in relation to requiring or permitting information or documents to be given by students to higher education providers, or by higher education providers to students, in accordance with particular information technology requirements:

                     (a)  on a particular kind of data storage device; or

                     (b)  by means of a particular kind of electronic communication.

             (2)  The Administration Guidelines may make provision for or in relation to requiring, in relation to an electronic communication from a student to a higher education provider:

                     (a)  that the communication contain an electronic signature (however described); or

                     (b)  that the communication contain a unique identification in an electronic form; or

                     (c)  that a particular method be used to identify the originator of the communication and to indicate the originator’s approval of the information communicated.

             (3)  The reference in subsection (1) to giving information includes a reference to anything that is giving information for the purposes of section 9 of the Electronic Transactions Act 1999.

             (4)  In this section:

data storage device has the same meaning as in the Electronic Transactions Act 1999.

electronic communication has the same meaning as in the Electronic Transactions Act 1999.

information has the same meaning as in the Electronic Transactions Act 1999.

information technology requirements has the same meaning as in the Electronic Transactions Act 1999.

Part 5‑4Management of information

Division 179Protection of personal information

179‑1  What this Division is about

An officer who discloses, copies or records personal information otherwise than in the course of official employment, or causes unauthorised access to or modification of personal information, commits an offence.

179‑5  Meaning of personal information

                   Personal information is:

                     (a)  information or an opinion about an identified individual, or an individual who is reasonably identifiable:

                              (i)  whether the information or opinion is true or not; and

                             (ii)  whether the information or opinion is recorded in a material form or not; and

                     (b)  obtained or created by an *officer for the purposes of Chapter 2 or Chapters 3 and 4.

179‑10  Use of personal information

                   An *officer commits an offence if:

                     (a)  the officer either:

                              (i)  discloses information; or

                             (ii)  makes a copy or other record of information; and

                     (b)  the information is *personal information; and

                     (c)  the information was acquired by the officer in the course of the officer’s *official employment; and

                     (d)  the disclosure did not occur, or the copy or record was not made, in the course of that official employment.

Penalty:  Imprisonment for 2 years.

179‑15  Meanings of officer etc. and official employment

Meaning of officer

             (1)  A person is an officer if:

                     (a)  the person is or was a *Commonwealth officer (see subsection (2)); or

                     (b)  the person is or was an *officer of a higher education provider (see subsection (3)); or

                     (c)  the person is or was an *officer of Open Universities Australia (see subsection (3A)); or

                     (d)  the person is or was an *officer of a Tertiary Admission Centre (see subsection (3B)).

             (2)  A Commonwealth officer is a person who holds office under, or is employed by, the Commonwealth, and includes the following:

                     (a)  a person appointed or engaged under the Public Service Act 1999;

                     (b)  a person permanently or temporarily employed:

                              (i)  in the Public Service of a Territory (other than the Northern Territory); or

                             (ii)  in, or in connection with, the Defence Force; or

                            (iii)  in the Service of any authority or body constituted by or under a law of the Commonwealth or of a Territory (other than the Northern Territory);

                     (c)  the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);

                     (d)  a person who, although not holding office under, or employed by:

                              (i)  the Commonwealth; or

                             (ii)  a Territory (other than the Northern Territory); or

                            (iii)  any authority or body constituted by or under a law of the Commonwealth or of a Territory (other than the Northern Territory);

                            performs services for or on behalf of the Commonwealth, a Territory (other than the Northern Territory), or such an authority or body;

                     (e)  a person who is an employee of the Australian Postal Corporation;

                      (f)  a person who performs services for or on behalf of the Australian Postal Corporation;

                     (g)  an employee of a person who performs services for or on behalf of the Australian Postal Corporation.

             (3)  A person is an officer of a higher education provider if the person is:

                     (a)  an officer or employee of the provider; or

                     (b)  a person who, although not an officer or employee of the provider, performs services for or on behalf of the provider.

          (3A)  A person is an officer of Open Universities Australia if the person is:

                     (a)  an officer or employee of *Open Universities Australia; or

                     (b)  a person who, although not an officer or employee of Open Universities Australia, performs services for or on behalf of Open Universities Australia.

          (3B)  A person is an officer of a Tertiary Admission Centre if the person is:

                     (a)  an officer or employee of the *Tertiary Admission Centre; or

                     (b)  a person who, although not an officer or employee of the Tertiary Admission Centre, performs services for or on behalf of the Tertiary Admission Centre.

Meaning of official employment

             (4)  Official employment of an *officer is:

                     (a)  for a *Commonwealth officer—the performance of duties or functions, or the exercise of powers, under, or for the purposes of, this Act; or

                     (b)  for an *officer of a higher education provider—service as such an officer; or

                     (c)  for an *officer of Open Universities Australia—service as such an officer; or

                     (d)  for an *officer of a Tertiary Admission Centre—service as such an officer.

179‑20  When information is disclosed in the course of official employment

                   Without limiting the matters that are disclosures that occur in the course of an *officer’s *official employment for the purposes of paragraph 179‑10(d), the following disclosures are taken to be disclosures that occur in the course of an officer’s official employment:

                     (a)  disclosure by a *Commonwealth officer of *personal information to another Commonwealth officer to assist that other officer in the other officer’s official employment;

                     (b)  disclosure by an officer of personal information to the Administrative Appeals Tribunal in connection with a *reviewable decision;

                     (c)  disclosure by a Commonwealth officer of personal information to an *officer of a higher education provider to assist the provider’s officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act;

                    (ca)  disclosure by a Commonwealth officer of personal information to an *officer of Open Universities Australia to assist *Open Universities Australia in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act;

                   (cb)  disclosure by a Commonwealth officer of personal information to an *officer of a Tertiary Admission Centre to assist the officer of the Tertiary Admission Centre in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act;

                     (d)  disclosure by an officer of a higher education provider of personal information to a Commonwealth officer to assist the Commonwealth officer in the Commonwealth officer’s official employment;

                     (e)  disclosure by an officer of Open Universities Australia of personal information to a Commonwealth officer to assist the Commonwealth officer in the Commonwealth officer’s official employment;

                    (ea)  disclosure by an officer of a Tertiary Admission Centre of personal information to a Commonwealth officer to assist the Commonwealth officer in the Commonwealth officer’s official employment;

                      (f)  disclosure by an officer of Open Universities Australia of personal information to an officer of a higher education provider to assist the provider’s officer in performing duties or functions or in exercising powers, under, or for the purposes of, this Act;

                     (g)  disclosure by an officer of a higher education provider of personal information to an officer of Open Universities Australia to assist the officer of Open Universities Australia in performing duties or functions or in exercising powers, under, or for the purposes of, this Act;

                     (h)  disclosure by an officer of a higher education provider of personal information to an officer of a Tertiary Admission Centre to assist the officer of the Tertiary Admission Centre in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act;

                      (i)  disclosure by an officer of a Tertiary Admission Centre of personal information to an officer of a higher education provider to assist the provider’s officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act.

179‑25  Commissioner may disclose information

             (1)  Despite anything in an Act of which the *Commissioner has the general administration, the Commissioner, or a person authorised by the Commissioner, may communicate *personal information to an *officer for use by that officer:

                     (a)  in the case of a *Commonwealth officer—in the course of the officer’s *official employment; or

                     (b)  in the case of an *officer of a higher education provider—to assist the officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act; or

                     (c)  in the case of an *officer of Open Universities Australia—to assist the officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act; or

                     (d)  in the case of an *officer of a Tertiary Admission Centre—to assist the officer in performing duties or functions, or in exercising powers, under, or for the purposes of, this Act.

             (2)  Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against an Act of which the *Commissioner has the general administration, the defendant does not bear an evidential burden in relation to whether this section applies to a communication of *personal information.

179‑30  Oath or affirmation to protect information

             (1)  An *officer must, if and when required by the *Secretary or the *Commissioner to do so, make an oath or affirmation to protect information in accordance with this Division.

             (2)  The *Secretary may determine, in writing:

                     (a)  the form of the oath or affirmation that the Secretary will require; and

                     (b)  the manner in which the oath or affirmation must be made.

             (3)  The *Commissioner may determine, in writing:

                     (a)  the form of the oath or affirmation that the Commissioner will require; and

                     (b)  the manner in which the oath or affirmation must be made.

179‑35  Unauthorised access to, or modification of, personal information

             (1)  A person commits an offence if:

                     (a)  the person causes any unauthorised access to, or modification of, *personal information that is:

                              (i)  held in a computer; and

                             (ii)  to which access is restricted by an access control system associated with a function of the computer; and

                     (b)  the person intends to cause the access or modification; and

                     (c)  the person knows that the access or modification is unauthorised; and

                     (d)  one or more of the following apply:

                              (i)  the personal information is held in a computer of a higher education provider;

                             (ii)  the personal information is held on behalf of a provider;

                            (iii)  the personal information is held in a computer of *Open Universities Australia;

                            (iv)  the personal information is held on behalf of Open Universities Australia;

                             (v)  the personal information is held on a computer of a *Tertiary Admission Centre;

                            (vi)  the personal information is held on behalf of a Tertiary Admission Centre.

Penalty:  2 years imprisonment.

             (2)  Absolute liability applies to paragraph (1)(d).

179‑40  Officer may use information

                   An *officer may use *personal information in the course of the officer’s *official employment.

179‑45  This Division does not limit disclosure or use of information

                   This Division does not limit the disclosure or use of *personal information.

Note:          The disclosure or use of personal information may also be authorised in other circumstances. For example, see Division 180 and the Privacy Act 1988.

Division 180Disclosure or use of Higher Education Support Act information

180‑1  What this Division is about

This Division authorises the disclosure and use of Higher Education Support Act information for certain purposes.

180‑5  Meaning of Higher Education Support Act information

Higher Education Support Act information means:

                     (a)  *personal information; and

                     (b)  *VET personal information; and

                     (c)  information obtained or created by a *Commonwealth officer as a result of a survey of the kind referred to in section 180‑30; and

                     (d)  any other information obtained or created by a Commonwealth officer for the purposes of this Act.

180‑10  Disclosure and use by Commonwealth officers

             (1)  A *Commonwealth officer may disclose *Higher Education Support Act information to another Commonwealth officer to assist that other officer in the other officer’s *official employment (within the meaning of section 179‑15).

             (2)  A *Commonwealth officer may use *Higher Education Support Act information in the course of the officer’s *official employment (within the meaning of section 179‑15).

180‑15  Disclosure of information to TEQSA

                   The *Secretary may disclose *Higher Education Support Act information to:

                     (a)  *TEQSA; or

                     (b)  a member of the staff of TEQSA (within the meaning of the *TEQSA Act);

for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, that Act.

180‑20  Disclosure of information to the National VET Regulator

                   The *Secretary may disclose *Higher Education Support Act information to:

                     (a)  the *National VET Regulator; or

                     (b)  a member of the staff of the Regulator (within the meaning of the National Vocational Education and Training Regulator Act 2011);

for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, that Act.

180‑25  Disclosure of information to other bodies

Disclosure

             (1)  The *Secretary may disclose *Higher Education Support Act information to a person referred to in subsection (3) for any of the following purposes (a permitted purpose):

                     (a)  improving the provision of higher education or vocational education and training;

                     (b)  research relating to the provision of higher education or vocational education and training, including research relating to:

                              (i)  quality assurance; or

                             (ii)  planning the provision of higher education or vocational education and training.

             (2)  However, if the information was provided by a higher education provider or a *VET provider, then the *Secretary may only disclose the information under subsection (1) to a person referred to in paragraph (3)(b), (c) or (d) if the provider consents to that disclosure.

Persons to which information may be disclosed

             (3)  For the purposes of subsection (1), the persons are the following:

                     (a)  a person (an officer) who is employed or engaged by a State or Territory agency;

                     (b)  an *officer of a higher education provider;

                     (c)  an *officer of a VET provider;

                     (d)  a person (an officer) who is employed or engaged by a body or association determined by the Minister under subsection (4).

             (4)  The Minister may, by legislative instrument, make a determination in relation to a body or association for the purposes of paragraph (3)(d).

Use of the information

             (5)  A person commits an offence if:

                     (a)  the person uses information for a purpose; and

                     (b)  the purpose is not a permitted purpose; and

                     (c)  the information is *personal information or *VET personal information; and

                     (d)  the information was disclosed under subsection (1) to the person or another person when the person or other person was an officer of a body referred to in subsection (3); and

                     (e)  the information was not obtained or created by an *officer for the purposes of Part 2‑3.

Penalty:  Imprisonment for 2 years.

Further disclosure of the information

             (6)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information is *personal information or *VET personal information; and

                     (c)  the information was disclosed under subsection (1) to the person or another person when the person or other person was an officer of a body referred to in subsection (3); and

                     (d)  either or both of the following apply:

                              (i)  the disclosure is not for a permitted purpose;

                             (ii)  the disclosure is to a person who is not an officer of that body; and

                     (e)  the information was not obtained or created by an *officer for the purposes of Part 2‑3.

Penalty:  Imprisonment for 2 years.

180‑30  Use of information to conduct surveys

                   A *Commonwealth officer may use *Higher Education Support Act information in order to conduct a survey of staff, students or former students of higher education providers or *VET providers for any of the following purposes:

                     (a)  improving the provision of higher education or vocational education and training;

                     (b)  research relating to the provision of higher education or vocational education and training, including research relating to:

                              (i)  quality assurance; or

                             (ii)  planning the provision of higher education or vocational education and training.

180‑35  This Division does not limit disclosure or use of information

                   This Division does not limit the disclosure or use of *Higher Education Support Act information.

Note:          The disclosure or use of Higher Education Support Act information may also be authorised in other circumstances. For example, see Division 179, Division 14 of Schedule 1A and the Privacy Act 1988.

Division 182Other rules about information

182‑1  Minister may seek information from TEQSA and relevant VET regulator

             (1)  The Minister may seek information relating to a higher education provider from *TEQSA or the *relevant VET regulator (or both) for the purposes of administering, or enforcing compliance with, one or more of the following:

                     (a)  this Act and the regulations;

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

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

             (2)  The Minister may seek information relating to a *VET provider from *TEQSA or the *relevant VET regulator (or both) for the purposes of administering, or enforcing compliance with, one or more of the following:

                     (a)  this Act and the regulations;

                     (b)  *VET Guidelines that apply to the provider;

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

Part 5‑5Tax file numbers

Division 184Introduction

184‑1  What this Part is about

Requirements relating to students’ tax file numbers apply to assistance under Chapter 3 that gives rise to HELP debts.

The Commissioner may notify higher education providers, or where appropriate Open Universities Australia, of matters relating to tax file numbers.

Higher education providers, and where appropriate Open Universities Australia, have obligations relating to notifying students about tax file number requirements.

Higher education providers have obligations relating to cancelling the enrolment of students who do not have tax file numbers.

Note:          Part VA of the Income Tax Assessment Act 1936 provides for issuing, cancelling or altering tax file numbers.

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

187‑1  Meeting the tax file number requirements

Assistance other than SA‑HELP assistance

             (1)  A student who is enrolled, or proposes to enrol, with a higher education provider in a unit of study access to which was not provided by *Open Universities Australia, meets the tax file number requirements for assistance under Chapter 3, except *SA‑HELP assistance, if:

                     (a)  the student notifies his or her *tax file number to an *appropriate officer of the provider, and the provider is satisfied (in accordance with subsection (4)) that this number is a valid tax file number; or

                     (b)  the student gives to the officer a certificate from the *Commissioner stating that the student has applied to the Commissioner asking the Commissioner to issue a tax file number to the student.

       (1AA)  Compliance by a person with subsection (1) in relation to a *course of study is to be ignored in determining whether there has been compliance by the person with subsection (1) in relation to any other course of study.

          (1A)  A student who accesses, or proposes to access, a unit of study through *Open Universities Australia, meets the tax file number requirements for assistance under Chapter 3, except *SA‑HELP assistance, if:

                     (a)  the student notifies his or her *tax file number to an *appropriate officer of Open Universities Australia, and Open Universities Australia is satisfied (in accordance with subsection (4)) that this number is a valid tax file number; or

                     (b)  the student gives to the officer a certificate from the *Commissioner stating that the student has applied to the Commissioner asking the Commissioner to issue a tax file number to the student.

             (2)  If the student is seeking *HECS‑HELP assistance or *FEE‑HELP assistance for a unit of study, he or she does not meet the tax file number requirements for the assistance unless he or she complies with subsection (1) or (1A) (as the case requires) on or before the *census date for the unit.

             (3)  A notification under paragraph (1)(a) may be included in a *request for Commonwealth assistance, except a request for Commonwealth assistance relating to a *student services and amenities fee, that the student has given to the provider in relation to:

                     (a)  the unit of study for which the assistance is sought; or

                     (b)  the *course of study of which the unit forms a part; or

                     (c)  any other unit of study forming part of that course.

          (3A)  A notification under paragraph (1A)(a) may be included in a *request for Commonwealth assistance that the student has given to *Open Universities Australia in relation to the unit of study for which the assistance is sought.

SA‑HELP assistance

          (3B)  A student who is enrolled, or proposes to enrol, with a higher education provider in a *course of study or *bridging course for overseas‑trained professionals meets the tax file number requirements for *SA‑HELP assistance if:

                     (a)  the student notifies his or her *tax file number to an *appropriate officer of the provider, and the provider is satisfied (in accordance with subsection (4)) that this number is a valid tax file number; or

                     (b)  the student gives to the officer a certificate from the *Commissioner stating that the student has applied to the Commissioner asking the Commissioner to issue a tax file number to the student.

          (3C)  Compliance by a person with subsection (3B) in relation to the person’s actual or proposed enrolment in a *course of study or *bridging course for overseas‑trained professionals is to be ignored in determining whether there has been compliance by the person with subsection (3B) in relation to the person’s actual or proposed enrolment in another such course or bridging course.

          (3D)  If the student is seeking *SA‑HELP assistance for a *student services and amenities fee, he or she does not meet the tax file number requirements for the assistance unless he or she complies with subsection (3B) on or before the day the fee is payable.

          (3E)  A notification under paragraph (3B)(a) may be included in any *request for Commonwealth assistance relating to a *student services and amenities fee imposed on the student in connection with his or her enrolment in the *course of study or *bridging course for overseas‑trained professionals.

Commissioner’s role

             (4)  The *Commissioner may issue guidelines about the circumstances in which:

                     (a)  a higher education provider is to be, or is not to be, satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(a) or (3B)(a); and

                     (b)  *Open Universities Australia is to be, or is not to be, satisfied that a number is a valid tax file number for the purposes of paragraph (1A)(a).

             (5)  A certificate under paragraph (1)(b) or (3B)(b) must be in the *approved form.

             (6)  A certificate under paragraph (1A)(b) must be in the *approved form.

Commissioner’s guidelines are legislative instruments

             (7)  A guideline issued under subsection (4) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

187‑2  Who is an appropriate officer?

             (1)  An appropriate officer of a higher education provider, means 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 an appropriate officer of the provider for the purposes of this Act.

             (2)  An appropriate officer of *Open Universities Australia, means a person, or a person included in a class of persons, whom:

                     (a)  the chief executive officer of Open Universities Australia; or

                     (b)  a delegate of the chief executive officer of Open Universities Australia;

has appointed to be an appropriate officer of Open Universities Australia for the purposes of this Act.

187‑5  Student to notify tax file number when issued

             (1)  If a student *meets the tax file number requirements for the assistance under paragraph 187‑1(1)(b):

                     (a)  the student must notify his or her *tax file number to an *appropriate officer of the higher education provider within 21 days from the day on which the *Commissioner issues the tax file number to the student; and

                     (b)  the provider must be satisfied (in accordance with subsection 187‑1(4)) that this number is a valid *tax file number.

             (2)  If a student *meets the tax file number requirements for assistance under paragraph 187‑1(1A)(b):

                     (a)  the student must notify his or her *tax file number to an *appropriate officer of *Open Universities Australia within 21 days from the day on which the *Commissioner issues the tax file number to the student; and

                     (b)  Open Universities Australia must be satisfied (in accordance with subsection 187‑1(4)) that this number is a valid *tax file number.

Division 190In what circumstances can higher education providers and Open Universities Australia be notified of tax file number matters?

190‑1  When tax file numbers are issued etc.

             (1)  The *Commissioner may give to a higher education provider written notice of the *tax file number of a student who is enrolled in a *course of study with the provider if the Commissioner:

                     (a)  issues the tax file number to the student; or

                     (b)  refuses to issue a tax file number to the student on the ground that the student already has a tax file number.

             (2)  The *Commissioner may give to *Open Universities Australia written notice of the *tax file number of a student to whom Open Universities Australia provides access to a unit of study if the Commissioner:

                     (a)  issues the tax file number to the student; or

                     (b)  refuses to issue a tax file number to the student on the ground that the student already has a tax file number.

190‑5  When tax file numbers are altered

             (1)  The *Commissioner may give to a higher education provider written notice of the *tax file number of a student who is enrolled in a *course of study with the provider if the Commissioner issues a new tax file number to the student in place of a tax file number that has been withdrawn.

             (2)  That new number is taken to be the number that the student notified to the provider.

             (3)  The *Commissioner may give to *Open Universities Australia written notice of the *tax file number of a student to whom Open Universities Australia provides access to a unit of study if the Commissioner issues a new tax file number to the student in place of a tax file number that has been withdrawn.

             (4)  That new number is taken to be the number that the student notified to *Open Universities Australia.

190‑10  When tax file numbers are incorrectly notified—students with tax file numbers

             (1)  If the *Commissioner is satisfied:

                     (a)  that the *tax file number that a student has notified to a higher education provider:

                              (i)  has been cancelled or withdrawn since the notification was given; or

                             (ii)  is otherwise wrong; and

                     (b)  that the student has a tax file number;

the Commissioner may give to the provider written notice of the incorrect notification and of the student’s tax file number.

             (2)  That number is taken to be the number that the student notified to the provider.

             (3)  If the *Commissioner is satisfied:

                     (a)  that the *tax file number that a student has notified to *Open Universities Australia:

                              (i)  has been cancelled or withdrawn since the notification was given; or

                             (ii)  is otherwise wrong; and

                     (b)  that the student has a tax file number;

the Commissioner may give to Open Universities Australia written notice of the incorrect notification and of the student’s tax file number.

             (4)  That number is taken to be the number that the student notified to *Open Universities Australia.

190‑15  When tax file numbers are incorrectly notified—students without tax file numbers

             (1)  If:

                     (a)  the *Commissioner is satisfied that the *tax file number that a student notified to a higher education provider:

                              (i)  has been cancelled since the notification was given; or

                             (ii)  is for any other reason not the student’s tax file number; and

                     (b)  the Commissioner is not satisfied that the student has a tax file number;

the Commissioner may give to the provider a written notice informing the provider accordingly.

          (1A)  If:

                     (a)  the *Commissioner is satisfied that the *tax file number that a student notified to *Open Universities Australia:

                              (i)  has been cancelled since the notification was given; or

                             (ii)  is for any other reason not the student’s tax file number; and

                     (b)  the Commissioner is not satisfied that the student has a tax file number;

the Commissioner may give Open Universities Australia a written notice informing Open Universities Australia accordingly.

             (2)  The *Commissioner must give a copy of any notice under subsection (1) or (1A) to the student concerned, together with a written statement of the reasons for the decision to give the notice.

Note:          Decisions to give notice under subsection (1) or (1A) are reviewable under section 202F of the Income Tax Assessment Act 1936.

190‑20  When applications are refused or tax file numbers are cancelled

             (1)  If the *Commissioner:

                     (a)  refuses a student’s application for the issue of a *tax file number; or

                     (b)  cancels a tax file number issued to a student;

the Commissioner may give to a higher education provider with which the student is enrolled in a *course of study a written notice informing the provider accordingly.

          (1A)  If the *Commissioner:

                     (a)  refuses a student’s application for the issue of a *tax file number; or

                     (b)  cancels a tax file number issued to a student;

the Commissioner may, if access to a unit of study is provided to the student by *Open Universities Australia, give to Open Universities Australia written notice informing Open Universities Australia accordingly.

             (2)  The *Commissioner must give a copy of any notice under subsection (1) or (1A) to the student concerned, together with a written statement of the reasons for the decision to give the notice.

Note:          Decisions to give notice under subsection (1) or (1A) are reviewable under section 202F of the Income Tax Assessment Act 1936.

Division 193Other provisions relating to tax file numbers

193‑1  Giving information about tax file number requirements

Requests for HECS‑HELP assistance or FEE‑HELP assistance—requirements on higher education providers

             (1)  A higher education provider must notify a person in writing how to *meet the tax file number requirements if:

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

                     (b)  the person has, on or before the *census date for the unit, completed, signed and given to the *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;

                     (c)  in that request, the person requests *HECS‑HELP assistance or *FEE‑HELP assistance for the unit or the course; and

                     (d)  the request does not include a number that purports to be the person’s *tax file number.

             (2)  The provider must notify the person under subsection (1):

                     (a)  on or before the *census date for the unit; or

                     (b)  within 7 days after the person gives the provider the *request for Commonwealth assistance;

whichever is earlier.

Requests for FEE‑HELP assistance—requirements on Open Universities Australia

          (2A)  *Open Universities Australia must notify a person in writing how to *meet the tax file number requirements if:

                     (a)  Open Universities Australia provides access to a unit of study to the person; and

                     (b)  the person has, on or before the *census date for the unit, completed, signed and given to an *appropriate officer of Open Universities Australia a *request for Commonwealth assistance in relation to the unit; and

                     (c)  in that request, the person requests *FEE‑HELP assistance for the unit; and

                     (d)  the request does not include a number that purports to be the person’s *tax file number.

          (2B)  *Open Universities Australia must notify the person under subsection (2A):

                     (a)  on or before the *census date for the unit; or

                     (b)  within 7 days after the person gives Open Universities Australia the *request for Commonwealth assistance;

whichever is earlier.

          (2C)  A request for Commonwealth assistance, in relation to a person to whom *Open Universities Australia provides access to a unit of study, means a document:

                     (a)  in which the person requests the Commonwealth to provide assistance under this Act in relation to the unit; and

                     (b)  that is in the form approved by the Minister.

Requests for OS‑HELP assistance

             (3)  A higher education provider must notify a person in writing how to *meet the tax file number requirements if:

                     (a)  the person is enrolled in a *course of study with the provider; and

                     (b)  the person has, before receiving *OS‑HELP assistance, completed, signed and given to an *appropriate officer of the provider a *request for Commonwealth assistance; and

                     (c)  in that request, the person requests OS‑HELP assistance in relation to a period of 6 months; and

                     (d)  the request does not include a number that purports to be the person’s *tax file number.

             (4)  The provider must notify the person under subsection (3) within 7 days after the person gives the provider the *request for Commonwealth assistance.

Requests for SA‑HELP assistance

          (4A)  A higher education provider must notify a person in writing how to *meet the tax file number requirements if:

                     (a)  the person is enrolled with the provider in a *course of study or *bridging course for overseas‑trained professionals; and

                     (b)  the provider has imposed a *student services and amenities fee on the person; and

                     (c)  the person has, on or before the day on which the fee is payable, completed, signed and given to the *appropriate officer of the provider a *request for Commonwealth assistance in relation to a student services and amenities fee imposed on the person for a period during which he or she is enrolled in the course or bridging course; and

                     (d)  in that request, the person requests *SA‑HELP assistance for the student services and amenities fee; and

                     (e)  the request does not include a number that purports to be the person’s *tax file number.

          (4B)  The provider must notify the person under subsection (4A):

                     (a)  on or before the day the *student services and amenities fee is payable; or

                     (b)  within 7 days after the person gives the provider the *request for Commonwealth assistance;

whichever is earlier.

Cases where there is no obligation to notify

             (5)  This section does not apply to the person if:

                     (a)  the person, in the *request for Commonwealth assistance, requests *HECS‑HELP assistance, *FEE‑HELP assistance, *OS‑HELP assistance or *SA‑HELP assistance, but the person is not entitled to the assistance; or

                     (b)  the person, in the request for Commonwealth assistance, requests HECS‑HELP assistance in relation to a unit of study, but one or more *up‑front payments for the unit have been made totalling 90% of the person’s *student contribution amount for the unit.

Note:          In the circumstances set out in paragraph (5)(b), the HECS‑HELP assistance would not involve any loan by the Commonwealth to the person.

193‑5  No entitlement to HECS‑HELP assistance for students without tax file numbers

             (1)  A higher education provider must cancel a person’s enrolment in a unit of study with the provider if:

                     (a)  the provider receives notice under section 190‑15 or 190‑20 to the effect that the person does not have, or no longer has, a *tax file number; and

                     (b)  at the end of 28 days after the provider receives that notice, the provider has not been notified of a number that the provider is satisfied (in accordance with subsection (3)) is a valid tax file number; and

                     (c)  the person is entitled to *HECS‑HELP assistance for the unit (ignoring paragraph 90‑1(f)); and

                     (d)  the person has not paid, as one or more *up‑front payments in relation to the unit, 90% of his or her *student contribution amount for the unit.

Note:          If a person’s enrolment is cancelled under this section, the provider has certain payment obligations: see section 36‑24B.

             (2)  The provider must not accept a further enrolment of the person in that unit as a *Commonwealth supported student.

             (3)  A higher education provider must, in deciding whether it is satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(b), comply with the guidelines issued by the *Commissioner under subsection 187‑1(4).

             (4)  A higher education provider must comply with any requirements, set out in guidelines issued by the *Commissioner, relating to procedures for informing persons who may be affected by subsection (1) or (3) of the need to obtain a valid *tax file number.

             (5)  A guideline issued under subsection (4) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

193‑10  No entitlement to FEE‑HELP assistance for students without tax file numbers

             (1)  This subsection applies to a person in relation to a unit of study if:

                     (a)  the person is enrolled with a higher education provider in the unit; and

                     (b)  access to the unit was not provided by *Open Universities Australia; and

                     (c)  the provider receives notice under section 190‑15 or 190‑20 to the effect that the person does not have, or no longer has, a *tax file number; and

                     (d)  at the end of 28 days after the provider receives that notice, the provider has not been notified of a number that the provider is satisfied (in accordance with subsection (3)) is a valid tax file number; and

                     (e)  the person is entitled to *FEE‑HELP assistance for the unit (ignoring paragraph 104‑1(1)(h)).

Note:          The person’s FEE‑HELP balance in relation to the unit is re‑credited: see subsection 104‑27(1).

             (2)  This subsection applies to a person in relation to a unit of study if:

                     (a)  the person is enrolled in the unit; and

                     (b)  access to the unit was provided by *Open Universities Australia; and

                     (c)  Open Universities Australia receives notice under section 190‑15 or 190‑20 to the effect that the person does not have, or no longer has, a *tax file number; and

                     (d)  at the end of 28 days after Open Universities Australia receives that notice, Open Universities Australia has not been notified of a number that it is satisfied (in accordance with subsection (3)) is a valid tax file number; and

                     (e)  the person is entitled to *FEE‑HELP assistance for the unit (ignoring paragraph 104‑1(1)(h)).

Note:          The person’s FEE‑HELP balance in relation to the unit is re‑credited: see subsection 104‑27(2).

             (3)  A higher education provider or *Open Universities Australia must, in deciding whether it is satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(d) or (2)(d), as the case may be, comply with the guidelines issued by the *Commissioner under subsection 187‑1(4).

             (4)  A higher education provider or *Open Universities Australia must comply with any requirements, set out in guidelines issued by the *Commissioner, relating to procedures for informing persons of the need to obtain a valid *tax file number, where the persons may be affected by subsection (1) or (2), as the case may be, applying to them.

             (5)  A guideline issued under subsection (4) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

193‑15  No entitlement to SA‑HELP assistance for students without tax file numbers

             (1)  This subsection applies to a person if:

                     (a)  a higher education provider has imposed a *student services and amenities fee on the person; and

                     (b)  the provider receives notice under section 190‑15 or 190‑20 to the effect that the person does not have, or no longer has, a *tax file number; and

                     (c)  at the end of 28 days after the provider receives that notice, the provider has not been notified of a number that the provider is satisfied (in accordance with subsection (2)) is a valid tax file number; and

                     (d)  the person is entitled to *SA‑HELP assistance for the fee (ignoring paragraph 126‑1(1)(c)).

Note:          If subsection (1) applies to a person:

(a)    the provider must repay any amount paid to the provider by the Commonwealth to discharge the person’s liability for the student services and amenities fee (see section 128‑5); and

(b)    the person’s SA‑HELP debt relating to the payment by the Commonwealth is remitted (see subsection 137‑16(4)).

             (2)  A higher education provider must, in deciding whether it is satisfied that a number is a valid *tax file number for the purposes of paragraph (1)(c), comply with the guidelines issued by the *Commissioner under subsection 187‑1(4).

             (3)  A higher education provider must comply with any requirements, set out in guidelines issued by the *Commissioner, relating to procedures for informing persons of the need to obtain a valid *tax file number, where the persons may be affected by subsection (1) applying to them.

             (4)  A guideline issued under subsection (3) is a legislative instrument.

Part 5‑6Indexation

Division 198Indexation

198‑1  What this Part is about

Several amounts referred to in provisions of this Act are indexed. This Part sets out how those amounts are indexed.

Note 1:       Different methods of indexation are used for the indexing of accumulated HELP debts under sections 140‑10 and 140‑15, and for the indexing of HELP repayment thresholds under section 154‑25.

Note 2:       Guidelines may provide for amounts to be indexed using the method of indexation set out in this Part.

198‑5  The amounts that are to be indexed

             (1)  This table sets out the amounts that are to be indexed.

 

Amounts that are to be indexed

Item

Amounts:

See:

1A

Amount mentioned in paragraph 19‑37(5)(e)

Section 19‑37

1

*Commonwealth contribution amounts

Section 33‑10

2

Reduction amount

Section 33‑37

3

*Maximum student contribution amounts for places

Section 93‑10

4

The *FEE‑HELP limit

Section 104‑20

5

*Maximum OS‑HELP (overseas study) amounts

Section 121‑5

6

The *maximum OS‑HELP (Asian language study) amount

Section 121‑15

             (2)  The amount mentioned in the section referred to in an item of the table, for a calendar year with an indexation factor greater than 1, is replaced by the amount worked out in accordance with section 198‑10.

198‑10  Indexing amounts

             (1)  An amount is indexed on 1 January 2012, and on each subsequent 1 January, by multiplying it by the *indexation factor for the relevant year.

             (2)  However an amount is not indexed if its *indexation factor is 1 or less.

             (3)  If an amount worked out under subsection (1) is an amount made up of dollars and cents, round the amount down to the nearest dollar.

198‑15  Meaning of indexation factor

             (1)  The indexation factor for the relevant year is:

                  

             (2)  Work out the *indexation factor to 3 decimal places (rounding up if the fourth decimal place is 5 or more).

Example:    If the factor is 1.102795, it is rounded up to 1.103.

198‑20  Meaning of index number

             (1)  For the purpose of applying section 198‑10 to the amounts specified in the table in section 198‑5 for a year, the index number is the Higher Education Grants Index number for the year published by the Minister in the Gazette.

             (2)  The Higher Education Grants Index number for a year must reflect the following amounts:

                     (a)  25% of the amount of the movement in the All Groups Consumer Price Index for the weighted average of the 8 capital cities, based on index numbers published by the *Australian Statistician for each *quarter in the *indexation period;

                     (b)  75% of 90% of the amount of the movement in the Professional, Scientific and Technical Services Labour Price Index, based on index numbers published by the Australian Statistician for each quarter in the indexation period.

             (3)  Subject to subsection (4), if, at any time before or after the commencement of this subsection:

                     (a)  the *Australian Statistician has published or publishes an index number in respect of a *quarter; and

                     (b)  that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;

regard may be had to the publication of the later index for the purposes of calculating the Higher Education Grants Index number for a year.

             (4)  If, at any time before or after the commencement of this subsection, the *Australian Statistician has changed or changes the reference base for the All Groups Consumer Price Index or the Professional, Scientific and Technical Services Labour Price Index, then, for the purposes of applying this section after the change took place or takes place, have regard to index numbers published in terms of the new reference base.

             (5)  For the purpose of applying section 198‑10 to the amounts specified in each item of the table in section 198‑5 for 2012, the index number for 2011 is taken to be 1.

             (6)  A notice in the Gazette specifying an index number is not a legislative instrument.

             (7)  In this section:

indexation period, in relation to a calendar year, means the period beginning on 1 January 2010 and ending on 31 December of the calendar year before the immediately preceding calendar year.

Part 5‑7Review of decisions

Division 203Introduction

203‑1  What this Part is about

Some decisions made under this Act are subject to reconsideration and then review by the Administrative Appeals Tribunal.

Division 206Which decisions are subject to review?

206‑1  Reviewable decisions etc.

                   The table sets out:

                     (a)  the reviewable decisions under this Act; and

                     (b)  the decision maker, for the purposes of this Division, in respect of each of those decisions.

 

Reviewable decisions

Item

Decision

Provision under which decision is made

Decision maker

1AA

A decision to impose a condition on the approval of a higher education provider

subsection 16‑60(1)

the Minister

1AB

A decision to vary a condition imposed on the approval of a higher education provider

subsection 16‑60(2)

the Minister

1a

A decision that section 36‑20 does not apply to a person

section 36‑20

(a) the higher education provider with whom the student is enrolled in the unit; or

(b) if the *Secretary made the decision that the section does not apply—the Secretary

2

Refusal to re‑credit a person’s *FEE‑HELP balance

subsection 104‑25(1)

(a) the higher education provider with whom the student is enrolled in the unit; or

(b) if the *Secretary made the decision to refuse the re‑crediting—the Secretary

2A

Refusal to re‑credit a person’s *FEE‑HELP balance

subsection 104‑25(2)

(a) *Open Universities Australia; or

(b) if the *Secretary made the decision to refuse the re‑crediting—the Secretary

3

Deferral of making an assessment or refusal to defer the making of an assessment

section 154‑45

the *Commissioner

4

Amending the assessment or refusal to amend an assessment

section 154‑50

the *Commissioner

4A

A determination

section 157‑20

the *Commissioner

Note 1:       The decisions referred to in items 1A, 1 and 2 of the table are made by a higher education provider on the Secretary’s behalf.

Note 2:       The decisions referred to in item 2A of the table are made by Open Universities Australia on the Secretary’s behalf.

206‑5  Deadlines for making reviewable decisions

                   If:

                     (a)  this Act provides for a person to apply to a *decision maker to make a *reviewable decision; and

                     (b)  a period is specified under this Act for giving notice of the decision to the applicant; and

                     (c)  the decision maker has not notified the applicant of the decision maker’s decision within that period;

the decision maker is taken, for the purposes of this Act, to have made a decision to reject the application.

206‑10  Decision maker must give reasons for reviewable decisions

             (1)  If this Act requires the *decision maker to notify a person of the making of a *reviewable decision, the notice must include reasons for the decision.

             (2)  Subsection (1) does not affect an obligation, imposed upon the *decision maker by any other law, to give reasons for a decision.

Division 209How are decisions reconsidered?

209‑1  Reviewer of decisions

             (1)  The reviewer of a *reviewable decision is:

                     (a)  if the *decision maker was a higher education provider acting on behalf of the *Secretary—the Secretary; or

                     (b)  if the *decision maker was *Open Universities Australia acting on behalf of the *Secretary—the Secretary; or

                     (c)  in any other case—the decision maker, but see subsection (2).

             (2)  If:

                     (a)  a *reviewable decision was made by a delegate of a *decision maker; and

                     (b)  the decision is to be reconsidered by a delegate of the decision maker;

then the delegate who reconsiders the decision must be a person who:

                     (c)  was not involved in making the decision; and

                     (d)  occupies a position that is senior to that occupied by any person involved in making the decision.

Note 1:       The Secretary may delegate to a review officer of a higher education provider the power to reconsider reviewable decisions made under section 36‑20 or Chapter 3: see subsection 238‑1(2).

Note 2:       The Secretary may also delegate to a review officer of Open Universities Australia the power to reconsider reviewable decisions made under Chapter 3: see subsection 238‑1(2A).

209‑5  Reviewer may reconsider reviewable decisions

             (1)  The *reviewer of a *reviewable decision may reconsider the decision if the reviewer is satisfied that there is sufficient reason to do so.

             (2)  The *reviewer may reconsider the decision even if:

                     (a)  an application for reconsideration of the decision has been made under section 209‑10; or

                     (b)  the decision has been confirmed, varied or set aside under section 209‑10 and an application has been made under section 212‑1 for review of the decision.

             (3)  After reconsidering the decision, the *decision maker must:

                     (a)  confirm the decision; or

                     (b)  vary the decision; or

                     (c)  set the decision aside and substitute a new decision.

             (4)  The *reviewer’s decision (the decision on review) to confirm, vary or set aside the decision takes effect:

                     (a)  on the day specified in the decision on review; or

                     (b)  if a day is not specified—on the day on which the decision on review was made.

             (5)  The *reviewer must give written notice of the decision on review to the person to whom that decision relates.

             (6)  The notice:

                     (a)  must be given within a reasonable period after the decision is made; and

                     (b)  must contain a statement of the reasons for the *reviewer’s decision on review.

Note:          Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.

209‑10  Reconsideration of reviewable decisions on request

             (1)  A person whose interests are affected by a *reviewable decision may request the *reviewer to reconsider the decision.

             (2)  The person’s request must be made by written notice given to the *reviewer within 28 days, or such longer period as the reviewer allows, after the day on which the person first received notice of the decision.

             (3)  The notice must set out the reasons for making the request.

             (4)  After receiving the request, the *reviewer must reconsider the decision and:

                     (a)  confirm the decision; or

                     (b)  vary the decision; or

                     (c)  set the decision aside and substitute a new decision.

             (5)  The *reviewer’s decision (the decision on review) to confirm, vary or set aside the decision takes effect:

                     (a)  on the day specified in the decision on review; or

                     (b)  if a day is not specified—on the day on which the decision on review was made.

          (5A)  The *reviewer must give the person written notice of the decision on review.

          (5B)  The notice:

                     (a)  must be given within a reasonable period after the decision on review is made; and

                     (b)  must contain a statement of the reasons for the decision on review.

             (6)  The *reviewer is taken, for the purposes of this Part, to have confirmed the decision if the reviewer does not give notice of a decision to the person within 45 days after receiving the person’s request.

Note:          Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.

Division 212Which decisions are subject to AAT review?

212‑1  AAT review of reviewable decisions

                   An application may be made to the Administrative Appeals Tribunal for the review of a *reviewable decision that has been confirmed, varied or set aside under section 209‑5 or 209‑10.

Chapter 7Miscellaneous

  

  

238‑1  Delegations by Secretary

             (1)  The *Secretary may, in writing, delegate to an APS employee all or any of the powers of the Secretary under this Act, the regulations or any Guidelines made under section 238‑10.

             (2)  The *Secretary may, in writing, delegate to a *review officer of a higher education provider the Secretary’s powers under Division 209 to reconsider *reviewable decisions made by the provider:

                     (a)  under section 36‑20; or

                     (b)  relating to Chapter 3.

          (2A)  The *Secretary may, in writing, delegate to a *review officer of *Open Universities Australia the Secretary’s powers under Division 209 to reconsider *reviewable decisions made by Open Universities Australia relating to Chapter 3.

          (2B)  A review officer of *Open Universities Australia is a person, or a person included in a class of persons, whom:

                     (a)  the chief executive officer of Open Universities Australia; or

                     (b)  a delegate of the chief executive officer of Open Universities Australia;

has appointed to be a review officer of Open Universities Australia for the purposes of reviewing decisions made by it relating to assistance under Chapter 3.

             (3)  In exercising powers under the delegation, the delegate must comply with any directions of the *Secretary.

238‑5  Delegations by Minister

             (1)  The Minister may, by writing, delegate to:

                     (a)  the *Secretary; or

                     (b)  an APS employee;

all or any of the Minister’s powers under this Act (other than under section 41‑45 or section 46‑40).

             (2)  In exercising powers under the delegation, the delegate must comply with any directions of the Minister.

238‑7  Review of impact of Act

                   Before 31 December 2006, the Minister must cause a review to be commenced of the impact on the higher education sector of the higher education reforms enacted through this Act.

238‑8  Extent of Commissioner’s general administration of this Act

                   The *Commissioner has the general administration of this Act to the following extent:

                     (a)  Chapter 4, except section 154‑30;

                     (b)  section 179‑25;

                     (c)  section 179‑30, so far as it relates to the Commissioner;

                     (d)  Part 5‑5;

                     (e)  Divisions 206 and 209, so far as they relate to *reviewable decisions for which the Commissioner is the *decision maker;

                      (f)  clause 76 of Schedule 1A;

                     (g)  clause 77 of Schedule 1A, so far as that clause relates to the Commissioner;

                     (h)  Division 15 of Schedule 1A.

Note:          One effect of this is that this Act is to that extent a taxation law for the purposes of the Taxation Administration Act 1953.

238‑10  Guidelines

             (1)  The Minister may, by legislative instrument, make Guidelines, specified in the second column of the table, providing for matters:

                     (a)  required or permitted by the corresponding Chapter, Part or section specified in the third column of the table to be provided; or

                     (b)  necessary or convenient to be provided in order to carry out or give effect to that Chapter, Part or section.

 

Guidelines

Item

Guidelines

Chapter/Part/section

1

Administration Guidelines

section 19‑37; section 36‑21; Chapter 5

2

Commonwealth Grant Scheme Guidelines

Part 2‑2; section 93‑10

3

Commonwealth Scholarships Guidelines

Part 2‑4

4

FEE‑HELP Guidelines

Part 3‑3

4A

HECS‑HELP Benefit Guidelines

Part 4‑2

5

HECS‑HELP Guidelines

Part 3‑2

6

Higher Education Provider Guidelines

Part 2‑1

7

OS‑HELP Guidelines

Part 3‑4

8

Other Grants Guidelines

Part 2‑3

9

Reduction and Repayment Guidelines

Part 2‑5

10A

Student Services, Amenities, Representation and Advocacy Guidelines

section 19‑67

11

Tuition Fee Guidelines

Part 2‑2

          (1A)  The Minister may, by legislative instrument, make Guidelines, called Guidelines for Overseas Higher Education Providers, specifying additional requirements or conditions applicable to *Table C providers.

Indexation

             (3)  Guidelines may provide for the indexation of any or all amounts in the Guidelines, using the method of indexation set out in Part 5‑6.

238‑12  Appropriation

                   Amounts payable by the Commonwealth under this Act are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

238‑15  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Schedule 1AVET FEE‑HELP Assistance Scheme

Note:       See section 6‑1.

1  What this Schedule is about

This Schedule provides for loans, called VET FEE‑HELP assistance, to be made available to students enrolled in certain vocational education and training (VET) courses.

Part 1VET providers

Division 1Introduction

2  What this Part is about

A body has to be approved as a VET provider before its students can receive VET FEE‑HELP. This Part sets out VET provider application and approval processes.

VET providers are subject to the VET quality and accountability requirements.

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

3  The VET Guidelines

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

Note:          The VET Guidelines are made by the Minister under clause 99.

Division 3What is a VET provider?

Subdivision 3‑AGeneral

4  Meaning of VET provider

                   A VET provider is a body that is approved under this Division.

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

             (1)  A body becomes a *VET provider if approved by the Minister under clause 6.

             (2)  A *VET provider ceases to be a provider if the provider’s approval is revoked or suspended under Division 5 or the notice of the provider’s approval ceases to have effect under Part 5 (Parliamentary scrutiny of legislative instruments) of the Legislative Instruments Act 2003.

Subdivision 3‑BHow are bodies approved as VET providers?

6  Approval by the Minister

             (1)  The Minister, in writing, may approve a body as a *VET provider if:

                    (aa)  the body is a body corporate; and

                     (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

                     (b)  subject to subclause (2), providing education is, or is taken to be, the body’s principal purpose; and

                            (c)   the body is a *registered training organisation as listed on the *National Register; and

                     (d)  the body either fulfils the *VET tuition assurance requirements or is exempted from those requirements under clause 8; and

                   (da)  the body offers at least one *VET course of study; and

                     (e)  the body applies for approval as provided for in clause 9; and

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

                     (g)  the body complies with any requirements set out in the *VET Guidelines; and

                     (h)  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.

          (1A)  The Minister, in writing, may also approve a body as a *VET provider if:

                     (a)  the body is of a kind specified in the *VET Guidelines; and

                     (b)  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

                     (c)  subject to subclause (2), providing education is, or is taken to be, the body’s principal purpose; and

                     (d)  the body is a *registered training organisation as listed on the *National Register; and

                     (e)  the body either fulfils the *VET tuition assurance requirements or is exempted from those requirements under clause 8; and

                      (f)  the body offers at least one *VET course of study; and

                     (g)  the body applies for approval as provided for in clause 9; and

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

                      (i)  the body complies with any requirements set out in the VET Guidelines.

             (2)  For the purpose of paragraph (1)(b) or (1A)(c), the Minister may determine that providing education is taken to be a body’s principal purpose if the Minister is satisfied that any of the body’s purposes do not conflict with the body’s purpose of providing education.

             (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 subclause (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 subclause (3).

7  The VET tuition assurance requirements

                   The VET tuition assurance requirements are that the body complies with the requirements for VET tuition assurance set out in the *VET Guidelines.

8  VET tuition assurance requirements exemption for approvals

             (1)  The Minister may, in writing, exempt a body from the *VET tuition assurance requirements for the purposes of approving the body under clause 6.

Note:          This clause only deals with exemptions from the VET tuition assurance requirements when approving bodies as VET providers. The VET Guidelines will deal with exemptions from the VET tuition assurance requirements after approval has happened.

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

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

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

9  Application

                 (1)   A body that is a *registered training organisation may apply, in writing, to the Minister for approval as a *VET provider.

             (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.

10  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 subclause (1), the application is taken to have been withdrawn.

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

11  Minister to decide application

             (1)  The Minister must:

                     (a)  decide an application for approval as a *VET provider; and

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

             (2)  For the purposes of paragraph 6(1)(f) or 6(1A)(h):

                     (a)  the Minister may be satisfied that a body is willing and able to meet the *VET quality and accountability requirements if the body gives the Minister such written undertakings as the Minister requires; and

                     (b)  the Minister may be satisfied that a body is willing and able to meet:

                              (i)  the *VET quality and accountability requirements; or

                             (ii)  one or more of the requirements referred to in paragraphs 13(a) to (f);

                            if a body approved under the *VET Guidelines so recommends in accordance with those guidelines.

          (2A)  Subclause (2) does not limit the circumstances in which the Minister may be satisfied, for the purposes of paragraph 6(1)(f) or 6(1A)(h), that a body is willing and able to meet the *VET quality and accountability requirements.

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

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

                     (b)  if further information is requested under clause 10—within 60 days after the end of the period within which the information was required to be provided under that clause;

whichever is the later.

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

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

12  Approvals are legislative instruments

             (1)  A notice of approval under paragraph 11(1)(b) is a legislative instrument.

             (2)  A decision of the Minister to approve a body as a *VET provider takes effect when the notice of approval takes effect under the Legislative Instruments Act 2003.

Note:          Section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.

12A  Conditions of approval

             (1)  The Minister may impose conditions on a body’s approval as a *VET 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 subclause (1).

12B  Minister to cause VET 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 *VET 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.

12C  Variation of approval if body’s name changes

             (1)  If a body is approved as a *VET provider under clause 6 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 subclause (2) is a legislative instrument.

             (4)  The variation takes effect when the notice of variation takes effect under the Legislative Instruments Act 2003.

Note:          Section 12 of the Legislative Instruments Act 2003 provides for when a legislative instrument takes effect.

Division 4What are the VET quality and accountability requirements?

Subdivision 4‑AGeneral

13  The VET quality and accountability requirements

                   The VET quality and accountability requirements are:

                     (a)  the *VET financial viability requirements (see Subdivision 4‑B); and

                     (b)  the *VET quality requirements (see Subdivision 4‑C); and

                     (c)  the *VET fairness requirements (see Subdivision 4‑D); and

                     (d)  the *VET compliance requirements (see Subdivision 4‑E); and

                     (e)  the *VET fee requirements (see Subdivision 4‑F); and

                      (f)  any other requirements for VET quality and accountability set out in the *VET Guidelines.

Subdivision 4‑BThe VET financial viability requirements

14  Basic requirement

                   A *VET provider:

                     (a)  must be financially viable; and

                     (b)  must be likely to remain financially viable.

15  Financial information must be provided

             (1)  A *VET provider must give to the Minister a financial statement for each *annual financial reporting period for the provider in which a student of the provider receives assistance under this Schedule.

             (2)  The statement:

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

             (3)  An annual financial reporting period, for a *VET 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.

16  Minister to have regard to financial information

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

                     (a)  any financial statement provided by the provider under clause 15; and

                     (b)  any financial information provided by the provider in response to a notice given to the provider under clause 24.

Subdivision 4‑CThe VET quality requirements

17  Provider must maintain quality

             (1)  A *VET provider must operate, and continue to operate, at an appropriate level of quality for a VET provider.

          (1A)  To avoid doubt, subclause (1) covers the quality of all of a *VET provider’s operations.

             (2)  The Minister must not determine that a *VET provider meets an appropriate level of quality for a VET provider unless the Minister is satisfied that the provider meets the requirements relating to quality set out, or referred to, in the *VET Guidelines.

                 (4)   Despite subsection 14(2) of the Legislative Instruments Act 2003, the *VET Guidelines may refer to a requirement by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

Subdivision 4‑DThe VET fairness requirements

18  Equal benefits and opportunity requirements

                   A *VET provider must comply with the requirements relating to equal benefits and opportunity for students that are set out in the *VET Guidelines.

19  Student grievance and review requirements

                   A *VET provider must comply with the requirements relating to student grievance and review procedures that are set out in the *VET Guidelines.

20  Tuition assurance requirements

             (1)  A *VET provider must comply with the *VET tuition assurance requirements.

             (2)  The Minister may, by declaration in writing, exempt a specified *VET provider from the requirement in subclause (1).

             (3)  An exemption:

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

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

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

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

21  VET providers to appoint review officers

             (1)  A *VET provider must appoint a *review officer to undertake reviews of decisions made by the provider relating to assistance under Part 2.

Note:          The Secretary may delegate to a review officer of a VET provider the power to reconsider decisions of the provider under Subdivision 16‑C: see subclause 98(2).

             (2)  A review officer of a *VET 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 relating to assistance under Part 2.

22  Review officers not to review own decisions

                   A *VET 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.

23  Procedures relating to personal information

             (1)  A *VET provider must comply with the Australian Privacy Principles in respect of *VET personal information obtained for the purposes of Part 2 of this Schedule or Chapter 4.

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

             (3)  The provider must comply with:

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

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

Subdivision 4‑EThe VET compliance requirements

23A  Basic requirement

                   A *VET provider must comply with:

                     (a)  this Act and the regulations; and

                     (b)  *VET Guidelines that apply to the provider; and

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

24  VET provider to provide statement of general information

             (1)  A *VET 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 vocational education and training by the provider; and

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

             (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 *VET provider is required to give to the Minister under clause 28.

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

             (1)  A *VET 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 *VET quality and accountability requirements.

             (2)  A *VET provider must, by writing, inform the Minister of any event that may significantly affect whether:

                     (a)  if the VET provider was approved under subclause 6(1)—any of the conditions in subclause 6(1) are or could be met in relation to the provider after the event; or

                    (aa)  if the VET provider was approved under subclause 6(1A)—any of the conditions in subclause 6(1A) are or could be met in relation to the provider after the event; or

                     (b)  there is or may be a ground for revoking under Subdivision 5‑B the approval of the VET provider.

             (3)  A notice under subclause (1) or (2) must be given to the Minister as soon as practicable after the *VET provider becomes aware of the event mentioned in the subclause.

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

                 (1)   If a *VET provider gives the *National VET Regulator a notice under section 25 of the National Vocational Education and Training Regulator Act 2011, the provider must give a copy of the notice to the Minister.

                 (2)   A copy of the notice must be given to the Minister at the same time it must be given to the *National VET Regulator.

26  Compliance assurance—provider

             (1)  The Minister may require a *VET provider to be audited as to compliance with any one or more of the following requirements:

                     (a)  the *VET financial viability requirements;

                     (b)  the *VET fairness requirements;

                     (c)  the *VET compliance requirements;

                     (d)  the *VET fee requirements;

                     (e)  other requirements for VET quality and accountability set out in the *VET Guidelines.

             (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 subclause (2) in relation to the *National VET Regulator, the determination is not a direction for the purpose of subsection 160(2) of the National Vocational Education and Training Regulator Act 2011.

             (3)  The provider must:

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

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

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

26A  Compliance notices

Grounds for giving a compliance notice

             (1)  The Minister may give a *VET provider a written notice (a compliance notice) in accordance with this clause 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)  *VET Guidelines that apply to the provider;

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

Content of compliance notice

             (2)  The compliance notice must:

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

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

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

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

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

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

                     (g)  in any case—set out any other matters specified in the *VET Guidelines for the purposes of this paragraph.

Matters that Minister must consider in giving compliance notice

             (3)  In deciding whether to give the compliance notice, the Minister must consider all of the following matters:

                     (a)  whether the non‑compliance or possible non‑compliance is of a minor or major nature;

                     (b)  the period for which the provider has been approved as a *VET provider;

                     (c)  the provider’s history of compliance with:

                              (i)  this Act and the regulations; and

                             (ii)  the *VET Guidelines that apply to the provider; and

                            (iii)  any conditions imposed on the provider’s approval as a VET provider;

                     (d)  the impact of the VET provider’s non‑compliance or possible non‑compliance, and of the proposed compliance notice, on: