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 4
2‑1......................... Objects of this Act.............................................................. 4
Division 3—Overview of this Act 6
3‑1......................... General............................................................................... 6
3‑5......................... Grants for higher education assistance etc. (Chapter 2)...... 6
3‑10....................... Assistance to students (Chapter 3)...................................... 6
3‑15....................... Repayment of loans (Chapter 4)......................................... 7
3‑20....................... Administration (Chapter 5)................................................. 7
3‑30....................... VET FEE‑HELP Assistance Scheme (Schedule 1A)......... 7
Division 5—Application of Act to Table C providers 8
5‑1......................... Application of Act to Table C providers............................. 8
Division 6—Schedule 1A 11
6‑1......................... Schedule 1A..................................................................... 11
Chapter 2—Grants for higher education assistance etc. 12
Division 8—Introduction 12
8‑1......................... What this Chapter is about................................................ 12
Part 2‑1—Higher education providers 14
Division 13—Introduction 14
13‑1....................... What this Part is about...................................................... 14
13‑5....................... The Higher Education Provider Guidelines...................... 14
Division 16—What is a higher education provider? 15
Subdivision 16‑A—General 15
16‑1....................... Meaning of higher education provider............................. 15
16‑5....................... When a body becomes or ceases to be a higher education provider 15
Subdivision 16‑B—Which bodies are listed providers? 16
16‑10..................... Listed providers................................................................ 16
16‑15..................... Table A providers............................................................. 16
16‑20..................... Table B providers............................................................. 18
16‑22..................... Table C providers............................................................. 18
Subdivision 16‑C—How are bodies approved as higher education providers? 18
16‑25..................... Approval by the Minister.................................................. 18
16‑27..................... Body must be a registered higher education provider....... 20
16‑30..................... The tuition protection requirements................................... 21
16‑40..................... Application....................................................................... 21
16‑45..................... Minister may seek further information.............................. 22
16‑50..................... Minister to decide application........................................... 22
16‑55..................... Approvals are legislative instruments............................... 23
16‑60..................... Conditions of approval..................................................... 23
16‑65..................... Minister to cause higher education provider to be notified of change in condition of approval 24
16‑70..................... Variation of approval if body’s name changes.................. 24
Division 19—What are the quality and accountability requirements? 25
Subdivision 19‑A—General 25
19‑1....................... The quality and accountability requirements..................... 25
Subdivision 19‑B—The financial viability requirements 25
19‑5....................... Basic requirement............................................................. 25
19‑10..................... Financial information must be provided............................ 25
19‑12..................... Minister to have regard to financial information and matters prescribed in Higher Education Guidelines.......................................................................................... 26
Subdivision 19‑C—The quality requirements 26
19‑15..................... Provider must maintain quality......................................... 26
Subdivision 19‑D—The fairness requirements 27
19‑30..................... Basic requirement............................................................. 27
19‑35..................... Benefits and opportunities must be available equally to all students 27
19‑36..................... Misrepresenting assistance under Chapter 3..................... 28
19‑36A.................. Offering certain inducements............................................ 28
19‑36B.................. Engaging in cold‑calling................................................... 28
19‑36C.................. Use of third party contact lists.......................................... 29
19‑36D.................. Other marketing requirements........................................... 29
19‑36E................... Requirements relating to requests for Commonwealth assistance 30
19‑37..................... Requiring membership of certain organisations or payment of certain amounts 30
19‑38..................... Higher education providers’ expenditure of student services and amenities fees 32
19‑42..................... Assessment of students as academically suited................. 34
19‑45..................... Student grievance and review procedures......................... 35
19‑50..................... Higher education providers to appoint review officers..... 36
19‑55..................... Review officers not to review own decisions................... 37
19‑60..................... Procedures relating to personal information...................... 37
Subdivision 19‑E—The compliance requirements 37
19‑65..................... Basic requirements............................................................ 37
19‑66..................... Higher education provider charge..................................... 38
19‑66A.................. Tuition protection requirements........................................ 39
19‑67..................... Special requirements for student services, amenities, representation and advocacy in 2012 and later years.......................................................................................... 40
19‑70..................... Provider to provide statement of general information....... 40
19‑71..................... Co‑operation with HESA and TEQSA investigators........ 41
19‑72..................... Providers must keep records............................................. 41
19‑73..................... Providers must publish information.................................. 42
19‑75..................... Notice of events that affect provider’s ability to comply with conditions of Commonwealth assistance 42
19‑77..................... Notice of events affecting accreditation............................. 42
19‑78..................... Notice of events significantly affecting TEQSA registration 43
19‑80..................... Compliance assurance....................................................... 43
19‑82..................... Compliance notices........................................................... 44
Subdivision 19‑F—What are the contribution and fee requirements? 47
19‑85..................... Basic requirement............................................................. 47
19‑87..................... Determining student contribution amounts for all places in units 47
19‑90..................... Determining tuition fees for all students........................... 48
19‑95..................... Schedules of student contribution amounts for places and tuition fees 48
19‑100................... Limits on fees for courses of study................................... 50
19‑102................... Meaning of fee.................................................................. 50
19‑105................... Meaning of tuition fee....................................................... 51
Subdivision 19‑G—The compact and academic freedom requirements 51
19‑110................... Table A providers and Table B providers must enter into mission based compacts 51
19‑115................... Provider to have policy upholding freedom of speech and academic freedom 52
Division 22—When does a body cease to be a higher education provider? 53
Subdivision 22‑A—General 53
22‑1....................... Cessation of approval as a provider.................................. 53
Subdivision 22‑AA—Revocation of approval if registration ceases or winding up order made 53
22‑2....................... Automatic revocation of approval if registration ceases.... 53
22‑3....................... Automatic revocation of approval if winding up order made 54
Subdivision 22‑B—Revocation for cause 55
22‑5....................... Revocation of approval if application for approval as a provider is false or misleading 55
22‑7....................... Revocation of approval if providing education and/or conducting research ceases to be the body’s principal purpose............................................................................. 55
22‑10..................... Revocation of approval if status or accreditation changes. 55
22‑15..................... Revocation of approval as a provider for a breach of conditions or the quality and accountability requirements.......................................................................................... 57
22‑17..................... Revocation of approval as a provider if provider etc. not a fit and proper person 58
Subdivision 22‑C—Process for decisions on revocation under Subdivision 22‑B 59
22‑20..................... Process for revoking approval.......................................... 59
22‑25..................... Determination retaining approval as a provider in respect of existing students 60
22‑30..................... Suspension of approval as a provider............................... 61
22‑32..................... Determination retaining approval as a provider in respect of existing students following suspension of approval............................................................................ 62
Subdivision 22‑D—Revocation of approval on application 62
22‑40..................... Revocation of approval as a provider on application......... 62
Subdivision 22‑E—Notice of approval or revocation ceasing to have effect under the Legislation Act 2003 63
22‑45..................... Notice of approval ceasing to have effect under the Legislation Act 2003 63
22‑50..................... Notice of revocation ceasing to have effect under the Legislation Act 2003 64
Part 2‑2—Commonwealth Grant Scheme 66
Division 27—Introduction 66
27‑1....................... What this Part is about...................................................... 66
27‑5....................... Commonwealth Grant Scheme Guidelines....................... 66
Division 30—Which higher education providers are eligible for a grant? 67
Subdivision 30‑A—Basic rules 67
30‑1....................... Eligibility for grants.......................................................... 67
Subdivision 30‑B—Allocation of places 68
30‑10..................... Allocation of places.......................................................... 68
30‑12..................... Designated higher education courses................................ 69
30‑15..................... Funding clusters............................................................... 69
30‑20..................... National priorities............................................................. 69
Subdivision 30‑C—Funding agreements 70
30‑25..................... Funding agreements.......................................................... 70
30‑27..................... Specification of maximum basic grant amounts in funding agreements 71
30‑28..................... Funding agreement to be published.................................. 73
Division 33—How are grant amounts worked out? 74
Subdivision 33‑A—Basic rule 74
33‑1....................... How grant amount is worked out..................................... 74
Subdivision 33‑B—Total basic grant amounts 74
33‑5....................... Total basic grant amounts................................................. 74
33‑10..................... Commonwealth contribution amounts and grandfathered Commonwealth contribution amounts 80
33‑30..................... Working out the number of Commonwealth supported places provided 82
33‑35..................... Funding clusters, or parts of funding clusters, in which units are included 84
Subdivision 33‑C—Adjustments 84
33‑37..................... Adjustments for breach of section 19‑37.......................... 84
Subdivision 33‑D—Special purpose advances 86
33‑40..................... Advances for certain purposes.......................................... 86
Division 36—What are the conditions of receiving a grant? 88
Subdivision 36‑A—General 88
36‑1....................... Condition of grant to comply with this Division............... 88
Subdivision 36‑B—Conditions relating to Commonwealth supported students 88
36‑5....................... Meaning of Commonwealth supported student................ 88
36‑10..................... Advice on whether a person is a Commonwealth supported student—general 89
36‑12..................... Advice on whether a person is a Commonwealth supported student—unreasonable study load 93
36‑13..................... Advice on whether a person is a Commonwealth supported student—failure to complete previous units.......................................................................................... 94
36‑15..................... Persons not to be advised they are Commonwealth supported 97
36‑20..................... Providers to repay amounts—special circumstances......... 98
36‑21..................... Special circumstances..................................................... 100
36‑22..................... Application period.......................................................... 100
36‑23..................... Dealing with applications................................................ 101
36‑24A.................. Providers to repay amounts—provider defaults.............. 101
36‑24B.................. Providers to repay amounts—no tax file numbers.......... 102
36‑24BA............... Providers to repay amounts—person’s SLE amount re‑credited in special circumstances 103
36‑24BB................ Providers to repay amounts—provider completes request for assistance 103
36‑24BC................ Providers to repay amounts—person not entitled to assistance 104
36‑24C.................. Secretary may act if provider is unable to....................... 105
Subdivision 36‑C—Conditions relating to enrolment 105
36‑25..................... Continued support for Commonwealth supported students 105
36‑30..................... Providers to enrol persons as Commonwealth supported students 106
36‑40..................... Providers to cancel enrolments in certain circumstances. 108
Subdivision 36‑D—Conditions relating to student contribution amounts 109
36‑45..................... Limits on student contribution amounts.......................... 109
36‑50..................... Provider must not accept up‑front payments of more than 90% of student contribution amounts 109
Subdivision 36‑E—Conditions relating to tuition fees 110
36‑55..................... Tuition fees for non‑Commonwealth supported students 110
Subdivision 36‑F—Other conditions 111
36‑60..................... Providers to meet the quality and accountability requirements 111
36‑65..................... Providers to comply with funding agreement................. 111
36‑70..................... Providers to comply with the Commonwealth Grant Scheme Guidelines 111
Part 2‑2A—Indigenous student assistance grants 112
Division 38—Indigenous student assistance grants 112
38‑1....................... What this Part is about.................................................... 112
38‑5....................... Indigenous Student Assistance Grants Guidelines......... 112
38‑10..................... Eligibility for grants under this Part................................ 112
38‑15..................... Guidelines may provide for grants.................................. 113
38‑20..................... Approval of grants.......................................................... 114
38‑25..................... Conditions on grants....................................................... 114
38‑30..................... Amounts of grants.......................................................... 114
38‑35..................... Amounts payable under this Part.................................... 115
38‑40..................... Rollover of grant amounts.............................................. 115
38‑45..................... Maximum payments for grants under this Part............... 116
Part 2‑3—Other grants 117
Division 41—Other grants 117
41‑1....................... What this Part is about.................................................... 117
41‑5....................... The Other Grants Guidelines.......................................... 117
41‑10..................... Eligibility for grants under this Part................................ 117
41‑15..................... Grants may be paid under programs............................... 119
41‑20..................... Approval of grants.......................................................... 120
41‑25..................... Conditions on grants....................................................... 120
41‑30..................... Amount of a grant........................................................... 121
41‑35..................... Amounts payable under this Part.................................... 121
41‑40..................... Rollover of grant amounts.............................................. 121
41‑45..................... Maximum payments for other grants under this Part...... 122
41‑95..................... Alternative constitutional bases....................................... 124
Part 2‑4—Commonwealth scholarships 126
Division 46—Commonwealth scholarships 126
46‑1....................... What this Part is about.................................................... 126
46‑5....................... The Commonwealth Scholarships Guidelines................ 126
46‑10..................... Classes of Commonwealth scholarships......................... 126
46‑13..................... Eligibility of students to receive directly‑paid standard Commonwealth scholarships 127
46‑15..................... Eligibility of higher education providers to receive grants for certain Commonwealth scholarships 127
46‑20..................... Other matters relating to Commonwealth scholarships... 128
46‑25..................... Condition of grants......................................................... 130
46‑30..................... Amounts payable under this Part.................................... 130
46‑35..................... Rollover of grant amounts.............................................. 130
46‑40..................... Maximum payments for Commonwealth scholarships... 131
Part 2‑5—Reduction and repayment of grants 134
Division 51—Introduction 134
51‑1....................... What this Part is about.................................................... 134
Division 54—In what circumstances may a grant be reduced or required to be repaid? 135
54‑1....................... Decision as to reduction or repayment of a grant............ 135
54‑5....................... Appropriateness of requiring reduction or repayment of grant 135
Division 57—What is the amount of a reduction or repayment? 137
57‑1....................... Reduction in amount of grants........................................ 137
57‑5....................... Amount of the repayment............................................... 137
Division 60—How are decisions reducing a grant or requiring repayment of a grant made? 138
60‑1....................... Procedure prior to decision............................................. 138
60‑5....................... Notification of decision................................................... 138
60‑10..................... When a decision takes effect........................................... 139
Chapter 3—Assistance to students 140
Division 65—Introduction 140
65‑1....................... What this Chapter is about.............................................. 140
Part 3‑1—Student Learning Entitlement 142
Division 70—Introduction 142
70‑1....................... What this Part is about.................................................... 142
70‑5....................... The Student Learning Entitlement Guidelines................. 142
Division 73—Student Learning Entitlement and SLE amount 143
73‑1....................... Student Learning Entitlement and SLE amount............... 143
73‑5....................... Ordinary SLE................................................................. 143
73‑10..................... Additional SLE............................................................... 144
73‑15..................... Lifelong SLE.................................................................. 144
73‑20..................... Student Learning Entitlement is not transferable............. 145
73‑25..................... Ceasing to be an eligible person...................................... 145
Division 76—Reduction of a person’s SLE amount 146
76‑1....................... Reduction of a person’s SLE amount............................. 146
Division 79—Re‑crediting a person’s SLE amount 148
Subdivision 79‑A—Re‑crediting a person’s SLE amount in special circumstances 148
79‑1....................... Re‑crediting a person’s SLE amount if special circumstances apply to the person 148
79‑5....................... Special circumstances..................................................... 149
79‑10..................... Application period.......................................................... 150
79‑15..................... Dealing with applications................................................ 150
Subdivision 79‑B—Re‑crediting a person’s SLE amount if the person’s HELP balance is re‑credited 151
79‑20..................... Re‑crediting a person’s SLE amount if the person’s HELP balance is re‑credited 151
Division 82—Unit of study covered by a person’s Student Learning Entitlement 153
82‑1....................... Unit of study covered by a person’s Student Learning Entitlement—person’s SLE amount not exceeded at enrolment........................................................................ 153
82‑5....................... Unit of study covered by a person’s Student Learning Entitlement—person’s SLE amount exceeded at enrolment........................................................................ 154
Part 3‑2—HECS‑HELP assistance 157
Division 87—Introduction 157
87‑1....................... What this Part is about.................................................... 157
87‑5....................... The HECS‑HELP Guidelines......................................... 157
Division 90—Who is entitled to HECS‑HELP assistance? 158
90‑1....................... Entitlement to HECS‑HELP assistance........................... 158
90‑5....................... Citizenship or residency requirements............................ 159
Division 93—How are amounts of HECS‑HELP assistance worked out? 161
93‑1....................... The amount of HECS‑HELP assistance for a unit of study 161
93‑5....................... Student contribution amounts......................................... 161
93‑10..................... Maximum student contribution amount for a place......... 162
93‑15..................... Up‑front payments.......................................................... 164
93‑20..................... Amounts of HECS‑HELP assistance, FEE‑HELP assistance and VET FEE‑HELP assistance must not exceed the HELP balance........................................................... 165
Division 96—How are amounts of HECS‑HELP assistance paid? 167
96‑1....................... Payments to higher education providers—no up‑front payment of student contribution amount 167
96‑2....................... Payments to higher education providers—partial up‑front payment of student contribution amount 167
96‑3....................... Payments to higher education providers—full up‑front payment of student contribution amount 170
96‑10..................... Implications for student’s liability to higher education provider for student contribution amount 170
Division 97—Re‑crediting of HELP balances in relation to HECS‑HELP assistance 171
97‑23..................... Purpose........................................................................... 171
97‑25..................... Main case of re‑crediting a person’s HELP balance in relation to HECS‑HELP assistance 171
97‑27..................... Re‑crediting a person’s HELP balance in relation to HECS‑HELP assistance—no tax file number 172
97‑30..................... Special circumstances..................................................... 172
97‑35..................... Application period.......................................................... 173
97‑40..................... Dealing with applications................................................ 173
97‑42..................... Re‑crediting a person’s HELP balance in relation to HECS‑HELP assistance—provider defaults 174
97‑45..................... Re‑crediting a person’s HELP balance in relation to HECS‑HELP assistance—provider completes request for assistance........................................................................ 175
97‑50..................... Re‑crediting a person’s HELP balance in relation to HECS‑HELP assistance—person not entitled to assistance........................................................................ 175
Part 3‑3—FEE‑HELP assistance 177
Division 101—Introduction 177
101‑1..................... What this Part is about.................................................... 177
101‑5..................... The FEE‑HELP Guidelines............................................ 177
Division 104—Who is entitled to FEE‑HELP assistance? 178
Subdivision 104‑A—Basic rules 178
104‑1..................... Entitlement to FEE‑HELP assistance.............................. 178
104‑1AA............... Student has unreasonable study load.............................. 181
104‑1A.................. Failure by a student to complete previous units with provider 182
104‑2..................... Failure by a student to complete previous units accessed through Open Universities Australia 182
104‑3..................... Failure by Open Universities Australia to comply with FEE‑HELP Guidelines etc. 183
104‑4..................... Failure by Open Universities Australia to set tuition fees and census date 184
104‑5..................... Citizenship or residency requirements............................ 186
104‑10................... Course requirements....................................................... 187
104‑12................... Secretary may act if provider is unable to....................... 188
Subdivision 104‑B—Re‑crediting HELP balances in relation to FEE‑HELP assistance 188
104‑25................... Main case of re‑crediting a person’s HELP balance in relation to FEE‑HELP assistance 188
104‑27................... Re‑crediting a person’s HELP balance in relation to FEE‑HELP assistance—no tax file number 190
104‑30................... Special circumstances..................................................... 191
104‑35................... Application period.......................................................... 192
104‑40................... Dealing with applications................................................ 192
104‑42................... Re‑crediting a person’s FEE‑HELP balance if provider defaults or person elects re‑crediting 193
104‑43................... Re‑crediting a person’s HELP balance in relation to FEE‑HELP assistance if not a genuine student 194
104‑44................... Re‑crediting a person’s HELP balance in relation to FEE‑HELP assistance if provider completes request for assistance etc................................................................... 195
Subdivision 104‑C—Bridging courses for overseas‑trained professionals 196
104‑45................... Meaning of bridging course for overseas‑trained professionals 196
104‑50................... Assessment statements................................................... 198
104‑55................... Meaning of assessing body............................................ 199
104‑60................... Meaning of listed professional occupations................... 199
104‑65................... Occupation includes part of an occupation...................... 199
104‑70................... Requirements for entry to an occupation......................... 200
Division 107—How are amounts of FEE‑HELP assistance worked out? 201
107‑1..................... The amount of FEE‑HELP assistance for a unit of study 201
107‑5..................... Up‑front payments.......................................................... 201
107‑10................... Amounts of FEE‑HELP assistance, HECS‑HELP assistance and VET FEE‑HELP assistance must not exceed the HELP balance........................................................... 201
Division 110—How are amounts of FEE‑HELP assistance paid? 204
110‑1..................... Payments........................................................................ 204
110‑5..................... Effect of HELP balance being re‑credited....................... 204
110‑10................... Implications for student’s liability to higher education provider for student tuition fee 205
Part 3‑4—OS‑HELP assistance 206
Division 115—Introduction 206
115‑1..................... What this Part is about.................................................... 206
115‑5..................... The OS‑HELP Guidelines.............................................. 206
Division 118—Who is entitled to OS‑HELP assistance? 207
118‑1..................... Entitlement to OS‑HELP assistance................................ 207
118‑2..................... Entitlement to supplementary amount for Asian language study 208
118‑5..................... Citizenship or residency requirements............................ 209
118‑7..................... Prior study requirements................................................. 210
118‑10................... Overseas study requirements.......................................... 210
118‑12................... Student identifier requirements....................................... 211
118‑15................... Selection of students for receipt of OS‑HELP assistance and supplementary amounts for Asian language study............................................................................... 211
Division 121—How are amounts of OS‑HELP assistance worked out? 213
121‑1..................... The amount of OS‑HELP assistance for a period........... 213
121‑5..................... Maximum OS‑HELP (overseas study) amount.............. 214
121‑10................... Minimum OS‑HELP (overseas study) amount............... 214
121‑15................... Maximum OS‑HELP (Asian language study) amount... 214
121‑20................... Minimum OS‑HELP (Asian language study) amount.... 215
Division 124—How are amounts of OS‑HELP assistance paid? 216
124‑1..................... Amounts of OS‑HELP assistance are lent to students.... 216
Part 3‑5—SA‑HELP assistance 217
Division 125—Introduction 217
125‑1..................... What this Part is about.................................................... 217
Division 126—Who is entitled to SA‑HELP assistance? 218
126‑1..................... Entitlement to SA‑HELP assistance................................ 218
126‑5..................... Citizenship or residency requirements............................ 219
126‑10................... Student identifier requirements....................................... 220
Division 127—How are amounts of SA‑HELP assistance worked out? 221
127‑1..................... The amount of SA‑HELP assistance for a student services and amenities fee 221
Division 128—How are amounts of SA‑HELP assistance paid? 222
128‑1..................... Payments to higher education providers of loans to students 222
128‑5..................... Repayment by higher education provider if student does not have tax file number 222
Part 3‑6—HELP balances 223
128‑7..................... What this Part is about.................................................... 223
128‑15................... HELP balances............................................................... 223
128‑20................... HELP loan limit.............................................................. 224
128‑25................... Re‑crediting HELP balance—discharge of HELP debt etc. 225
Chapter 4—Repayment of loans 226
Division 129—Introduction 226
129‑1..................... What this Chapter is about.............................................. 226
Part 4‑1—Indebtedness 227
Division 134—Introduction 227
134‑1..................... What this Part is about.................................................... 227
134‑5..................... The Very Remote HELP Debtor Guidelines................... 227
Division 137—How do HELP debts arise? 228
137‑1..................... HELP debts.................................................................... 228
137‑5..................... HECS‑HELP debts......................................................... 228
137‑10................... FEE‑HELP debts............................................................ 229
137‑15................... OS‑HELP debts.............................................................. 230
137‑16................... SA‑HELP debts.............................................................. 231
137‑18................... VET FEE‑HELP debts................................................... 232
137‑19................... Pre‑1 July 2019 VSL debts............................................ 233
137‑20................... HELP debt discharged by death...................................... 233
Division 140—How are accumulated HELP debts worked out? 234
Subdivision 140‑A—Outline of this Division 234
140‑1..................... Outline of this Division.................................................. 234
Subdivision 140‑B—Former accumulated HELP debts 235
140‑5..................... Working out a former accumulated HELP debt.............. 235
140‑10................... HELP debt indexation factor........................................... 238
140‑20................... Publishing HELP debt indexation factors....................... 240
Subdivision 140‑C—Accumulated HELP debts 240
140‑25................... Working out an accumulated HELP debt........................ 240
140‑30................... Rounding of amounts..................................................... 243
140‑35................... Accumulated HELP debt discharges earlier debts........... 243
140‑40................... Accumulated HELP debt discharged by death................ 243
Division 142—Special measures for very remote HELP debtors 244
142‑1..................... Meaning of very remote HELP debtor........................... 244
142‑5..................... Meaning of course of study in education........................ 245
142‑10................... Reducing indexation of accumulated HELP debts.......... 245
142‑15................... Reducing accumulated HELP debts................................ 246
142‑20................... Refunding amounts......................................................... 248
Part 4‑2—Discharge of indebtedness 249
Division 148—Introduction 249
148‑1..................... What this Part is about.................................................... 249
148‑3..................... The Overseas Debtors Repayment Guidelines................ 249
Division 151—How is indebtedness voluntarily discharged? 250
151‑1..................... Voluntary repayments in respect of debts....................... 250
151‑10................... Application of voluntary repayments.............................. 250
151‑15................... Refunding of payments................................................... 250
Division 154—How is indebtedness compulsorily discharged? 252
Subdivision 154‑A—Liability to repay amounts 252
154‑1..................... Liability to repay amounts............................................... 252
154‑5..................... Repayment income.......................................................... 252
154‑10................... Minimum repayment income.......................................... 253
154‑15................... Repayable debt for an income year................................. 253
Subdivision 154‑AA—Liability of overseas debtors to repay amounts 254
154‑16................... Liability of overseas debtors to repay amounts............... 254
154‑17................... Assessed worldwide income.......................................... 254
154‑18................... Notices to be given to the Commissioner........................ 255
Subdivision 154‑B—Amounts payable to the Commonwealth 256
154‑20................... Amounts payable to the Commonwealth........................ 256
154‑25................... Indexation....................................................................... 259
154‑30................... Publishing indexed amounts........................................... 260
154‑32................... Amounts payable to the Commonwealth by overseas debtors 260
Subdivision 154‑C—Assessments 261
154‑35................... Commissioner may make assessments........................... 261
154‑40................... Notification of notices of assessment of tax.................... 261
154‑45................... Commissioner may defer making assessments............... 261
154‑50................... Commissioner may amend assessments......................... 262
154‑55................... Higher education providers etc. to provide information to Commissioner 263
Subdivision 154‑D—Application of tax legislation 264
154‑60................... Returns, assessments, collection and recovery................ 264
154‑65................... Charges and civil penalties for failing to meet obligations 264
154‑70................... Pay as you go (PAYG) withholding.............................. 265
154‑80................... Pay as you go (PAYG) instalments................................ 265
154‑90................... Failures to comply with section 154‑18.......................... 265
Chapter 5—Administration 266
Division 159—Introduction 266
159‑1..................... What this Chapter is about.............................................. 266
159‑5..................... The Administration Guidelines....................................... 267
Part 5‑1—Payments by the Commonwealth 268
Division 164—Payments by the Commonwealth 268
164‑1..................... What this Part is about.................................................... 268
164‑5..................... Time and manner of payments........................................ 268
164‑10................... Advances........................................................................ 268
164‑15................... Overpayments of Commonwealth grants........................ 269
164‑17................... Overpayments of Commonwealth scholarships to students 269
164‑18................... Repayment of Commonwealth scholarships paid to students—breach of condition 270
164‑20................... Rounding of amounts..................................................... 270
Part 5‑1A—Tuition protection 271
Division 1—Preliminary 271
166‑1..................... What this Part is about.................................................... 271
166‑5..................... Application of this Part................................................... 271
166‑10................... When a higher education provider defaults in relation to a student 273
Division 2—Obligations when a provider defaults in relation to a student 274
166‑15................... Higher education providers must give notice of default to Higher Education Tuition Protection Director........................................................................................ 274
166‑20................... Higher education providers must give notice of default to affected students 275
166‑25................... Obligation on providers in case of default...................... 276
166‑26................... Failure to discharge obligations...................................... 280
166‑26A................ Providers to notify of outcome of discharge of obligations 280
166‑26B................ Student placement service............................................... 281
166‑27................... Obligations of providers to provide information about replacement courses 285
166‑30................... Obligations of replacement providers............................. 286
166‑32................... Obligations of replacement providers regarding enrolment information 287
166‑35................... Notification obligations where there is no replacement course or student elects re‑crediting 288
166‑40................... Other tuition protection information must be provided... 288
166‑45................... Continuing application of Part to certain persons............ 289
Part 5‑1B—Higher Education Tuition Protection Fund, Higher Education Tuition Protection Director and Higher Education Tuition Protection Fund Advisory Board 290
Division 1—Higher Education Tuition Protection Fund 290
167‑1..................... Name of Fund................................................................. 290
167‑5..................... Credits to the Higher Education Tuition Protection Fund 290
167‑10................... Purposes of the Higher Education Tuition Protection Fund 291
Division 2—Higher Education Tuition Protection Director 293
167‑15................... Higher Education Tuition Protection Director................. 293
167‑20................... Functions of the Higher Education Tuition Protection Director 293
167‑25................... Administrative provisions relating to the Higher Education Tuition Protection Director 295
Division 3—Higher Education Tuition Protection Fund Advisory Board 297
167‑30................... Establishment and membership....................................... 297
167‑35................... Function of the Higher Education Tuition Protection Fund Advisory Board 298
167‑40................... Administrative provisions relating to the Higher Education Tuition Protection Fund Advisory Board 298
Part 5‑2—Administrative requirements on higher education providers 302
Division 169—Administrative requirements on higher education providers 302
169‑1..................... What this Part is about.................................................... 302
169‑5..................... Notices............................................................................ 302
169‑10................... Correction of notices....................................................... 303
169‑15................... Charging student contribution amounts and tuition fees. 304
169‑17................... Requirements relating to withdrawal from units of study 306
169‑20................... Exempt students.............................................................. 306
169‑25................... Determining census dates and EFTSL values................. 308
169‑27................... Meaning of EFTSL......................................................... 309
169‑28................... Meaning of EFTSL value................................................ 309
169‑30................... Communications with the Commonwealth concerning students etc. 310
169‑35................... 6 week cut off for corrections affecting entitlement to Commonwealth assistance 310
Part 5‑3—Electronic communications 312
Division 174—Electronic communications 312
174‑1..................... What this Part is about.................................................... 312
174‑5..................... Guidelines may deal with electronic communications..... 312
Part 5‑4—Management of information 314
Division 179—Protection of personal information 314
179‑1..................... What this Division is about............................................. 314
179‑5..................... Meaning of personal information................................... 314
179‑10................... Use of personal information........................................... 314
179‑15................... Meanings of officer etc. and official employment............ 316
179‑20................... When information is disclosed in the course of official employment 318
179‑25................... Commissioner may disclose information........................ 321
179‑30................... Oath or affirmation to protect information...................... 321
179‑35................... Unauthorised access to, or modification of, personal information 322
179‑40................... Officer may use information........................................... 323
179‑45................... This Division does not limit disclosure or use of information 323
Division 180—Disclosure or use of Higher Education Support Act information 324
180‑1..................... What this Division is about............................................. 324
180‑5..................... Meaning of Higher Education Support Act information. 324
180‑10................... Disclosure and use by Commonwealth officers.............. 324
180‑15................... Disclosure of information to TEQSA............................. 324
180‑20................... Disclosure of information to the National VET Regulator 325
180‑23................... Disclosure of information to certain agencies................. 325
180‑25................... Disclosure of information to other bodies....................... 326
180‑28................... Disclosure and use of information for the HELP program 328
180‑30................... Use of information to conduct surveys........................... 329
180‑35................... This Division does not limit disclosure or use of information 330
Division 182—Other rules about information 331
182‑1..................... Minister may seek information from TEQSA and relevant VET regulator 331
Part 5‑5—Tax file numbers 332
Division 184—Introduction 332
184‑1..................... What this Part is about.................................................... 332
Division 187—What are the tax file number requirements for assistance under Chapter 3? 333
187‑1..................... Meeting the tax file number requirements....................... 333
187‑2..................... Who is an appropriate officer?........................................ 336
187‑5..................... Student to notify tax file number when issued................ 336
Division 190—Who can the Commissioner notify of tax file number matters? 338
190‑1..................... When tax file numbers are issued etc.............................. 338
190‑5..................... When tax file numbers are altered................................... 338
190‑10................... When tax file numbers are incorrectly notified—students with tax file numbers 339
190‑15................... When tax file numbers are incorrectly notified—students without tax file numbers 340
190‑20................... When applications are refused or tax file numbers are cancelled 341
Division 193—Other provisions relating to tax file numbers 342
193‑1..................... Giving information about tax file number requirements.. 342
193‑5..................... No entitlement to HECS‑HELP assistance for students without tax file numbers 345
193‑10................... No entitlement to FEE‑HELP assistance for students without tax file numbers 346
193‑15................... No entitlement to SA‑HELP assistance for students without tax file numbers 347
Part 5‑6—Indexation 349
Division 198—Indexation 349
198‑1..................... What this Part is about.................................................... 349
198‑5..................... The amounts that are to be indexed................................. 349
198‑10................... Indexing amounts........................................................... 350
198‑15................... Meaning of indexation factor.......................................... 350
198‑20................... Meaning of index number............................................... 351
Part 5‑7—Review of decisions 352
Division 203—Introduction 352
203‑1..................... What this Part is about.................................................... 352
Division 206—Which decisions are subject to review? 353
206‑1..................... Reviewable decisions etc................................................ 353
206‑5..................... Deadlines for making reviewable decisions.................... 359
206‑10................... Decision maker must give reasons for reviewable decisions 359
Division 209—How are decisions reconsidered? 360
209‑1..................... Reviewer of decisions..................................................... 360
209‑5..................... Reviewer may reconsider reviewable decisions.............. 360
209‑10................... Reconsideration of reviewable decisions on request....... 361
Division 212—Which decisions are subject to AAT review? 363
212‑1..................... AAT review of reviewable decisions.............................. 363
Part 5‑8—Regulatory powers 364
215‑1..................... What this Part is about.................................................... 364
215‑5..................... Monitoring powers......................................................... 364
215‑10................... Investigation powers....................................................... 365
215‑15................... Civil penalty provisions.................................................. 366
215‑20................... Infringement notices....................................................... 367
215‑25................... Enforceable undertakings................................................ 368
215‑30................... Injunctions...................................................................... 368
215‑35................... Appointment of investigators.......................................... 368
215‑40................... Delegation of regulatory powers..................................... 369
215‑45................... Contravening offence and civil penalty provisions......... 370
215‑50................... Certain references to higher education provider include references to agent 370
215‑55................... Other enforcement action................................................ 370
Chapter 7—Miscellaneous 371
238‑1A.................. Giving false or misleading information........................... 371
238‑1..................... Delegations by Secretary................................................ 371
238‑5..................... Delegations by Minister.................................................. 372
238‑6..................... Delegations by Higher Education Tuition Protection Director 372
238‑7..................... Review of operation of tuition protection........................ 373
238‑8..................... Extent of Commissioner’s general administration of this Act 374
238‑10................... Guidelines....................................................................... 374
238‑12................... Appropriation................................................................. 376
238‑15................... Regulations..................................................................... 376
Schedule 1A—VET FEE‑HELP Assistance Scheme 377
1............................ What this Schedule is about............................................ 377
Part 1—VET providers 378
Division 1—Introduction 378
2............................ What this Part is about.................................................... 378
3............................ The VET Guidelines....................................................... 378
Division 3—What is a VET provider? 379
Subdivision 3‑A—General 379
4............................ Meaning of VET provider............................................... 379
5............................ When a body becomes or ceases to be a VET provider.. 379
Subdivision 3‑B—How are bodies approved as VET providers? 379
6............................ Approval by the Minister................................................ 379
7............................ The VET tuition assurance requirements........................ 382
8............................ VET tuition assurance requirements exemption for approvals 382
9............................ Application..................................................................... 383
10.......................... Minister may seek further information............................ 383
11.......................... Minister to decide application......................................... 383
12.......................... Approvals are legislative instruments............................. 385
12A....................... Conditions of approval................................................... 385
12B........................ Minister to cause VET provider to be notified of change in condition of approval 385
12C........................ Variation of approval if body’s name changes................ 386
Division 4—What are the VET quality and accountability requirements? 387
Subdivision 4‑A—General 387
13.......................... The VET quality and accountability requirements........... 387
Subdivision 4‑B—The VET financial viability requirements 387
14.......................... Basic requirement........................................................... 387
15.......................... Financial information must be provided.......................... 387
16.......................... Minister to have regard to financial information............. 388
Subdivision 4‑C—The VET quality requirements 389
17.......................... Provider must maintain quality....................................... 389
Subdivision 4‑D—The VET fairness requirements 389
18.......................... Equal benefits and opportunity requirements.................. 389
19.......................... Student grievance and review requirements.................... 389
20.......................... Tuition assurance requirements....................................... 390
21.......................... VET providers to appoint review officers....................... 390
22.......................... Review officers not to review own decisions................. 391
23.......................... Procedures relating to personal information.................... 391
Subdivision 4‑E—The VET compliance requirements 391
23A....................... Basic requirement........................................................... 391
23B........................ Entry procedure for students........................................... 392
23C........................ Receiving requests for Commonwealth assistance.......... 392
24.......................... VET provider to provide statement of general information 394
25.......................... Notice of events that affect provider’s ability to comply with VET quality and accountability requirements........................................................................................ 394
25A....................... Copy of notice given to National VET Regulator about material changes 395
26.......................... Compliance assurance—provider................................... 395
26A....................... Compliance notices......................................................... 397
Subdivision 4‑F—The VET fee requirements 399
27.......................... Determining tuition fees for all students......................... 399
27A....................... Requirements in the VET Guidelines.............................. 400
28.......................... Schedules of VET tuition fees........................................ 400
Division 5—Revocation of VET provider approvals 403
29.......................... Revocation of approval................................................... 403
Division 5A—Civil penalty provisions and enforcement 405
Subdivision 5A‑A—Civil penalty provisions 405
39DA.................... Civil penalty provisions.................................................. 405
39DB..................... Civil penalty—publishing information that suggests VET FEE‑HELP assistance is not a loan etc. 405
39DC..................... Civil penalty—inappropriate inducements...................... 406
39DD.................... Appropriate and inappropriate inducements.................... 407
39DE..................... Civil penalty—failure to provide VET FEE‑HELP notices 408
39DF..................... Civil penalty—failure to comply with student requests... 409
39DG.................... Civil penalty—charging a fee etc. for a student to cancel an enrolment or request for assistance 409
39DH.................... Civil penalty—accepting requests for Commonwealth assistance etc. when student not entitled 410
39DI...................... Civil penalty—failure to advise about requests etc.......... 411
39DJ...................... Civil penalty—failure to apportion fees appropriately..... 412
39DK..................... Civil penalty—failure to publish fees.............................. 413
39DL..................... Civil penalty—failure to report data................................ 413
Subdivision 5A‑B—Infringement notices 414
39EA..................... Infringement notices....................................................... 414
39EB..................... Infringement officers...................................................... 414
39EC..................... Relevant chief executive.................................................. 414
Subdivision 5A‑C—Monitoring and investigation powers 415
39FA..................... Monitoring powers......................................................... 415
39FB..................... Monitoring powers—persons exercising relevant roles etc. 415
39FC..................... Investigation powers....................................................... 416
39FD..................... Investigation powers—persons exercising relevant roles etc. 416
Subdivision 5A‑D—Other matters 417
39GA.................... Appointment of investigators.......................................... 417
39GB..................... Functions and powers..................................................... 417
39GC..................... Delegation by relevant chief executive etc....................... 418
39GD.................... Other enforcement action................................................ 418
Part 2—VET FEE‑HELP assistance 420
Division 6—Introduction 420
40.......................... What this Part is about.................................................... 420
41.......................... The VET Guidelines....................................................... 420
Division 7—Who is entitled to VET FEE‑HELP assistance? 421
Subdivision 7‑A—Basic rules 421
43.......................... Entitlement to VET FEE‑HELP assistance..................... 421
44.......................... Citizenship or residency requirements............................ 424
45.......................... Course requirements....................................................... 425
45A....................... VET unit of study not undertaken as part of VET course of study 426
45B........................ Entry procedure requirements......................................... 426
45C........................ Request for Commonwealth assistance requirements..... 426
45D....................... Notional VET FEE‑HELP accounts............................... 428
45E........................ Effect of VET FEE‑HELP account being in deficit at the end of a calendar year 431
Subdivision 7‑B—Re‑crediting HELP balances in relation to VET FEE‑HELP assistance 432
46.......................... Main case of re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance 432
46A....................... Re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance—unacceptable conduct by provider or provider’s agent........................................... 434
46AA.................... Re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance—inappropriate conduct by provider or provider’s agent........................................... 436
46B........................ Re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance—VET FEE‑HELP account in deficit at the end of a calendar year................................. 439
47.......................... Re‑crediting a person’s HELP balance—no tax file number 441
48.......................... Special circumstances..................................................... 441
49.......................... Application period.......................................................... 441
50.......................... Dealing with applications................................................ 442
51.......................... Re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance if provider ceases to provide course of which unit forms part...................................... 442
51A....................... Implications for the student’s liability to the VET provider for the VET tuition fee 443
Division 8—How are amounts of VET FEE‑HELP assistance worked out? 444
52.......................... The amount of VET FEE‑HELP assistance for a VET unit of study 444
53.......................... Up‑front payments.......................................................... 444
54.......................... Amounts of VET FEE‑HELP assistance, HECS‑HELP assistance and FEE‑HELP assistance must not exceed the HELP balance........................................................... 444
Division 9—How are amounts of VET FEE‑HELP assistance paid? 447
55.......................... Payments........................................................................ 447
56.......................... Effect of HELP balance being re‑credited....................... 448
Part 3—Administration 450
Division 10—Introduction 450
57.......................... What this Part is about.................................................... 450
58.......................... The VET Guidelines....................................................... 450
Division 11—Payments by the Commonwealth 451
59.......................... What this Division is about............................................. 451
60.......................... Time and manner of payments........................................ 451
61.......................... Advances........................................................................ 451
61A....................... Amounts owed by VET providers may be set off against amounts payable under this Act or the VET Student Loans Act 2016............................................................... 454
62.......................... Rounding of amounts..................................................... 454
Division 12—Administrative requirements on VET providers 455
63.......................... What this Division is about............................................. 455
64.......................... Notices............................................................................ 455
65.......................... Correction of notices....................................................... 456
66.......................... Charging VET tuition fees.............................................. 457
67.......................... Determining census dates............................................... 457
68.......................... Communications with the Commonwealth concerning students etc. 458
Division 13—Electronic communications 460
69.......................... What this Division is about............................................. 460
70.......................... Guidelines may deal with electronic communications..... 460
Division 14—Management of information 462
71.......................... What this Division is about............................................. 462
72.......................... Meaning of VET personal information........................... 462
73.......................... Use of VET personal information................................... 462
74.......................... Meanings of VET officer etc. and official employment.... 464
75.......................... When information is disclosed in the course of official employment 464
76.......................... Commissioner may disclose information........................ 466
77.......................... Oath or affirmation to protect information...................... 467
78.......................... Unauthorised access to, or modification of, VET personal information 467
78A....................... Officer may use information........................................... 468
78B........................ This Division does not limit disclosure or use of information 468
Division 15—Tax file numbers 469
Subdivision 15‑A—Introduction 469
79.......................... What this Division is about............................................. 469
Subdivision 15‑B—What are the tax file number requirements for assistance under Part 2? 469
80.......................... Meeting the tax file number requirements....................... 469
81.......................... Who is an appropriate officer?........................................ 470
82.......................... Student to notify tax file number when issued................ 471
Subdivision 15‑C—Who can the Commissioner notify of tax file number matters? 471
83.......................... When tax file numbers are issued etc.............................. 471
84.......................... When tax file numbers are altered................................... 471
85.......................... When tax file numbers are incorrectly notified—students with tax file numbers 472
86.......................... When tax file numbers are incorrectly notified—students without tax file numbers 472
87.......................... When applications are refused or tax file numbers are cancelled 473
Subdivision 15‑D—Other provisions relating to tax file numbers 473
88.......................... Giving information about tax file number requirements.. 473
89.......................... No entitlement to VET FEE‑HELP assistance for students without tax file numbers 475
Division 16—Review of decisions 477
Subdivision 16‑A—Introduction 477
90.......................... What this Division is about............................................. 477
Subdivision 16‑B—Which decisions are subject to review? 477
91.......................... Reviewable VET decisions etc........................................ 477
92.......................... Deadlines for making reviewable VET decisions........... 479
93.......................... Decision maker must give reasons for reviewable VET decisions 479
Subdivision 16‑C—How are decisions reconsidered? 480
94.......................... Reviewer of decisions..................................................... 480
95.......................... Reviewer may reconsider reviewable VET decisions..... 480
96.......................... Reconsideration of reviewable VET decisions on request 481
Subdivision 16‑D—Which decisions are subject to AAT review? 482
97.......................... AAT review of reviewable VET decisions..................... 482
Part 4—Miscellaneous 483
97A....................... Compensation for acquisition of property....................... 483
98.......................... Delegations by Secretary................................................ 483
99.......................... VET Guidelines.............................................................. 484
Schedule 1—Dictionary 485
1............................ Definitions...................................................................... 485
2............................ Index numbers................................................................ 512
Endnotes 514
Endnote 1—About the endnotes 514
Endnote 2—Abbreviation key 516
Endnote 3—Legislation history 517
Endnote 4—Amendment history 534
An Act relating to the funding of higher education, and for other purposes
Chapter 1—Introduction
Division 1—Preliminary
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 (paragraph (a) applies) |
| 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 (paragraph (a) applies) |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
1‑10 Identifying defined terms
(1) Many of the terms in this Act are defined in the Dictionary in Schedule 1.
(2) Most of the terms that are defined in the Dictionary in Schedule 1 are identified by an asterisk appearing at the start of the term: as in “*accredited course”. The footnote with the asterisk contains a signpost to the Dictionary.
(3) An asterisk usually identifies the first occurrence of a term in a section (if not divided into subsections), subsection or definition. Later occurrences of the term in the same provision are not usually asterisked.
(4) Terms are not asterisked in headings, notes, examples, explanatory tables, guides, outline provisions or diagrams.
(5) If a term is not identified by an asterisk, disregard that fact in deciding whether or not to apply to that term a definition or other interpretation provision.
(6) The following basic terms used throughout the Act are not identified with an asterisk:
| Terms that are not identified |
| Item | This term: | is defined in: |
| 1 | enrol | Schedule 1 |
| 2 | higher education provider | section 16‑1 |
| 3 | student | Schedule 1 |
| 4 | unit of study | Schedule 1 |
Division 2—Objects
2‑1 Objects of this Act
The objects of this Act are:
(a) to support a higher education system that:
(i) is characterised by quality, diversity and equity of access; and
(ii) contributes to the development of cultural and intellectual life in Australia; and
(iii) is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; and
(iv) promotes and protects freedom of speech and academic freedom; and
(b) to support the distinctive purposes of universities, which are:
(i) the education of persons, enabling them to take a leadership role in the intellectual, cultural, economic and social development of their communities; and
(ii) the creation and advancement of knowledge; and
(iii) the application of knowledge and discoveries to the betterment of communities in Australia and internationally; and
(iv) the engagement with industry and the local community to enable graduates to thrive in the workforce;
recognising that universities are established under laws of the Commonwealth, the States and the Territories that empower them to achieve their objectives as autonomous institutions through governing bodies that are responsible for both the university’s overall performance and its ongoing independence; and
(c) to strengthen Australia’s knowledge base, and enhance the contribution of Australia’s research capabilities to national economic development, international competitiveness and the attainment of social goals; and
(d) to support students undertaking higher education and certain vocational education and training.
Division 3—Overview of this Act
3‑1 General
This Act primarily provides for the Commonwealth to give financial support for higher education and certain vocational education and training:
(a) through grants and other payments made largely to higher education providers; and
(b) through financial assistance to students (usually in the form of loans).
3‑5 Grants for higher education assistance etc. (Chapter 2)
(1) Chapter 2 sets out who are higher education providers, and provides for the following grants and payments:
(a) grants under the Commonwealth Grant Scheme;
(aa) grants for assisting Indigenous persons;
(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.
Chapter 3 also deals with a person’s Student Learning Entitlement.
3‑15 Repayment of loans (Chapter 4)
Chapter 4 sets out how debts are incurred and worked out in relation to loans made under Chapter 3, and provides for their repayment.
3‑20 Administration (Chapter 5)
Chapter 5 provides for several administrative matters relating to the operation of this Act.
3‑30 VET FEE‑HELP Assistance Scheme (Schedule 1A)
Schedule 1A provides for financial assistance to students undertaking certain accredited vocational education and training (VET) courses.
Division 5—Application of Act to Table C providers
5‑1 Application of Act to Table C providers
General application to Table C providers
(1) The provisions of this Act not listed in the table in subsection (2) or in subsection (4) apply to a *Table C provider, the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
Modified application to Table C providers
(2) The provisions of this Act listed in the table apply to a *Table C provider in the way set out in the table.
| Application of Act to Table C providers |
| Item | Provision | Application |
| 1 | Subdivision 19‑C (quality requirements) | Applies to the *Australian branch of the provider. However, *TEQSA may need to assess the overall performance of the provider as it relates to that branch. |
| 2 | Subdivision 19‑D (fairness requirements) | Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
| 2A | Section 19‑66A (*tuition protection requirements) | Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. |
| 3 | Subdivision 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 as follows:
(a) Part 2‑2 (Commonwealth Grant Scheme);
(aa) Part 2‑2A (Indigenous student assistance grants);
(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 6—Schedule 1A
6‑1 Schedule 1A
Schedule 1A has effect.
Chapter 2—Grants for higher education assistance etc.
Division 8—Introduction
8‑1 What this Chapter is about
This Chapter provides for who are higher education providers, and for 4 kinds of grants to be made.
Part 2‑1 sets out who are higher education providers (universities, self‑accrediting entities and non self‑accrediting entities), the quality and accountability requirements for higher education providers and how bodies cease to be higher education providers.
Note: Except in very limited cases, only higher education providers can get grants under this Chapter.
The 4 kinds of grants available under this Chapter are:
• grants under Part 2‑2 (Commonwealth Grant Scheme) to certain higher education providers. These grants are paid in relation to Commonwealth supported places. Grants are made subject to conditions; and
• grants under Part 2‑2A to Table A providers and Table B providers to assist Indigenous persons; and
• other grants under Part 2‑3 to higher education providers and other bodies corporate for a variety of purposes; and
• grants for Commonwealth scholarships to certain higher education providers under Part 2‑4.
The amount of a grant may be reduced, or an amount paid may be required to be repaid, if the recipient breaches a quality and accountability requirement or a condition of the grant (see Part 2‑5).
Note: A body’s approval as a higher education provider may be suspended or revoked for such a breach.
This Chapter also provides for the direct payment to students of certain Commonwealth scholarships under Part 2‑4.
Part 2‑1—Higher education providers
Division 13—Introduction
13‑1 What this Part is about
A body generally has to be approved as a higher education provider before it can receive grants, or its students can receive assistance, under this Act. Listed providers (universities and certain self‑accrediting entities) have that approval upon commencement of this Act. Table C providers have that approval from the time they are included in Table C. Bodies that do not have that automatic approval, or whose approval has been revoked, have to apply for approval.
Higher education providers are subject to the quality and accountability requirements.
A body’s approval as a higher education provider may be revoked in circumstances such as breach of a quality and accountability requirement.
13‑5 The Higher Education Provider Guidelines
Higher education providers and the *quality and accountability requirements are also dealt with in the Higher Education Provider Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note: The Higher Education Provider Guidelines are made by the Minister under section 238‑10.
Division 16—What is a higher education provider?
Subdivision 16‑A—General
16‑1 Meaning of higher education provider
(1) A higher education provider is a body corporate that is approved under this Division.
(2) Despite subsection (1), a body other than a body corporate may be approved under this Division as a higher education provider if the body is covered by an exemption under subsection (3).
(3) The Minister may, in writing, exempt a body for the purposes of this section if the body is established by or under a law of the Commonwealth, a State or a Territory.
(4) If the Minister exempts a body under subsection (3), references in this Act, other than in this section, to a body corporate are taken to include the body.
(5) An exemption given under this section is not a legislative instrument.
16‑5 When a body becomes or ceases to be a higher education provider
(1) A *listed provider is taken to be approved as a higher education provider from the commencement of this Act.
(1A) A *Table C provider is taken to be approved as a higher education provider from the commencement of the provision that included the provider in Table C in section 16‑22.
(2) A body corporate:
(a) that is not a *listed provider or a *Table C provider; or
(b) that is a listed provider or a Table C provider that has previously ceased to be a higher education provider;
becomes a provider if approved by the Minister under section 16‑25.
(3) A higher education provider ceases to be a provider if the provider’s approval is revoked or suspended under Division 22 or the notice of the provider’s approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.
Subdivision 16‑B—Which bodies are listed providers?
16‑10 Listed providers
The following are listed providers:
(a) a *Table A provider;
(b) a *Table B provider.
16‑15 Table A providers
(1) The following are Table A providers:
| Table A providers |
| Providers |
| Australian National University |
| Central Queensland University |
| Charles Darwin University |
| Charles Sturt University |
| Curtin University |
| Deakin University |
| Edith Cowan University |
| Federation University Australia |
| Flinders University |
| Griffith University |
| James Cook University |
| La Trobe University |
| Macquarie University |
| Monash University |
| Murdoch University |
| Queensland University of Technology |
| Royal Melbourne Institute of Technology |
| Southern Cross University |
| Swinburne University of Technology |
| The University of Adelaide |
| The University of Melbourne |
| The University of Notre Dame Australia |
| The University of Queensland |
| The University of Sydney |
| The University of Western Australia |
| University of Canberra |
| University of Newcastle |
| University of New England |
| University of New South Wales |
| University of South Australia |
| University of Southern Queensland |
| University of Tasmania |
| University of Technology Sydney |
| University of the Sunshine Coast |
| University of Wollongong |
| Victoria University |
| Western Sydney University |
| Australian Catholic University Limited |
| Batchelor Institute of Indigenous Tertiary Education |
(2) However, a body is not a Table A provider if its approval as a higher education provider is revoked or suspended.
16‑20 Table B providers
(1) The following are Table B providers:
| Table B providers |
| Providers |
| Bond University Limited |
| University of Divinity |
| Torrens University Australia Ltd |
(2) However, a body is not a Table B provider if its approval as a higher education provider is revoked or suspended.
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 |
(2) However, a body is not a Table C provider if its approval as a higher education provider is revoked or suspended.
Note: A Table C provider is not entitled to receive a grant under this Chapter: see section 5‑1.
Subdivision 16‑C—How are bodies approved as higher education providers?
16‑25 Approval by the Minister
(1) The Minister, in writing, may approve a body corporate as a higher education provider if:
(a) the body:
(i) is established under the law of the Commonwealth, a State or a Territory; and
(ii) carries on business in Australia; and
(iii) has its central management and control in Australia; and
(aa) subject to subsection (2), the body’s principal purpose is, or is taken to be, either or both of the following:
(i) to provide education;
(ii) to conduct research; and
(b) the body is:
(i) an *Australian university; or
(ii) a *self‑accrediting entity; or
(iii) a *non self‑accrediting entity; and
(c) the Minister is satisfied that the body will meet the *tuition protection requirements (if applicable); and
(da) the body offers at least one *course of study that leads to a *higher education award; and
(db) the course of study is an *accredited course in relation to the body; and
(e) the body applies for approval as provided for in section 16‑40; and
(f) the Minister is satisfied that the body is willing and able to meet the *quality and accountability requirements; and
(fa) the body complies with any requirements set out in the Higher Education Provider Guidelines; and
(fb) the Minister is satisfied that the body has sufficient experience in the provision of higher education; and
(g) the Minister is satisfied that:
(i) the body; and
(ii) each person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body’s affairs;
is a fit and proper person.
(2) For the purpose of paragraph (1)(aa), the Minister may determine that a body’s principal purpose is taken to be either or both of the following:
(a) to provide education;
(b) to conduct research;
if the Minister is satisfied that any of the body’s purposes do not conflict with the body’s purpose of providing education and/or conducting research.
(2A) For the purposes of paragraph (1)(fb), the Minister may have regard to the following:
(a) whether the body has been a *registered higher education provider for 3 or more years;
(b) the history of the body, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the body’s affairs, in delivering higher education;
(c) the scope of courses and level of qualifications the body, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the body’s affairs, has experience in providing.
(3) The Minister must, in deciding whether he or she is satisfied that a person is a fit and proper person, take into account the matters specified in an instrument under subsection (4). The Minister may take into account any other matters he or she considers relevant.
(4) The Minister must, by legislative instrument, specify matters for the purposes of subsection (3).
16‑27 Body must be a registered higher education provider
Despite section 16‑25, the Minister must not approve a body corporate as a higher education provider unless the body is a *registered higher education provider.
16‑30 The tuition protection requirements
The tuition protection requirements are:
(a) the requirements set out in Part 5‑1A (including in the Higher Education Provider Guidelines made for the purposes of that Part); and
(b) the requirements set out in the Higher Education Provider Guidelines for the purposes of this paragraph.
16‑40 Application
(1) A body corporate that is a *registered higher education provider may apply, in writing, to the Minister for approval as a higher education provider under this Act.
(1A) However, if:
(a) the body corporate made an application (the earlier application) under subsection (1); and
(b) the Minister decided not to approve the earlier application;
the body corporate cannot make another application under that subsection within 6 months after the day on which notice of the decision on the earlier application was given to the body corporate.
(2) The application:
(a) must be in the form approved by the Minister; and
(b) must be accompanied by such information as the Minister requests; and
(c) must be accompanied by the fee (if any) prescribed by, or worked out in accordance with the method prescribed by, the Higher Education Provider Guidelines.
Note: The guidelines may prescribe different fees, or methods, for applications made by different kinds of applicant: see subsection 33(3A) of the Acts Interpretation Act 1901.
(3) A fee prescribed, or worked out in accordance with a method prescribed, for the purposes of subsection (2) must not be such as to amount to taxation.
16‑45 Minister may seek further information
(1) For the purposes of determining an application, the Minister may, by notice in writing, require an applicant to provide such further information as the Minister directs within the period specified in the notice.
(2) If an applicant does not comply with a requirement under subsection (1), the application is taken to have been withdrawn.
(3) A notice under this section must include a statement about the effect of subsection (2).
16‑50 Minister to decide application
(1) The Minister must:
(a) decide an application for approval as a higher education provider; and
(b) cause the applicant to be notified in writing whether or not the applicant is approved as a higher education provider.
(2) For the purposes of paragraph 16‑25(1)(f), the Minister may be satisfied that a body corporate is willing and able to meet the *quality and accountability requirements if the body gives the Minister such written undertakings as the Minister requires.
(3) The Minister’s decision must be made:
(a) within 90 days after receiving the application; or
(b) if further information is requested under section 16‑45—within 60 days after the end of the period within which the information was required to be provided under that section;
whichever is the later.
(3A) However, contravention of subsection (3) does not affect the Minister’s power to decide the application or the Minister’s obligation to comply with subsection (1).
(4) If the Minister decides that an applicant is approved as a higher education provider, the notice must also contain such information as is specified in the Higher Education Provider Guidelines as information that must be provided to an applicant upon approval as a higher education provider.
16‑55 Approvals are legislative instruments
(1) A notice of approval under paragraph 16‑50(1)(b) is a legislative instrument.
(2) A decision of the Minister to approve a body corporate as a higher education provider takes effect when the notice of approval commences under the Legislation Act 2003.
Note: Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.
16‑60 Conditions of approval
(1) The Minister may impose conditions on a body corporate’s approval as a higher education provider. Such conditions need not be imposed at the time notice of approval is given to the provider.
(2) The Minister may vary a condition imposed under subsection (1).
(3) The conditions may include the following:
(a) that a specified limit on the total number of students entitled to *FEE‑HELP assistance applies to the provider for a specified period;
(b) that a specified limit on the total amount of FEE‑HELP assistance payable to the provider applies to the provider for a specified period;
(c) that FEE‑HELP assistance is payable only in relation to specified units of study offered by the higher education provider;
(d) that FEE‑HELP assistance is not payable in relation to specified units of study offered by the higher education provider;
(e) that units of study provided in a specified manner or by a specified mode of delivery by the higher education provider are units in relation to which FEE‑HELP assistance is unavailable.
(4) Subsection (3) does not limit the conditions the Minister may impose on the approval.
16‑65 Minister to cause higher education provider to be notified of change in condition of approval
The Minister must, within 30 days of his or her decision to impose or vary a condition on a higher education provider, cause the provider to be notified, in writing, of:
(a) the decision; and
(b) the reasons for the decision; and
(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 commences under the Legislation Act 2003.
Note: Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.
Division 19—What are the quality and accountability requirements?
Subdivision 19‑A—General
19‑1 The quality and accountability requirements
The quality and accountability requirements are:
(a) the *financial viability requirements (see Subdivision 19‑B); and
(b) the *quality requirements (see Subdivision 19‑C); and
(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‑B—The financial viability requirements
19‑5 Basic requirement
A higher education provider:
(a) must be financially viable; and
(b) must be likely to remain financially viable.
19‑10 Financial information must be provided
(1) A higher education provider must give to the Minister a financial statement for each *annual financial reporting period for the provider in which:
(a) the provider receives assistance under this Chapter; or
(b) a student of the provider receives assistance under Chapter 3.
(2) The statement:
(a) must be in the form approved by the Minister; and
(ab) must comply with any requirements prescribed by the Higher Education Provider Guidelines; and
(b) must be provided together with a report on the statement by an independent *qualified auditor; and
(c) must be provided within 6 months after the end of the *annual financial reporting period for which the statement was given.
(2A) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, requirements made for the purposes of paragraph (2)(ab) of this section may make different provision in relation to different kinds of providers, circumstances or any other matter.
(3) An annual financial reporting period, for a higher education provider, is the period of 12 months:
(a) to which the provider’s accounts relate; and
(b) that is notified in writing to the Minister as the provider’s annual financial reporting period.
19‑12 Minister to have regard to financial information and matters prescribed in Higher Education Guidelines
In determining whether a higher education provider is financially viable, and likely to remain so, the Minister must have regard to:
(a) any financial statement provided by the provider under section 19‑10; and
(b) the matters (if any) prescribed by the Higher Education Provider Guidelines.
Subdivision 19‑C—The quality requirements
19‑15 Provider must maintain quality
A higher education provider must operate, and continue to operate, at a level of quality:
(a) that meets the Threshold Standards (within the meaning of the *TEQSA Act); and
(b) that meets the requirements imposed by or under the TEQSA Act on, or in relation to, the provider.
Subdivision 19‑D—The fairness requirements
19‑30 Basic requirement
A higher education provider must treat fairly:
(a) all of its students; and
(b) all of the persons seeking to enrol with the provider.
19‑35 Benefits and opportunities must be available equally to all students
(1) A higher education provider that receives assistance under this Chapter in respect of a student, or a class of students, must ensure that the benefits of, and the opportunities created by, the assistance are made equally available to all such students, or students in such class, in respect of whom that assistance is payable.
(2) A higher education provider that receives:
(a) any grant or allocation under this Chapter; or
(b) any payment under section 124‑1 on account of amounts of *OS‑HELP assistance;
must have open, fair and transparent procedures that, in the provider’s reasonable view, are based on merit for making decisions about the selection of students who are to benefit from the grant, allocation or payment.
(3) Subsection (2) does not prevent a higher education provider taking into account, in making such decisions about the selection of students, educational disadvantages that a particular student has experienced.
(4) A higher education provider that receives any payment under section 110‑1 on account of amounts of *FEE‑HELP assistance for a unit of study must have open, fair and transparent procedures that, in the provider’s reasonable view, are based on merit for making decisions about:
(a) the selection, from among the persons who seek to enrol with the provider in that unit of study, of persons to enrol; and
(b) the treatment of students undertaking that unit of study.
(5) Subsection (4) does not prevent a higher education provider taking into account, in making decisions mentioned in that subsection, educational disadvantages that a particular student has experienced.
19‑36 Misrepresenting assistance under Chapter 3
A higher education provider must not represent, whether by publishing or otherwise, that assistance payable under Chapter 3:
(a) is not a loan; or
(b) does not have to be repaid.
Civil penalty: 240 penalty units.
19‑36A Offering certain inducements
(1) A higher education provider must not offer or provide a benefit, or cause a benefit to be offered or provided, if the benefit would be reasonably likely to induce a person to make a *request for Commonwealth assistance in relation to enrolling in a unit of study with the provider.
Civil penalty: 120 penalty units.
(2) Subsection (1) does not apply in relation to a benefit specified in the Higher Education Provider Guidelines.
19‑36B Engaging in cold‑calling
(1) This section applies if a higher education provider cold‑calls another person to market, advertise or promote a unit of study or a *course of study.
(2) The higher education provider must not mention the possible availability of assistance payable under Chapter 3 for students undertaking the unit of study or *course of study.
Civil penalty: 60 penalty units.
(3) For the purposes of this section, cold‑calling includes making unsolicited contact with a person:
(a) in person; or
(b) by telephone, email or other form of electronic communication.
(4) The Higher Education Provider Guidelines may set out conduct that is taken to be cold‑calling for the purposes of this section.
19‑36C Use of third party contact lists
(1) This section applies if a higher education provider:
(a) receives a person’s contact details from another person; and
(b) contacts the student to market, advertise or promote a unit of study or a *course of study, or enrol the student in a unit of study or course of study.
(2) The higher education provider must not mention the possible availability of assistance payable under Chapter 3 for students undertaking the unit of study or *course of study.
Civil penalty: 60 penalty units.
(3) Subsection (2) does not apply in circumstances specified in the Higher Education Provider Guidelines.
19‑36D Other marketing requirements
(1) The Higher Education Provider Guidelines may set out requirements in relation to the marketing of courses in circumstances where assistance may be payable by the Commonwealth under Chapter 3.
(2) A higher education provider contravenes this subsection if the provider:
(a) is subject to a requirement under subsection (1); and
(b) fails to comply with the requirement.
Civil penalty: 60 penalty units.
19‑36E Requirements relating to requests for Commonwealth assistance
A higher education provider must not complete any part of a *request for Commonwealth assistance that a student is required to complete.
Civil penalty: 120 penalty units.
19‑37 Requiring membership of certain organisations or payment of certain amounts
(1) A higher education provider must not:
(a) require a person to be or to become a member of an organisation of students, or of students and other persons; or
(b) require a person enrolled with, or seeking to enrol with, the provider to pay to the provider or any other entity an amount in respect of an organisation of students, or of students and other persons;
unless the person has chosen to be or to become a member of the organisation.
(2) A higher education provider must not require a person enrolled with, or seeking to enrol with, the provider to pay to the provider or any other entity an amount for the provision to students of an amenity, facility or service that is not of an academic nature, unless the person has chosen to use the amenity, facility or service.
(3) Subsection (2) does not apply to an amount that the higher education provider requires the person to pay if the amount is for goods or services that:
(a) are essential for the course of study in which the person is enrolled or seeking to enrol; and
(b) the person has the choice of acquiring from, but does not acquire from, a supplier other than the higher education provider; and
(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.
19‑42 Assessment of students as academically suited
(1) Before enrolling a student in a unit of study, a higher education provider must assess the student as academically suited to undertake the unit concerned.
Civil penalty: 120 penalty units.
(2) The assessment for the purposes of subsection (1) must be done in accordance with any requirements specified in the Higher Education Provider Guidelines.
19‑45 Student grievance and review procedures
Must have grievance and review procedures
(1) A higher education provider must have:
(a) a grievance procedure for dealing with complaints by the provider’s students, and persons who seek to enrol in *courses of study with the provider, relating to non‑academic matters; and
(b) a grievance procedure for dealing with complaints by the provider’s students relating to academic matters; and
(c) a review procedure for dealing with review of decisions made by the provider:
(i) under subsection 36‑12(2), paragraph 36‑13(2)(b) or subsection 36‑20(1); 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 subsection 36‑12(2), paragraph 36‑13(2)(b) or subsection 36‑20(1); or
(b) relating to assistance under Chapter 3;
including procedures that are to be followed by *review officers when reviewing those decisions.
Provider to comply with procedures
(5) The provider must comply with its grievance and review procedures.
Civil penalty: 60 penalty units.
Provider to provide information about procedures
(6) The provider must publish, and make publicly available, up to date information setting out the procedures.
Provider to provide information about other complaint mechanisms
(7) The provider must publish information about any other complaint mechanisms available to complain about the provider’s decisions.
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 subsection 36‑12(2), paragraph 36‑13(2)(b) or subsection 36‑20(1); or
(b) relating to assistance under Chapter 3.
Note: The Secretary may delegate to a review officer of a higher education provider the power to reconsider decisions of the provider under Division 209: see subsection 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 subsection 36‑12(2), paragraph 36‑13(2)(b) or subsection 36‑20(1); 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 subsection 36‑12(2), paragraph 36‑13(2)(b), subsection 36‑20(1) or Chapter 3 or 4.
(2) A higher education provider must have a procedure under which a student enrolled with the provider may apply to the provider for, and receive, a copy of *personal information that the provider holds in relation to that student.
(3) The provider must comply with:
(a) the requirements of the Higher Education Provider Guidelines relating to *personal information in relation to students; and
(b) the procedure referred to in subsection (2).
Subdivision 19‑E—The compliance requirements
19‑65 Basic requirements
(1) A higher education provider must comply with:
(a) this Act and the regulations; and
(b) the Guidelines made under section 238‑10 that apply to the provider; and
(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.
19‑66 Higher education provider charge
(1) A higher education provider must pay the following when it is due and payable by the provider:
(a) *higher education provider charge;
(b) any penalty for late payment of higher education provider charge.
Note: Higher education provider charge is imposed by the Higher Education Support (Charges) Act 2019.
(2) The Higher Education Provider Guidelines may make provision for, or in relation to, all or any of the following matters:
(a) the issue of notices setting out the amount of *higher education provider charge payable by a provider;
(b) when higher education provider charge is due and payable;
(c) the issue of notices extending the time for payment of higher education provider charge;
(d) penalties for late payment of higher education provider charge;
(e) to whom higher education provider charge and any penalties for late payment are payable;
(f) the refund, remission or waiver of higher education provider charge or penalties for late payment;
(g) the review of decisions made under the Higher Education Provider Guidelines in relation to the collection or recovery of higher education provider charge;
(h) any other matters relating to the collection or recovery of higher education provider charge.
19‑66A Tuition protection requirements
(1) A higher education provider to whom Part 5‑1A applies must comply with the *tuition protection requirements.
Note: See section 166‑5 for the providers to whom Part 5‑1A applies.
Civil penalty: 60 penalty units.
(2) A higher education provider to whom Part 5‑1A applies must pay the following when it is due and payable by the provider:
(a) *HELP tuition protection levy;
(b) any penalty for late payment of HELP tuition protection levy.
Note: HELP tuition protection levy is imposed by the Higher Education Support (HELP Tuition Protection Levy) Act 2020.
(3) The Higher Education Provider Guidelines may make provision for, or in relation to, all or any of the following matters:
(a) the issue of notices setting out the amount of *HELP tuition protection levy payable by a provider;
(b) when HELP tuition protection levy is due and payable;
(c) the issue of notices extending the time for payment of HELP tuition protection levy;
(d) penalties for late payment of HELP tuition protection levy;
(e) to whom HELP tuition protection levy and any penalties for late payment are payable;
(f) the refund, remission or waiver of HELP tuition protection levy or penalties for late payment;
(g) the review of decisions made under the Higher Education Provider Guidelines in relation to the collection or recovery of HELP tuition protection levy;
(h) any other matters relating to the collection or recovery of HELP tuition protection levy.
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.
(4) A higher education provider contravenes this subsection if the provider:
(a) is subject to a requirement under this section; and
(b) does not comply with the requirement.
Civil penalty: 60 penalty units.
19‑71 Co‑operation with HESA and TEQSA investigators
(1) A higher education provider must co‑operate with *HESA investigators and *TEQSA investigators who are performing functions or exercising powers under this Act.
(2) A higher education provider must not obstruct or hinder a *HESA investigator or a *TEQSA investigator who is performing functions or exercising powers under this Act.
Civil penalty: 60 penalty units.
19‑72 Providers must keep records
(1) A higher education provider must keep records of a kind, in the manner and for the period specified in the Higher Education Provider Guidelines.
(2) A higher education provider contravenes this subsection if the provider:
(a) is subject to a requirement under this section; and
(b) does not comply with the requirement.
Civil penalty: 60 penalty units.
19‑73 Providers must publish information
(1) A higher education provider must publish information of the kind, in the manner and within the period specified in the Higher Education Provider Guidelines.
(2) A higher education provider contravenes this subsection if the provider:
(a) is subject to a requirement under this section; and
(b) does not comply with the requirement.
Civil penalty: 60 penalty units.
19‑75 Notice of events that affect provider’s ability to comply with conditions of Commonwealth assistance
A higher education provider must by writing inform the Minister of any event affecting:
(a) the provider; or
(b) a *related body corporate of the provider;
that may significantly affect the provider’s capacity to meet the conditions of grants under this Chapter or the *quality and accountability requirements.
Civil penalty: 60 penalty units.
19‑77 Notice of events affecting accreditation
A higher education provider must by writing inform the Minister of any event affecting:
(a) the provider; or
(b) a *related body corporate of the provider;
that relates to:
(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.
Civil penalty: 60 penalty units.
19‑78 Notice of events significantly affecting TEQSA registration
(1) A higher education provider must by writing inform the Minister of any event significantly affecting:
(a) the provider; or
(b) a *related body corporate of the provider;
that relates to the provider’s registration as a *registered higher education provider.
Civil penalty: 60 penalty units.
(2) If a higher education provider informs the Minister of an event under section 19‑77, the provider need not inform the Minister of the event under this section.
19‑80 Compliance assurance
(1) The Minister may require a higher education provider to be audited as to compliance with any one or more of the following requirements:
(a) the *financial viability requirements;
(b) the *fairness requirements;
(c) the *compliance requirements;
(d) the *contribution and fee requirements.
(2) The audit must be conducted:
(a) by a body determined in writing by the Minister; and
(b) at such time or times, and in such manner, as the Minister requires.
(2A) To avoid doubt, if the Minister makes a determination under subsection (2) in relation to *TEQSA, the determination is not a direction for the purposes of subsection 136(2) of the *TEQSA Act.
(3) The provider must:
(a) fully co‑operate with the auditing body in the course of its audit; and
(b) pay to the auditing body any charges payable for such an audit.
(3A) A higher education provider contravenes this subsection if the provider:
(a) is being audited under this section; and
(b) does not co‑operate with the auditing body in the course of its audit.
Civil penalty: 60 penalty units.
(4) A determination made under paragraph (2)(a) is not a legislative instrument.
19‑82 Compliance notices
Grounds for giving a compliance notice
(1) The Minister may give a higher education provider a written notice (a compliance notice) in accordance with this section if the Minister is satisfied that the provider has not complied with, or is aware of information that suggests that the provider may not comply with, one or more of the following:
(a) this Act or the regulations;
(b) the Guidelines made under section 238‑10 that apply to the provider;
(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.
Civil penalty: 60 penalty units.
Variation and revocation of compliance notice
(5) The Minister may, by written notice given to the higher education provider, vary or revoke a compliance notice if, at the time of the variation or revocation, the Minister considers that taking such action is in the public interest.
Note: A variation could, for example, specify different action to be taken by the provider or a different period for complying with the notice.
(6) In deciding whether to vary or revoke the compliance notice, the Minister must consider any submissions that are received from the higher education provider before the end of the period mentioned in paragraph (2)(d).
Compliance notice not required before suspending or revoking approval
(7) To avoid doubt, the Minister need not give a compliance notice under this section before suspending or revoking the provider’s approval as a higher education provider in accordance with Division 22.
Subdivision 19‑F—What are the contribution and fee requirements?
19‑85 Basic requirement
A higher education provider must charge, in accordance with the requirements of this Act, *student contribution amounts and *tuition fees for each unit of study in which it enrols students.
19‑87 Determining student contribution amounts for all places in units
(1) This section applies to a unit of study:
(a) that a higher education provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines; and
(b) in relation to which the provider may advise a person that he or she is a *Commonwealth supported student.
(2) The provider must determine, for places in the unit, one or more *student contribution amounts that are to apply to students who may enrol in the unit during the period.
(2A) In determining more than one *student contribution amount under subsection (2), the provider may have regard to any matters the provider considers appropriate, other than matters specified in the Higher Education Provider Guidelines as matters to which a provider must not have regard.
(3) The provider must not vary a *student contribution amount unless the provider:
(a) does so:
(i) before the date ascertained in accordance with the Higher Education Provider Guidelines; and
(ii) in circumstances specified in the Higher Education Provider Guidelines; or
(b) does so with the written approval of the Minister.
19‑90 Determining tuition fees for all students
(1) This section applies to a unit of study that a higher education provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines.
(2) The provider must determine, for the unit, one or more *fees that are to apply to students who may enrol in the unit during the period.
(3) In determining more than one *fee under subsection (2), the provider may have regard to any matters the provider considers appropriate, other than matters specified in the Higher Education Provider Guidelines as matters to which a provider must not have regard.
(4) The provider must not vary a *fee unless the provider:
(a) does so:
(i) before the date ascertained in accordance with the Higher Education Provider Guidelines; and
(ii) in circumstances specified in the Higher Education Provider Guidelines; or
(b) does so with the written approval of the Minister.
19‑95 Schedules of student contribution amounts for places and tuition fees
(1) A higher education provider must give the Minister a schedule of the *student contribution amounts for places, and *tuition fees, determined under sections 19‑87 and 19‑90 for all the units of study it provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines. It must give the schedule:
(a) in a form approved by the Minister; and
(b) in accordance with the requirements that the Minister determines in writing.
(2) The provider must:
(a) ensure that the schedule provides sufficient information to enable a person to work out, for each unit of study the provider provides or is to provide:
(i) the person’s *student contribution amount; and
(ii) if the provider determined more than one student contribution amount for places in a unit under section 19‑87—which of those student contribution amounts applies to the person; and
(aa) ensure that the schedule provides sufficient information to enable a person to work out, for each unit of study the provider provides or is to provide:
(i) the person’s *tuition fee; and
(ii) if the provider determined more than one tuition fee for a unit under section 19‑90—which of those tuition fees applies to the person; and
(b) publish the schedule for a particular period by the date ascertained in accordance with the Higher Education Provider Guidelines; and
(c) ensure that the schedule is available to all students enrolled, and persons seeking to enrol, with the provider on request and without charge.
Civil penalty: 60 penalty units.
Replacement schedules
(3) If:
(a) the provider has given the Minister a schedule (the previous schedule) under:
(i) subsection (1); or
(ii) this subsection; and
(b) the provider:
(i) varies a *student contribution amount in the previous schedule; or
(ii) varies a *tuition fee in the previous schedule;
the provider must:
(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.
Civil penalty: 60 penalty units.
(4) Subsections (1) and (2) apply to the replacement schedule in a corresponding way to the way in which they apply to the previous schedule.
19‑100 Limits on fees for courses of study
A higher education provider must not charge a person a *fee for a *course of study that exceeds the sum of the person’s *tuition fees for all of the units of study undertaken with the provider by the person as part of the course.
19‑102 Meaning of fee
(1) A fee includes any tuition, examination or other fee payable to a higher education provider by a person enrolled with, or applying for enrolment with, the provider.
(2) A fee may also include any fee payable to the provider in respect of the granting of a *higher education award.
(3) A fee does not include a fee that is:
(a) payable in respect of an organisation of students, or of students and other persons; or
(b) payable in respect of the provision to students of amenities or services that are not of an academic nature; or
(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‑G—The compact and academic freedom requirements
19‑110 Table A providers and Table B providers must enter into mission based compacts
(1) A higher education provider that is a *Table A provider or a *Table B provider must, in respect of each year for which a grant is paid to the provider under this Act, enter into a mission based compact with the Commonwealth for a period that includes that year.
(2) The Minister may, on behalf of the Commonwealth, enter into a mission based compact with a *Table A provider or a *Table B provider.
(3) The mission based compact must include:
(a) a statement of the provider’s mission; and
(b) a statement of the provider’s strategies for teaching and learning; and
(c) a statement of the provider’s strategies for:
(i) undertaking research; and
(ii) research training; and
(iii) innovation; and
(d) a statement of the provider’s strategies for engaging with industry; and
(e) a statement of the provider’s strategies for improving equality of opportunity in higher education.
Note: A mission based compact may include other matters.
(4) The *Secretary must cause a copy of each mission based compact to be published on the Department’s website within 28 days after the making of the compact.
19‑115 Provider to have policy upholding freedom of speech and academic freedom
A higher education provider that is a *Table A provider or a *Table B provider must have a policy that upholds freedom of speech and academic freedom.
Division 22—When does a body cease to be a higher education provider?
Subdivision 22‑A—General
22‑1 Cessation of approval as a provider
(1) A body ceases to be approved as a higher education provider:
(a) if a decision to revoke the approval is in effect under Subdivision 22‑AA, 22‑B or 22‑D; or
(b) while the approval is suspended under section 22‑30; or
(c) if the notice of the provider’s approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.
(2) If a body ceases to be approved as a higher education provider, the Minister must ensure that *TEQSA is notified, in writing, of the cessation.
Subdivision 22‑AA—Revocation of approval if registration ceases or winding up order made
22‑2 Automatic revocation of approval if registration ceases
(1) The Minister must revoke a body’s approval as a higher education provider if:
(a) the body is no longer a *registered higher education provider; and
(b) in a case where *TEQSA has made either of the following decisions under the *TEQSA Act, the decision has not been set aside or quashed, and is no longer *subject to review:
(i) a decision under section 36 of that Act to refuse an application to renew the body’s registration under Part 3 of that Act;
(ii) a decision under section 101 of that Act to cancel the body’s registration under Part 3 of that Act.
(2) The Minister must notify the body in writing of the revocation. The notice must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.
(3) A notice of revocation under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the notice.
(4) A decision of the Minister to revoke a body’s approval as a higher education provider takes effect on the day that the notice of revocation under subsection (2) is registered in the *Federal Register of Legislation.
22‑3 Automatic revocation of approval if winding up order made
(1) The Minister must revoke a body’s approval as a higher education provider if:
(a) an order is made by a court, or by the Australian Securities and Investments Commission under Part 5.4C of the Corporations Act 2001, for the winding up of the body; and
(b) the order has not been set aside or quashed, and is no longer *subject to review.
(2) The Minister must notify the body in writing of the revocation. The notice must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.
(3) A notice of revocation under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the notice.
(4) A decision of the Minister to revoke a body’s approval as a higher education provider takes effect on the day that the notice of revocation under subsection (2) is registered in the *Federal Register of Legislation.
Subdivision 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, 2‑2A, 2‑3 or 2‑4; or
(ii) breached a *quality and accountability requirement; or
(iii) breached a condition imposed on the body’s approval; and
(b) is satisfied that it is appropriate to take that action (see subsection (2)); and
(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‑C—Process for decisions on revocation under Subdivision 22‑B
22‑20 Process for revoking approval
(1) Before revoking a body’s approval as a higher education provider under Subdivision 22‑B, the Minister must give the body notice in writing:
(a) stating that the Minister is considering revoking the body’s approval; and
(b) stating the reasons why the Minister is considering revoking the body’s approval; and
(c) inviting the body to make written submissions to the Minister within 28 days concerning why the approval should not be revoked.
(2) In deciding whether or not to revoke a body’s approval under Subdivision 22‑B, the Minister must consider any submissions received from the body within the 28 day period.
(3) The Minister must notify the body in writing of his or her decision whether to revoke the body’s approval under Subdivision 22‑B. The notice:
(a) must be in writing; and
(b) must be given within the period of 28 days following the period in which submissions may have been given to the Minister under subsection (1); and
(c) if the Minister decides to revoke the body’s approval—must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.
(3A) A notice of revocation under subsection (3) is a legislative instrument.
(4) If no notice is given within the period provided for in subsection (3), the Minister is taken to have decided not to revoke the approval.
(5) A decision of the Minister to revoke a body’s approval as a higher education provider takes effect on the day that the notice of revocation under subsection (3) is registered in the *Federal Register of Legislation.
(6) If the notice of revocation under subsection (3) ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003, then the decision to revoke the approval ceases to have effect at the same time.
22‑25 Determination retaining approval as a provider in respect of existing students
(1) The Minister may determine, in writing, that a revocation of a body’s approval as a higher education provider under Subdivision 22‑B is of no effect for the purposes of:
(a) grants to the body under this Chapter; and
(b) assistance payable to the body’s students under Chapter 3;
to the extent that the grants or assistance relate to students of the body who have not completed the *courses of study in which they were enrolled with the body on the day referred to in subsection 22‑20(5).
(2) The determination may be included in the notice of revocation under subsection 22‑20(3).
(3) The body is taken, for the purposes of this Act, to continue to be a higher education provider, but only to the extent referred to in subsection (1).
(4) Subsection (3) does not prevent the Minister subsequently revoking the body’s approval as a higher education provider under this Division.
22‑30 Suspension of approval as a provider
(1) The Minister may, by legislative instrument, determine that, with effect from a specified day, a body’s approval as a higher education provider is suspended pending the making of a decision under Subdivision 22‑B as to whether to revoke the body’s approval as a provider.
(2) A copy of the determination must be given to the body concerned.
(2A) Before the Minister makes a determination under subsection (1) in respect of a body, the Minister must give the body notice in writing:
(a) stating that the Minister is considering suspending the body’s approval; and
(b) stating the reasons why the Minister is considering suspending the body’s approval; and
(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‑D—Revocation of approval on application
22‑40 Revocation of approval as a provider on application
(1) The Minister may revoke the approval of a body as a higher education provider if the body requests the Minister in writing to revoke the approval.
(2) The request must be given to the Minister at least 30 days before the day on which the revocation is requested to have effect.
(3) The Minister must cause the body to be notified of the revocation. The notice must:
(a) be in writing; and
(b) be given to the body at least 14 days before the day on which the revocation is to take effect.
(3A) A notice of revocation under subsection (3) is a legislative instrument.
(4) The revocation has effect on the day requested unless another day is specified in the notice under subsection (3).
Subdivision 22‑E—Notice of approval or revocation ceasing to have effect under the Legislation Act 2003
22‑45 Notice of approval ceasing to have effect under the Legislation Act 2003
(1) This section applies if:
(a) a decision of the Minister to approve a body corporate as a higher education provider has taken effect; and
(b) the body ceases to be approved as a higher education provider because the notice of the approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.
(2) The fact that the body ceases to be approved as a higher education provider does not:
(a) affect:
(i) the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or
(ii) anything duly done or suffered in relation to the body before the cessation; or
(b) affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or
(c) affect any penalty, forfeiture or punishment incurred in respect of the body having been a higher education provider; or
(d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the body had not ceased to be approved as a higher education provider.
22‑50 Notice of revocation ceasing to have effect under the Legislation Act 2003
(1) This section applies if:
(a) a decision of the Minister to revoke a body’s approval as a higher education provider has taken effect; and
(b) the decision to revoke the approval ceases to have effect because the notice of revocation ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.
(2) The fact that the decision to revoke the approval ceases to have effect does not:
(a) affect:
(i) the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or
(ii) anything duly done or suffered in relation to the body before the cessation; or
(b) affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or
(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 2‑2—Commonwealth Grant Scheme
Division 27—Introduction
27‑1 What this Part is about
Grants are payable under this Part to higher education providers that meet certain requirements. These grants are paid in relation to Commonwealth supported places.
Grants are subject to several conditions relating to the provision of Commonwealth supported places and other matters.
Amounts of grants may be reduced, or some or all of a grant may be repayable if a condition is breached (see Part 2‑5).
Note: This Part does not apply to Table C providers: see section 5‑1.
27‑5 Commonwealth Grant Scheme Guidelines
The grants payable under this Part are also dealt with in the Commonwealth Grant Scheme Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note: The Commonwealth Grant Scheme Guidelines are made by the Minister under section 238‑10.
Division 30—Which higher education providers are eligible for a grant?
Subdivision 30‑A—Basic rules
30‑1 Eligibility for grants
(1) A grant under this Part is payable, as a benefit to students, to a higher education provider, in respect of the year 2005 or a later year, if:
(a) the provider:
(i) is a *Table A provider; and
(ii) has entered into a funding agreement with the Commonwealth under section 30‑25 in respect of a period that includes that year; or
(b) all of the following apply:
(i) the provider is a higher education provider specified in the Commonwealth Grant Scheme Guidelines as a higher education provider that can be paid grants under this Part;
(ii) the Minister has made an allocation under section 30‑10 to the provider for that year;
(iii) the provider has entered into a funding agreement with the Commonwealth under section 30‑25 in respect of a period that includes that year.
(2) However, a grant is payable to a higher education provider that is not a *Table A provider only if the grant relates only to *national priorities.
Subdivision 30‑B—Allocation of places
30‑10 Allocation of places
(1) The Minister may allocate a specified number of Commonwealth supported places for a year to:
(a) a *Table A provider in relation to *designated higher education courses; and
(b) a higher education provider referred to in subparagraph 30‑1(1)(b)(i).
Note: The Minister does not allocate places to Table A providers in relation to higher education courses or demand driven higher education courses.
(2) The allocation must specify the distribution of those places between the *funding clusters.
(2A) If the provider has indicated to the Minister its preferred distribution of those places, the Minister must have regard to that preferred distribution in deciding the distribution of those places.
(4) If the provider is not a *Table A provider, the allocation must specify:
(a) that it is only in respect of *national priorities; and
(b) the number of places for each national priority for which the provider is allocated places; and
(c) the number of places (if any) for each *funding cluster that are in respect of *non‑grandfathered students; and
(d) the number of places (if any) for each funding cluster (other than the *first funding cluster and the *second funding cluster) that are in respect of *grandfathered students; and
(e) the number of places (if any) for each *grandfathered funding cluster part that are in respect of grandfathered students.
(5) If the allocation made under subsection (1) is made in writing, the allocation is not a legislative instrument.
30‑12 Designated higher education courses
(1) Each of the following is a designated higher education course in relation to a *Table A provider:
(a) a *course of study in medicine;
(b) a *course of study of a kind determined under subsection (2).
(2) The Minister may, by legislative instrument, determine a kind of *course of study for the purposes of paragraph (1)(b).
30‑15 Funding clusters
The funding clusters are:
| Funding clusters |
| Item | Funding clusters |
| 1 | Law, Accounting, Administration, Economics, Commerce, Communications, Society and Culture |
| 2 | Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology, Professional Pathway Social Work |
| 3 | Nursing, Indigenous and Foreign Languages, Engineering, Surveying, Environmental Studies, Science |
| 4 | Agriculture, Medicine, Dentistry, Veterinary Science, Pathology |
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‑C—Funding agreements
30‑25 Funding agreements
(1) The Minister may, on behalf of the Commonwealth, enter into a funding agreement with a higher education provider relating to grants under this Part in respect of each year in a period of 3 years (the grant years).
(1A) In negotiating the agreement the Minister must have regard to all of the types of matters that the provider has indicated to the Minister it wishes to be specified in the agreement.
(2) The agreement may specify conditions to which the grants are subject, that are additional to the conditions that apply under Division 36.
Note: It is a condition of the grants that the provider comply with the agreement: see section 36‑65.
(2A) However, the agreement must not specify as a condition to which the grants are subject a matter in respect of which the Minister could have made a determination under subsection 36‑15(2) (or could have made such a determination but for subsection 36‑15(3)).
Note: The Minister has the power under subsection 36‑15(2) to determine that students are not to be enrolled as Commonwealth supported students in particular courses. The determination is disallowable (see subsection 36‑15(3)).
(2B) Where the agreement specifies conditions to which the grants are subject, that are additional to the conditions that apply under Division 36, those conditions must not relate to industrial relations matters.
(3) Without limiting subsection (2), the agreement may specify:
(aa) the *number of Commonwealth supported places allocated to the provider for a *funding cluster, or a *grandfathered funding cluster part, for the grant year; and
(a) in relation to one or more of the following:
(i) places in *undergraduate courses of study;
(ii) places in 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
(c) the maximum number of Commonwealth supported places provided by the provider which can have a medical student loading in the grant years; and
(e) the maximum amount of transition fund loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and
(g) adjustments that will apply to the amount of a grant payable to the provider under this Part if the provider breaches a condition of the grant.
30‑27 Specification of maximum basic grant amounts in funding agreements
Maximum basic grant amounts for Table A providers
(1) Subject to subsections (2), (3) and (5), a funding agreement for a higher education provider that is a *Table A provider:
(a) must specify an amount as the maximum basic grant amount payable to the provider for a *grant year for *higher education courses; and
(b) may specify an amount as the maximum basic grant amount payable to the provider for a *grant year for each of the following:
(i) *designated higher education courses;
(ii) *demand driven higher education courses.
Table A providers—maximum basic grant amount for higher education courses
(2) If a funding agreement for a *Table A provider is in respect of 2021, 2022 and 2023, the maximum basic grant amount for the provider for each of those years for *higher education courses must not be less than the amount specified in the Commonwealth Grant Scheme Guidelines for the purposes of this subsection for the provider for each of those years for those courses.
(3) If a funding agreement for a *Table A provider is in respect of other later years, the maximum basic grant amount for the provider for each of those years for *higher education courses must not be less than:
(a) for 2024—the amount specified in the Commonwealth Grant Scheme Guidelines for the purposes of this paragraph for the provider for that year for those courses; and
(b) for any other later year—the maximum basic grant amount specified in the provider’s funding agreement for the preceding year for those courses.
(4) Without limiting subsection (2) and paragraph (3)(a), the Commonwealth Grant Scheme Guidelines may:
(a) specify different amounts for different years for the purposes of that subsection; and
(b) specify different amounts for different *Table A providers for the purposes of that subsection or paragraph.
Table A providers—maximum basic grant amount for designated higher education courses
(5) The maximum basic grant amount for a *Table A provider for a *grant year for *designated higher education courses must not be less than the amount worked out for the year for those courses using the method statement set out in paragraph 33‑5(3)(b) with the following modifications:
(a) read a reference in step 1 of that statement to places provided by the provider in a *funding cluster as a reference to places allocated under section 30‑10 to the provider in that funding cluster;
(b) disregard paragraph (a) of that step.
Maximum basic grant amount for non‑Table A providers
(6) Subject to subsection (7), a funding agreement for a higher education provider (other than a *Table A provider) may specify an amount as the maximum basic grant amount payable to the provider for a *grant year.
(7) The maximum basic grant amount for a higher education provider (other than a *Table A provider) for a *grant year must not be less than the amount worked out for the year using the method statement set out in paragraph 33‑5(7)(b) with the following modifications:
(a) read a reference in steps 1, 2 and 3 of that statement to places provided by the provider in a *funding cluster or a *grandfathered funding cluster part as a reference to places allocated under section 30‑10 to the provider in that funding cluster or grandfathered funding cluster part;
(b) disregard paragraph (a) of each of those steps.
30‑28 Funding agreement to be published
The *Secretary must cause a copy of each funding agreement to be published on the Department’s website within 28 days after the making of the agreement.
Division 33—How are grant amounts worked out?
Subdivision 33‑A—Basic rule
33‑1 How grant amount is worked out
(1) The amount of a grant payable to a higher education provider under this Part for a year is worked out by:
(a) working out the *total basic grant amount for the provider for that year under Subdivision 33‑B; and
(b) adding:
(ii) the amount of any medical student loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and
(iv) the amount of any transition fund loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and
(v) the amount of any performance funding grant amount worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year.
(2) Advances may be paid to a higher education provider under Subdivision 33‑D.
Note: Part 5‑1 deals with how payments can be made.
Subdivision 33‑B—Total basic grant amounts
33‑5 Total basic grant amounts
Total basic grant amount for Table A providers
(1) The total basic grant amount for a *Table A provider for a year is the sum of the following amounts:
(a) the amount for *higher education courses (see subsection (2));
(b) the amount for *designated higher education courses (see subsections (3) and (4));
(c) the amount for *demand driven higher education courses (see subsections (5) and (6)).
Table A providers—amount for higher education courses
(2) For the purposes of paragraph (1)(a), the amount for *higher education courses is the lesser of:
(a) the *maximum basic grant amount for the year for those courses that is specified in the *Table A provider’s funding agreement; and
(b) the amount worked out for the year using the following method statement.
Method statement
Step 1. For each *funding cluster in which the provider has provided places in those courses in respect of *non‑grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by
(b) the *Commonwealth contribution amount for a place in that funding cluster.
Step 2. For each *funding cluster (other than the *first funding cluster and the *second funding cluster) in which the provider has provided places in those courses in respect of *grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by
(b) the *Commonwealth contribution amount for a place in that funding cluster.
Step 3. For each *grandfathered funding cluster part in which the provider has provided places in those courses in respect of *grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that grandfathered funding cluster part in respect of those students; by
(b) the *grandfathered Commonwealth contribution amount for a place in that grandfathered funding cluster part.
Step 4. Add together all of the amounts worked out under steps 1, 2 and 3.
Table A providers—amount for designated higher education courses
(3) For the purposes of paragraph (1)(b) and subject to subsection (4), the amount for *designated higher education courses is the lesser of:
(a) the *maximum basic grant amount for the year for those courses that is specified in the *Table A provider’s funding agreement; and
(b) the amount worked out for the year using the following method statement.
Method statement
Step 1. For each *funding cluster in which the provider has provided places in those courses, multiply the *Commonwealth contribution amount for a place in that funding cluster by the lesser of the following:
(a) the number that is the sum of the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of *non‑grandfathered students and in respect of *grandfathered students;
(b) the number of Commonwealth supported places allocated to the provider for that funding cluster.
Step 2. Add together all of the amounts worked out under step 1.
(4) If a *maximum basic grant amount for the year for the *designated higher education courses is not specified in the *Table A provider’s funding agreement, the amount for those courses is the amount worked out for the year using the method statement set out in paragraph (3)(b).
Table A providers—amount for demand driven higher education courses
(5) For the purposes of paragraph (1)(c) and subject to subsection (6), the amount for *demand driven higher education courses is the lesser of:
(a) the *maximum basic grant amount for the year for those courses that is specified in the *Table A provider’s funding agreement; and
(b) the amount worked out for the year using the following method statement.
Method statement
Step 1. For each *funding cluster in which the provider has provided places in those courses in respect of *non‑grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by
(b) the *Commonwealth contribution amount for a place in that funding cluster.
Step 2. For each *funding cluster (other than the *first funding cluster and the *second funding cluster) in which the provider has provided places in those courses in respect of *grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that funding cluster in respect of those students; by
(b) the *Commonwealth contribution amount for a place in that funding cluster.
Step 3. For each *grandfathered funding cluster part in which the provider has provided places in those courses in respect of *grandfathered students, multiply:
(a) the *number of Commonwealth supported places provided by the provider in those courses in that grandfathered funding cluster part in respect of those students; by
(b) the *grandfathered Commonwealth contribution amount for a place in that grandfathered funding cluster part.
Step 4. Add together all of the amounts worked out under steps 1, 2 and 3.
(6) If a *maximum basic grant amount for the year for the *demand driven higher education courses is not specified in the *Table A provider’s funding agreement, the amount for those courses is the amount worked out for the year using the method statement set out in paragraph (5)(b).
Total basic grant amount for non‑Table A providers
(7) Subject to subsection (8), the total basic grant amount for a higher education provider (other than a *Table A provider) for a year is the lesser of:
(a) the *maximum basic grant amount for the year that is specified in the provider’s funding agreement; and
(b) the amount worked out for the year using the following method statement.
Method statement
Step 1. For each *funding cluster in which the provider has provided places in respect of *non‑grandfathered students, multiply the *Commonwealth contribution amount for a place in that funding cluster by the lesser of the following:
(a) the *number of Commonwealth supported places provided by the provider in that funding cluster in respect of those students;
(b) the number of Commonwealth supported places allocated to the provider for that funding cluster in respect of those students.
Step 2. For each *funding cluster (other than the *first funding cluster and the *second funding cluster) in which the provider has provided places in respect of *grandfathered students, multiply the *Commonwealth contribution amount for a place in that funding cluster by the lesser of the following:
(a) the *number of Commonwealth supported places provided by the provider in that funding cluster in respect of those students;
(b) the number of Commonwealth supported places allocated to the provider for that funding cluster in respect of those students.
Step 3. For each *grandfathered funding cluster part in which the provider has provided places in respect of *grandfathered students, multiply the *grandfathered Commonwealth contribution amount for a place in that grandfathered funding cluster part by the lesser of the following:
(a) the *number of Commonwealth supported places provided by the provider in that part in respect of those students;
(b) the number of Commonwealth supported places allocated to the provider for that part in respect of those students.
Step 4. Add together all of the amounts worked out under steps 1, 2 and 3.
(8) If a *maximum basic grant amount for the year is not specified in the funding agreement of the higher education provider referred to in subsection (7), the total basic grant amount for the provider is the amount worked out for the year using the method statement set out in paragraph (7)(b).
33‑10 Commonwealth contribution amounts and grandfathered Commonwealth contribution amounts
(1) The Commonwealth contribution amount for a place in a *funding cluster is the amount specified in the following table in relation to a place in the funding cluster.
| Commonwealth contribution amounts |
| Item | For a place in this funding cluster: | The amount is: |
| 1 | Law, Accounting, Administration, Economics, Commerce, Communications, Society and Culture | $1,100 |
| 2 | Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment, Computing, Visual and Performing Arts, Professional Pathway Psychology, Professional Pathway Social Work | $13,250 |
| 3 | Nursing, Indigenous and Foreign Languages, Engineering, Surveying, Environmental Studies, Science | $16,250 |
| 4 | Agriculture, Medicine, Dentistry, Veterinary Science, Pathology | $27,000 |
Note: Commonwealth contribution amounts are indexed under Part 5‑6.
(2) The grandfathered Commonwealth contribution amount for a place in a *grandfathered funding cluster part is the amount specified in the following table in relation to a place in the grandfathered funding cluster part.
| Grandfathered Commonwealth contribution amounts |
| Item | For a place in this grandfathered funding cluster part: | The amount is: |
| 1 | Law, Accounting, Administration, Economics or Commerce | $2,237 |
| 2 | Communications | $13,547 |
| 3 | The Social Studies or Behavioural Science subpart of the Society and Culture part of the first funding cluster | $11,015 |
| 4 | Any other subpart of the Society and Culture part of the first funding cluster | $6,226 |
| 5 | Education, Clinical Psychology, English, Mathematics, Statistics, Allied Health, Other Health, Built Environment or Computing | $13,250 |
| 6 | Visual and Performing Arts | $13,547 |
| 7 | Professional Pathway Psychology or Professional Pathway Social Work | $11,015 |
Note: Grandfathered Commonwealth contribution amounts are indexed under Part 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 in respect of *non‑grandfathered students during a particular year is a number equal to the number worked out as follows:
Method statement
Step 1. For each unit of study (other than any unit that is an *ineligible work experience unit for a *non‑grandfathered student) that the provider provided that had its *census date during the year, multiply:
(a) the *EFTSL value of the unit; by
(b) the number of non‑grandfathered students enrolled with the provider in that unit as *Commonwealth supported students.
Step 2. Add together all of the amounts worked out under step 1.
(1A) The number of Commonwealth supported places that a higher education provider has provided in respect of *grandfathered students during a particular year is a number equal to the number worked out as follows:
Method statement
Step 1. For each unit of study (other than any unit that is an *ineligible work experience unit for a *grandfathered student) that the provider provided that had its *census date during the year, multiply:
(a) the *EFTSL value of the unit; by
(b) the number of grandfathered students enrolled with the provider in that unit as *Commonwealth supported students.
Step 2. Add together all of the amounts worked out under step 1.
(2) For the purposes of this section, if:
(a) a unit of study provided by the provider forms part of more than one *course of study; and
(b) the provider determines under subsection 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) or (1A) (as the case requires) to the units of study mentioned in column 2 of that item.
| Working out the number of Commonwealth supported places provided |
| Item | Column 1 To work out the number of Commonwealth supported places provided in … | Column 2 apply the method statement in subsection (1) or (1A) (as the case requires) to … |
| 1 | a *funding cluster or a *grandfathered funding cluster part | units provided by the provider in the funding cluster or the grandfathered funding cluster part. |
| 2 | *higher education courses in a *funding cluster or a *grandfathered funding cluster part | units provided by the provider in the funding cluster, or the grandfathered funding cluster part, in those courses. |
| 3 | *designated higher education courses in a *funding cluster | units provided by the provider in the funding cluster in those courses. |
| 4 | *demand driven higher education courses in a *funding cluster or a *grandfathered funding cluster part | units provided by the provider in the funding cluster, or the grandfathered funding cluster part, in those courses. |
33‑35 Funding clusters, or parts of funding clusters, in which units are included
The Commonwealth Grant Scheme Guidelines may specify:
(a) how to determine, for the purposes of this Act, the *funding cluster, or the part of a funding cluster, in which units of study are included; or
(b) the particular funding cluster, or the particular part of a particular funding cluster, in which a particular unit is included for the purposes of this Act.
Subdivision 33‑C—Adjustments
33‑37 Adjustments for breach of section 19‑37
(1) A higher education provider’s *total basic grant amount for a year is reduced by an adjustment in respect of the year if, on one or more occasions during the year, the provider breaches a condition imposed under section 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 sum of the following:
(a) the *number of Commonwealth supported places that the higher education provider has provided in respect of *non‑grandfathered students for the year;
(b) the number of Commonwealth supported places that the higher education provider has provided in respect of *grandfathered students for the year.
(3) This section does not apply in relation to a breach of a condition imposed under section 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 *total basic grant amount for the year in question.
The notice may relate to more than one breach.
(5) A failure by the Minister to give a notice under subsection (4) in relation to a breach of a condition imposed under section 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 *total basic grant amount for a year.
Subdivision 33‑D—Special purpose advances
33‑40 Advances for certain purposes
(1) The Minister may, if an amount has been specified under subsection (3A), determine that an advance is payable to a higher education provider, in respect of a year, in relation to expenditure of the provider for such purposes as the Minister determines.
(2) The Minister may pay an advance to the provider under subsection (1) on such conditions (if any) as the Minister determines.
(3) The total of the advances in respect of a year must not exceed the amount specified by the Minister under subsection (3A).
(3A) The Minister may, by legislative instrument, specify an amount for the purposes of subsection (3).
(4) If the Minister determines an advance for the provider in respect of a year, the amounts of grant payable to the provider under section 33‑1 in respect of:
(a) the year next following that year; or
(b) the 2 years next following that year; or
(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 36—What are the conditions of receiving a grant?
Subdivision 36‑A—General
36‑1 Condition of grant to comply with this Division
(1) A higher education provider receives a grant under this Part on condition that the provider complies with this Division.
(2) Without limiting subsection (1), the following provisions of this Division do not of their own force require the provider to do any act or thing.
Subdivision 36‑B—Conditions relating to Commonwealth supported students
36‑5 Meaning of Commonwealth supported student
(1) A person is a Commonwealth supported student, in relation to a unit of study, if:
(a) the higher education provider with which he or she is enrolled in that unit has advised the person in writing that he or she is a Commonwealth supported student:
(i) in relation to the unit; or
(ii) if the person is undertaking a *course of study with the provider of which the unit forms a part—in relation to that course of study; and
(b) at the end of the *census date for the unit, the higher education provider would not have been prohibited under this Subdivision from so advising the person.
(3) However, the person is not a Commonwealth supported student in relation to the unit if he or she notifies an *appropriate officer of the provider that he or she does not wish to be a Commonwealth supported student in relation to the unit.
(4) A notice under subsection (3):
(a) must be in writing; and
(b) must be given on or before the *census date for the unit.
(5) In addition, the person is not a *Commonwealth supported student in relation to the unit of study if the *Secretary determines that the person is not a genuine student in relation to the unit.
(6) In determining whether a person is a genuine student for the purposes of subsection (5), the *Secretary must have regard to the matters (if any) specified in the Higher Education Provider Guidelines.
(7) If a determination under subsection (5) is made in writing, the determination is not a legislative instrument.
36‑10 Advice on whether a person is a Commonwealth supported student—general
When a provider must not advise that a person is Commonwealth supported
(1) A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study unless:
(a) the provider has entered into a funding agreement under section 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
(ba) the person has been assessed by the higher education provider, in accordance with section 19‑42, as academically suited to undertake the unit; and
(c) the person meets the citizenship or residency requirements for the purposes of this paragraph (see subsections (2) and (2A)); and
(d) if the course of study is a course of study other than an *enabling course—the unit is *covered by the person’s Student Learning Entitlement; and
(e) the person:
(i) enrolled in the unit on or before the *census date for the unit; and
(ii) at the end of the census date, remained so enrolled; and
(f) if:
(i) the census date for the unit is on or after 1 January 2021 and before 1 January 2023 and the person commenced the course of study on or after 1 January 2021; or
(ii) the census date for the unit is on or after 1 January 2023;
the person meets the *student identifier requirements for the purposes of this paragraph (see subsection (2C)).
When a person meets the citizenship or residency requirements
(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.
When a person meets the student identifier requirements
(2C) A person meets the *student identifier requirements for the purposes of paragraph (1)(f) if:
(a) the person has a student identifier immediately before the census date; and
(b) before the census date, the person notifies the person’s student identifier to:
(i) an *appropriate officer of the higher education provider; and
(ii) the *Secretary.
(2D) A notification under paragraph (2C)(b) may be included in a *request for Commonwealth assistance that the person has given to the higher education 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.
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.
36‑12 Advice on whether a person is a Commonwealth supported student—unreasonable study load
(1) A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study (the new unit) if the sum of the following amounts is more than 2:
(a) the *EFTSL value of the new unit;
(b) the sum of the EFTSL values of each other unit of study:
(i) that has a *census date during the 12 month period ending on the census date for the new unit; and
(ii) for which the person is entitled to *HECS‑HELP assistance or *FEE‑HELP assistance, or would be so entitled but for the previous operation of this section, or section 104‑1AA, in relation to the other unit of study.
(2) Subsection (1) does not apply if the higher education provider determines that undertaking the new unit will not impose an unreasonable study load on the person, having regard to:
(a) whether the person has the demonstrated capacity and capability to successfully complete units of study that have a total EFTSL value of more than 2; and
(b) the matters (if any) specified by the Higher Education Provider Guidelines for the purposes of this paragraph.
(3) A decision of a higher education provider under subsection (2) must be in accordance with the requirements (if any) specified in the Higher Education Provider Guidelines.
(4) If a determination under subsection (2) is made in writing, the determination is not a legislative instrument.
36‑13 Advice on whether a person is a Commonwealth supported student—failure to complete previous units
(1) A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study if:
(a) in a case where the unit of study is part of a *course of study leading to a *higher education award that is a bachelor degree or higher qualification:
(i) the student has already undertaken 8 or more other units of study with that provider as part of that course of study; and
(ii) the student did not successfully complete at least 50% of those other units; or
(b) in any other case:
(i) the student has already undertaken 4 or more other units of study with that provider as part of a course of study; and
(ii) the student did not successfully complete at least 50% of those other units.
(2) In determining, for the purposes of subparagraphs (1)(a)(ii) and (b)(ii), the number of units the student did not successfully complete, disregard any units:
(a) not completed by the student; and
(b) in respect of which the provider is satisfied that special circumstances apply in relation to the student (see subsection (3)).
(3) For the purposes of paragraph (2)(b), special circumstances apply in relation to the student in respect of a unit of study if, and only if, the higher education provider is satisfied that circumstances apply in relation to the student that:
(a) are beyond the student’s control; and
(b) do not make their full impact on the student until on or after the *census date for the unit of study; and
(c) make it impracticable for the student to complete the requirements for the unit during the period during which the student undertook, or was to undertake, the unit.
(4) The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (3)(a) or (b).
(5) A higher education provider will be satisfied of the matter referred to in paragraph (3)(c) in relation to a unit of study if the provider is satisfied that any of the following circumstances apply in relation to a student:
(a) the student’s medical condition changed or worsened to such an extent that the student was unable to complete the requirements for the unit;
(b) a member of the student’s family died and it is unreasonable to expect the student to have completed the requirements for the unit;
(c) a member of the student’s family had a serious medical condition and it is unreasonable to expect the student to have completed the requirements for the unit;
(d) financial difficulties experienced by the student, or a member of the student’s family, are such that it is unreasonable to expect the student to have completed the requirements for the unit;
(e) the student’s employment status or arrangements changed such that the student was unable to complete the requirements for the unit;
(f) changes made in relation to the unit by the provider, or another higher education provider, disadvantaged the student;
(g) it is unreasonable to expect the student to have completed the requirements for the unit because of a natural disaster, or other emergency, that occurred in Australia;
(h) any other circumstances that the provider considers relevant;
(i) any other circumstances specified in the Administration Guidelines for the purposes of this paragraph.
(6) Without limiting paragraph (5)(i), the Administration Guidelines may specify circumstances relating to a matter mentioned in subsection (5).
(7) If the Administration Guidelines specify circumstances for the purposes of subsection (4) or paragraph (5)(i), a decision of a higher education provider under this section must be in accordance with those guidelines.
(8) If a higher education provider is unable to act for the purposes of this section (other than subsection (1)), the *Secretary may act as if one or more references in this section (other than subsection (1)) to a higher education provider were a reference to the Secretary.
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.
(5) A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study if:
(a) the provider has completed any part of a *request for Commonwealth assistance that the person is required to complete; and
(b) the request relates to the person enrolling in the unit of study or, where the unit forms part of a *course of study undertaken with the provider, the course of study.
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 as a *replacement unit; or
(b) it is determined that section 36‑24A applies to the person; or
(c) section 36‑24BA applies in relation to the provider in relation to the unit.
(4) The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to circumstances to which paragraph (3)(a) applies:
(a) the amount (if any) that is to be paid to the person; and
(b) the amount (if any) that is to be paid to the Commonwealth; and
(c) the person (if any) who is to pay the amounts.
(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 subsections 97‑30(2) and 104‑30(2) (re‑crediting a person’s 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 defaults
(1) A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person if:
(a) the person has been enrolled as a *Commonwealth supported student with the provider in a unit of study; and
(b) the unit would, if completed, form part of a *course of study undertaken with the provider; and
(c) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider *defaulted in relation to the person; and
(d) Part 5‑1A applied to the provider at the time the provider defaulted in relation to the person; and
(e) any of the following apply:
(i) the provider identifies, under paragraph 166‑25(4)(b) that there is no suitable *replacement unit or *replacement course for the person;
(ii) the person elects, under subparagraph 166‑25(7)(a)(iii), to have an amount equal to the amounts of *HECS‑HELP assistance that the person received for the unit re‑credited to the student’s *HELP balance;
(iii) the *Higher Education Tuition Protection Director decides, under paragraph 166‑26B(2)(b) that the Director is not satisfied that there is a suitable replacement course for the person;
(iv) the person elects, under subparagraph 166‑26B(4)(a)(iii), to have an amount equal to the amounts of HECS‑HELP assistance that the person received for the unit re‑credited to the student’s HELP balance.
Note: A HECS‑HELP debt of a person to whom this section applies is remitted under subsection 137‑5(4).
(2) The provider must 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 the amount (if any) that was paid to the provider for the unit under section 96‑1, 96‑2 or 96‑3.
36‑24BA Providers to repay amounts—person’s SLE amount re‑credited in special circumstances
(1) This section applies if:
(a) a person has been enrolled as a *Commonwealth supported student with a higher education provider in a unit of study; and
(b) the person’s *SLE amount has been re‑credited under section 79‑1 with an amount equal to the *EFTSL value of the unit.
(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 the person’s *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.
36‑24BB Providers to repay amounts—provider completes request for assistance
(1) This section applies to a person if the person’s *HELP balance is re‑credited with an amount relating to *HECS‑HELP assistance for a unit of study under section 97‑45.
Note: The person’s HECS‑HELP debt relating to the unit is taken to be remitted if the person’s HELP balance is re‑credited in relation to the unit under section 97‑45: see section 137‑5.
(2) The higher education provider must:
(a) pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to the person’s *student contribution amount for the unit; and
(b) pay to the Commonwealth an amount equal to the amount (if any) that was paid to the provider for the unit under section 96‑1, 96‑2 or 96‑3.
(3) Subsection (2) does not apply to the provider if:
(a) the person enrolled in the unit as a *replacement unit; or
(b) it is determined that section 36‑24A applies to the person in relation to the unit.
(4) The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to circumstances to which paragraph (3)(a) applies:
(a) the amount (if any) that is to be paid to the person; and
(b) the amount (if any) that is to be paid to the Commonwealth; and
(c) the person (if any) who is to pay the amounts.
36‑24BC Providers to repay amounts—person not entitled to assistance
(1) This section applies to a person if the person’s *HELP balance is re‑credited with an amount relating to *HECS‑HELP assistance for a unit of study under section 97‑50.
Note: The person’s HECS‑HELP debt relating to the unit is taken to be remitted if the person’s HELP balance is re‑credited in relation to the unit under section 97‑50: see section 137‑5.
(2) The higher education provider must:
(a) pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to the person’s *student contribution amount for the unit; and
(b) pay to the Commonwealth an amount equal to the amount (if any) that was paid to the provider for the unit under section 96‑1, 96‑2 or 96‑3.
(3) Subsection (2) does not apply to the provider if:
(a) the person enrolled in the unit as a *replacement unit; or
(b) it is determined that section 36‑24A applies to the person in relation to the unit.
(4) The Higher Education Provider Guidelines may, in setting out the *tuition protection requirements, specify, in relation to circumstances to which paragraph (3)(a) applies:
(a) the amount (if any) that is to be paid to the person; and
(b) the amount (if any) that is to be paid to the Commonwealth; and
(c) the person (if any) who is to pay the amounts.
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 36‑12(2) or 36‑20(1), section 36‑21, 36‑22 or 36‑23 or subsection 36‑24A(1), the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.
Subdivision 36‑C—Conditions relating to enrolment
36‑25 Continued support for Commonwealth supported students
(1) A higher education provider must advise a person who is enrolled in a unit of study with the provider, as part of a *course of study being undertaken with the provider, that he or she is a *Commonwealth supported student in relation to the unit if:
(a) the person is or has been a Commonwealth supported student in relation to one or more other units of study, undertaken with the provider, as part of the course; and
(b) the provider is not prohibited, under Subdivision 36‑B, from so advising the person.
(2) A *Table A provider (the host provider) must advise a person who is enrolled in a unit of study with the provider, as part of a *course of study being undertaken with another Table A provider (the home provider), that he or she is a *Commonwealth supported student in relation to the unit if:
(a) the person is or has been a Commonwealth supported student in relation to one or more other units of study in the course undertaken with the home provider; and
(b) the person must undertake the unit, because it is required to complete the course; and
(c) the host provider is not prohibited, under Subdivision 36‑B, 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 Subdivision 36‑B, 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; and
(c) the provider is not prohibited, under Subdivision 36‑B, from advising the person that the person is a Commonwealth supported student in relation to the unit.
(4) Subsection (3) does not apply, and is taken never to have applied, in relation to that enrolment if:
(a) in respect of the year in which the person is enrolled in the unit, the provider has already filled, or fills, all of the *number of Commonwealth supported places in respect of that *national priority; or
(b) the person notifies an *appropriate officer of the provider that he or she does not wish to be a *Commonwealth supported student in relation to the unit.
Notices under paragraph (4)(b)
(5) A notice under paragraph (4)(b):
(a) must be in writing; and
(b) must be given on or before the *census date for the unit.
36‑40 Providers to cancel enrolments in certain circumstances
(1) A higher education provider must cancel a person’s enrolment in a unit of study with the provider if the person:
(a) is enrolled as a *Commonwealth supported student in relation to the unit; and
(b) has not, on or before the *census date for the unit:
(i) completed, and signed, a *request for Commonwealth assistance in relation to the unit or, where the unit forms part of a *course of study undertaken with the provider, in relation to the course of study; and
(ii) given it to an *appropriate officer of the provider.
(2) A higher education provider must cancel a person’s enrolment in a unit of study with the provider if the person:
(a) is enrolled as a *Commonwealth supported student in relation to the unit; and
(b) is not entitled to *HECS‑HELP assistance for the unit; and
(c) has not, on or before the *census date for the unit, paid to the provider the whole of the person’s *student contribution amount for the unit.
However, this subsection does not apply if the person’s student contribution amount for the unit is a nil amount.
(3) A request for Commonwealth assistance, in relation to a person enrolling in a unit of study with a higher education provider (where access to the unit was not provided by *Open Universities Australia), means a document:
(a) in which the person requests the Commonwealth to provide assistance under this Act in relation to the unit or, where the unit forms part of a *course of study undertaken with the provider, in relation to the course of study; and
(b) that is in the form approved by the Minister.
Subdivision 36‑D—Conditions relating to student contribution amounts
36‑45 Limits on student contribution amounts
If a person is enrolled with a higher education provider in a unit of study as a *Commonwealth supported student, the provider must not charge, as the person’s *student contribution amount for the unit, an amount that exceeds the amount worked out as follows:
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 in relation to 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‑E—Conditions relating to tuition fees
36‑55 Tuition fees for non‑Commonwealth supported students
Tuition fees for units of study
(1) A higher education provider must not determine, as a person’s *tuition fee for a unit of study, an amount that is less than the highest *student contribution amount that the provider would charge any person who is a *Commonwealth supported student in relation to the unit.
(2) Subsection (1) does not apply if the person is enrolled in an *employer reserved place. However, the provider must not charge, as the person’s *tuition fees for the unit, amounts that are such that the sum of:
(a) the tuition fees; and
(b) the *employer contribution amount for the unit;
is less than the *student contribution amount referred to in subsection (1).
(3) If a person:
(a) is enrolled in study with a higher education provider on a *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‑F—Other conditions
36‑60 Providers to meet the quality and accountability requirements
A higher education provider must meet the *quality and accountability requirements.
36‑65 Providers to comply with funding agreement
A higher education provider must comply with any funding agreement the provider enters into under section 30‑25.
36‑70 Providers to comply with the Commonwealth Grant Scheme Guidelines
(1) The Commonwealth Grant Scheme Guidelines may specify conditions that higher education providers must comply with for the purposes of this Division.
(2) A higher education provider must comply with all such conditions in respect of any year for which the provider receives a grant under this Part.
(3) However, the provider need not comply with such a condition during a particular year if the condition comes into force on or after the day on which the provider entered into a funding agreement under section 30‑25 in respect of a period that includes that year.
Part 2‑2A—Indigenous student assistance grants
Division 38—Indigenous student assistance grants
38‑1 What this Part is about
Grants for assisting Indigenous persons are payable under this Part to Table A providers and Table B providers.
Note: This Part does not apply to Table C providers: see section 5‑1.
38‑5 Indigenous Student Assistance Grants Guidelines
Grants under this Part are also dealt with in the Indigenous Student Assistance Grants Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note: The Indigenous Student Assistance Grants Guidelines are made by the Minister under section 238‑10.
38‑10 Eligibility for grants under this Part
(1) A *Table A provider or *Table B provider is, subject to subsection (3), eligible for grants under this Part, in respect of the year 2017 or a later year, for the following purposes:
(a) assisting *Indigenous persons (who may or may not be students) to undertake higher education;
(b) increasing the number of:
(i) *Indigenous persons enrolling in courses leading to *higher education awards; and
(ii) students who are Indigenous persons progressing in and completing courses leading to higher education awards.
(2) Without limiting subsection (1), the purposes mentioned in that subsection may be achieved through the following means:
(a) providing scholarships;
(b) providing academic support, including supplementary tuition;
(c) providing pastoral care;
(d) implementing strategies to:
(i) accelerate improvements to Indigenous student outcomes in higher education; or
(ii) foster culturally‑safe learning environments in higher education.
(3) If the Indigenous Student Assistance Grants Guidelines:
(a) provide for a grant; and
(b) specify extra conditions of eligibility to receive the grant;
then a *Table A provider or *Table B provider is not eligible for the grant unless the provider complies with those extra conditions.
38‑15 Guidelines may provide for grants
(1) The Indigenous Student Assistance Grants Guidelines may provide for one or more grants to *Table A providers and *Table B providers for purposes specified in subsection 38‑10(1).
(2) If the Indigenous Student Assistance Grants Guidelines provide for one or more grants of a particular type, the guidelines may also specify all or any of the following matters for the grants:
(a) the grants’ objectives;
(b) the extra conditions of eligibility to receive the grants;
(c) the amount, being part of the amount referred to in section 38‑45 for a year, that will be spent on grants of that type in that particular year;
(d) the indexation of that amount for subsequent years, using the method of indexation set out in Part 5‑6;
(e) the amounts of the grants, or the methods by which the amounts of the grants will be determined;
(f) the year or years in respect of which the grants are payable;
(g) the conditions that apply to the grants.
38‑20 Approval of grants
The Minister may, by notifiable instrument, approve a grant under this Part in respect of a year to a particular higher education provider that is eligible for such a grant.
38‑25 Conditions on grants
(1) A grant is made on the following conditions:
(a) if the grant is provided for by the Indigenous Student Assistance Grants Guidelines and the guidelines specify conditions that apply to the grant:
(i) on the conditions provided for in the guidelines; and
(ii) also on the condition that the higher education provider receiving the grant must meet the *quality and accountability requirements;
(b) if paragraph (a) does not apply:
(i) on such conditions (if any) as the Minister determines under subsection (2); and
(ii) also on the condition that the higher education provider receiving the grant must meet the quality and accountability requirements.
(2) For the purposes of subparagraph (1)(b)(i), the Minister may, by notifiable instrument, determine conditions that apply to one or more grants that a particular higher education provider receives.
38‑30 Amounts of grants
(1) The amount of a grant is:
(a) if:
(i) the grant is provided for by the Indigenous Student Assistance Grants Guidelines; and
(ii) the guidelines specify the amount of the grant, or a method by which the amount of the grant is to be determined;
the specified amount, or the amount determined by the specified method; or
(b) if paragraph (a) does not apply—the amount determined by the Minister under subsection (2).
(2) For the purposes of paragraph (1)(b), the Minister may, by notifiable instrument, determine the amounts of one or more grants that a particular higher education provider receives.
38‑35 Amounts payable under this Part
If:
(a) a higher education provider meets, in respect of a year, the requirements of the Indigenous Student Assistance Grants Guidelines for the purposes of section 38‑15 in relation to a grant; or
(b) the Minister approves, under section 38‑20, a grant to a higher education provider in respect of a year;
there is payable to the provider concerned, in respect of that year, an amount equal to the amount referred to in section 38‑30 in respect of that grant.
38‑40 Rollover of grant amounts
(1) If:
(a) a higher education provider to which a grant under this Part has been made in respect of a year fails to spend an amount of that grant; and
(b) the *Secretary determines under subsection (3) that this section is to apply to the provider in respect of that grant;
then so much of the unspent amount as the Secretary determines under that subsection is taken to be granted to the provider under this Part in respect of the next following year.
(2) The grant is taken to be made:
(a) under the same conditions as the conditions of the original grant, except the grant is taken to be made in respect of the next following year; or
(b) under such other conditions as the Secretary determines under subsection (4).
(3) For the purposes of subsection (1), the Secretary may, by notifiable instrument, determine:
(a) that this section is to apply to a particular higher education provider in respect of one or more grants; and
(b) for each grant, an amount of the unspent amount of the grant.
(4) For the purposes of paragraph (2)(b), the Secretary may, by notifiable instrument, determine conditions that apply to one or more grants made to a particular higher education provider.
38‑45 Maximum payments for grants under this Part
(1) The total payments made under this Part in respect of a year must not exceed the amount determined by the Minister under subsection (2) in respect of the year.
(2) The Minister may, by legislative instrument, determine the total payments made under this Part in respect of a year.
Note: A single instrument may determine amounts for multiple years.
(3) A determination under subsection (2) for a year must be made before the start of that year.
(4) The Minister may, by legislative instrument, at any time before the end of a year, vary a determination made under subsection (2) for the year.
Part 2‑3—Other grants
Division 41—Other grants
41‑1 What this Part is about
Grants under this Part are payable to higher education providers and other eligible bodies for a variety of purposes.
Note: This Part does not apply to Table C providers: see section 5‑1.
41‑5 The Other Grants Guidelines
Other grants are also dealt with in the Other Grants Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note: The Other Grants Guidelines are made by the Minister under section 238‑10.
41‑10 Eligibility for grants under this Part
(1) Subject to subsection (2), a body corporate referred to in an item in the third column of the table is eligible for grants under this Part, in respect of the year 2005 or a later year, for the purposes specified in the second column of that item.
| Eligibility for grants under this Part |
| Item | Purpose of grant | Who is eligible |
| 1 | Grants to promote equality of opportunity in higher education | *Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
| 2 | Grants to promote the productivity of higher education providers | *Table A providers |
| 4 | Grants to support national institutes specified in the Other Grants Guidelines for the purposes of this item | *Table A providers |
| 5 | Grants to support the capital development projects of higher education providers | *Table A providers and *Table B providers |
| 6 | Grants to assist with the cost of higher education providers’ superannuation liabilities | *Table A providers |
| 7 | Grants to support research by, and the research capability of, higher education providers | *Table A providers and *Table B providers |
| 8 | Grants to support the training of research students | *Table A providers and *Table B providers |
| 9 | Grants to foster collaboration and reform in higher education | *Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
| 9A | Grants to support diversity and structural reform | *Table A providers, *Table B providers that are universities, and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
| 9B | Grants to support structural adjustment | *Table A providers and *Table B providers that are universities |
| 10 | Grants to support the development of systemic infrastructure used by higher education providers | *Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
| 11 | Grants for activities that: (a) assure and enhance the quality of Australia’s higher education sector; or (b) foster an understanding of the importance of, or promote research and scholarship in, science, social science or the humanities in Australia; or (c) support open access to higher education across Australia. | *Table A providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item |
| 12 | Grants to assist higher education providers with the transitional costs of changes to maximum student contribution amounts | Higher education providers that have provided Commonwealth‑supported places for any year |
| 13 | Grants to encourage higher education providers to engage with industry | *Table A providers |
(2) If the Other Grants Guidelines:
(a) specify a program under which grants for a particular purpose specified in the table are to be paid; and
(b) specify extra conditions of eligibility to receive a grant under the program;
then a body corporate specified in the table in respect of those grants is not eligible for such a grant unless it complies with those extra conditions.
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
(1) A grant is made on the following conditions:
(a) if the grant is made under a program and the Other Grants Guidelines specify conditions that apply to a grant under that program—on the conditions provided for in the guidelines;
(b) if the body receiving the grant is a higher education provider—on the condition that the body must meet the *quality and accountability requirements;
(c) on such other conditions (if any) as the Minister determines in relation to the grant under subsection (2).
(2) The Minister may, in writing, determine conditions in relation to a grant for the purposes of paragraph (1)(c).
(3) A determination under subsection (2) is not a legislative instrument.
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 body to which a grant (the original grant) under this Part has been made in respect of a year fails to spend an amount (the unspent amount) of the grant before the end of the year, then:
(a) unless paragraph (b) applies—the unspent amount is taken to be granted to the body under this Part in respect of the next following year; or
(b) if the *Secretary specifies an amount (not greater than the unspent amount) in relation to the body and the original grant in a determination under subsection (1A)—the specified amount is taken to be granted to the body under this Part in respect of the next following year.
(1A) The *Secretary may, in writing, make a determination for the purposes of paragraph (1)(b) specifying an amount in relation to a body and a grant.
(2) The amount taken to be granted under subsection (1) is taken to be granted for the same purpose as the original grant.
(3) The grant taken to be made under subsection (1) is taken to be made:
(a) under the same conditions as the conditions of the original grant—except the grant is taken to be made in respect of the next following year; or
(b) under such other conditions as are determined by the *Secretary.
(4) Subsection (1) does not apply to a body in relation to a grant if the *Secretary specifies the body in relation to the grant in a determination under subsection (5).
(5) The *Secretary may, in writing, make a determination for the purposes of subsection (4) specifying a body in relation to a grant.
(6) A determination under subsection (1A) or (5) is not a legislative instrument.
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.
41‑95 Alternative constitutional bases
(1) In addition to the effect that it has apart from this section, this Part has the effect it would have if each reference in this Part to a grant were expressly confined to a grant:
(a) to a corporation to which paragraph 51(xx) of the Constitution applies for the purposes of carrying out the corporation’s activities; or
(b) for one or more of the following purposes (as well as for a purpose described in section 41‑10):
(i) a purpose related to trade or commerce with another country, among the States, between a State and a Territory, between 2 Territories or within a Territory;
(ii) a purpose involving the use of postal, telegraphic, telephonic, and other like services;
(iii) a purpose relating to astronomical or meteorological observations;
(iv) a purpose relating to census or statistics;
(v) a purpose relating to aliens;
(vi) a purpose relating to old‑age pensions;
(vii) a purpose relating to the provision of benefits to students or sickness benefits;
(viii) a purpose relating to Aboriginal or Torres Strait Islander people;
(ix) a purpose relating to external affairs;
(x) a purpose relating to the executive power of the Commonwealth;
(xi) a purpose relating to a matter that is peculiarly adapted to the government of a nation and that cannot otherwise be carried on for the benefit of the nation; or
(c) in or in relation to a Territory.
(2) A term used in this section and the Constitution has the same meaning in this section as it has in the Constitution.
Part 2‑4—Commonwealth scholarships
Division 46—Commonwealth scholarships
46‑1 What this Part is about
Grants for scholarships are made to higher education providers who pay the scholarships to students for the purposes of the students’ education.
Certain scholarships may be paid directly to students.
Note: This Part does not apply to Table C providers: see section 5‑1.
46‑5 The Commonwealth Scholarships Guidelines
*Commonwealth scholarships are also dealt with in the Commonwealth Scholarships Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.
Note: The Commonwealth Scholarships Guidelines are made by the Minister under section 238‑10.
46‑10 Classes of Commonwealth scholarships
There are 3 classes of *Commonwealth scholarships:
(a) directly‑paid standard scholarships; and
(aa) indirectly‑paid standard scholarships; and
(b) postgraduate research scholarships.
Note: The Commonwealth Scholarships Guidelines set out the kinds of scholarships in each class.
46‑13 Eligibility of students to receive directly‑paid standard Commonwealth scholarships
If:
(a) the Commonwealth Scholarships Guidelines provide for a particular kind of directly‑paid standard *Commonwealth scholarship; and
(b) those guidelines set out eligibility requirements for that kind of scholarship; and
(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 higher education provider to which a grant (the original grant) under this Part has been made in respect of a year fails to spend an amount (the unspent amount) of the grant before the end of the year, then:
(a) unless paragraph (b) applies—the unspent amount is taken to be granted to the provider under this Part in respect of the next following year; or
(b) if the *Secretary specifies an amount (not greater than the unspent amount) in relation to the provider and the original grant in a determination under subsection (1A)—the specified amount is taken to be granted to the provider under this Part in respec