Federal Register of Legislation - Australian Government

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Fee-Help Guidelines Amendment No. 2

Authoritative Version
  • - F2015L00805
  • No longer in force
Guides & Guidelines as made
This instrument amends the Higher Education Support Act 2003 - Fee-Help Guidelines (03/08/2007) to simplify and streamline certain administrative requirements which currently apply to Open Universities Australia (OUA).
Administered by: Education and Training
Registered 15 Jun 2015
Tabling HistoryDate
Tabled HR17-Jun-2015
Tabled Senate18-Jun-2015
Date of repeal 17 Jun 2015
Repealed by Division 1 of Part 5A of the Legislative Instruments Act 2003

EXPLANATORY STATEMENT

 

Guidelines issued under section 238-10 of the Higher Education Support Act 2003

 

FEE-HELP Guidelines Amendment No. 2

 

Issued by the authority of the Minister for Education and Training

Subject

Higher Education Support Act 2003,

Amendment No. 2 to the FEE-HELP Guidelines

Authority

Section 238-10 of the Higher Education Support Act 2003 (the Act) provides that the Minister may make guidelines providing for matters required or permitted by the Act necessary or convenient to be provided in order to carry out or give effect to the Act. In particular, item 4 of the table in subsection 238-10(1) of the Act to provide for matters set out in Part 3-3 of the Act.

Subsection 33(3) of the Acts Interpretation Act 1901 provides that the power to make an instrument under an Act includes the power to vary or revoke the instrument.

Purpose

This legislative instrument amends the FEE-HELP Guidelines to simplify and streamline certain administrative requirements which currently apply to Open Universities Australia (OUA). In doing so, the Instrument replicates the current administrative requirements which apply to higher education providers. Specifically, the Instrument will simplify and streamline the requirements relating to the submission and publication of tuition fees, census dates and published Equivalent Full-time Student Load (EFTSL) values.

The legislative instrument also updates the provisions relating to FEE‑HELP for bridging courses for overseas‑trained professionals by removing the table of professional occupations and assessing bodies from the FEE-HELP Guidelines and directing the reader to the primary source of that information which is the Skilled Occupation List (SOL) included in a legislative instrument, as in force from time to time, specifying categories of professional occupations and relevant assessing authorities made under regulations 1.15I and 2.26B of the
Migration Regulations 1994.

Commencement

This legislative instrument commences on the day after registration on the Federal Register of Legislative Instruments.

Consultation

Consultation was undertaken with OUA regarding the proposed changes to streamline and simplify the requirements to submit and publish tuition fees, census dates and EFTSL values in order to reduce administrative burden. The Department also consulted with the higher education providers that had the 10 highest numbers of enrolments of students undertaking bridging courses for overseas-trained professionals in 2012. All 10 providers supported the proposed amendments.

 

Consultation was also undertaken with the higher education provider sector in relation to the proposed amendments to simplify and streamline the requirements for publishing schedules, census dates and EFTSL values. This consultation was undertaken throughout 2013 and detailed at the 2013 Tertiary HELP Provider forum. The proposed amendments contained in the Instrument are a result of these consultations and reflect similar amendments made to the Higher Education Provider Guidelines 2012) and the Higher Education Support Act 2003 - Administration Guidelines.

Regulation Impact Statement

The Office of Best Practice Regulation was consulted in the preparation of the
FEE-HELP Guidelines and assessed that a Regulation Impact Statement was not required.  

 

The amendments do not place any additional regulatory requirements on higher education providers or OUA.

Explanation of provisions

Item 1 – Table of Contents

 

Inserts the word “Courses” into the title of chapter 2 in the Table of Contents.

 

Item 2 – Chapter 1 - Interpretation

 

Subchapter 1.1 provides guidance on the interpretation of the FEE-HELP Guidelines. 

 

Paragraph 1.1.5 is repealed and replaced, the result being:

 

·         A definition for the Australian and New Zealand Standard Classification of Occupations (ANZSCO) is inserted.

 

·         The definition of Department is replaced to provide a definition based on function rather than nomenclature. The Department that currently administers the FEE-HELP Guidelines at the time of the registration of this Instrument is the Department of Education and Training.

 

·         A definition for published census date(s) is inserted to provide for the ability for OUA to publish the census date as a specific date, or as referenced by OUA.

 

·         A definition of published EFTSL value(s) is inserted.

 

·         A definition of published tuition fee means a fee included in a schedule of tuition fees published on OUA’s website pursuant to paragraph 3.25.15(b) of FEE-HELP Guidelines.

 

·         A definition for the Skilled Occupation List is inserted[1].

 

·         Other existing terms remain, although the order has altered.

 

Description of Skilled Occupation List

 

The Skilled Occupation List (SOL), as defined in the FEE-HELP Guidelines is a legislative instrument, as in force from time to time, specifying categories of professional occupations and relevant assessing authorities under regulations 1.15I and 2.26B of the
Migration Regulations 1994

 

The Instrument also updates the provisions relating to FEE HELP for bridging courses for overseas trained professionals by removing the table of professional occupations and assessing bodies from the FEE-HELP Guidelines and, directs the reader to the primary source of that information, which is held on the website of the Department of Immigration and Border Protection.

This amendment removes the requirement to update the FEE-HELP Guidelines as the SOL is updated, thereby maintaining currency with Department of Immigration and Border Protection policies.

 

The SOL is a disallowable instrument and is incorporated by reference as in force from time to time to ensure alignment and consistency across government agencies.

 

The SOL can be viewed in Schedule 1 to the Specification of Occupations, a Person or Body, a Country or Countries, made under the Migration Regulations 1994 (F2013L01238).

 

The Department will publish a direct link from the Department’s ‘Study Assist’ website (www.studyassist.gov.au) to a copy of the SOL located on the Department of Immigration and Border Protection website, thereby ensuring that up-to-date information is readily accessible.

 

Pursuant to section 104-50 of the Act, the SOL specifies assessing bodies that may issue assessment statements for the purposes of FEE-HELP for their listed professional occupation.  Where an assessing body is not limited to a particular State or Territory, it may issue assessment statements in all States and Territories.

 

Pursuant to section 104-60 of HESA, listed professional occupations are those occupations listed on the SOL that are designated with a prefix numeral of “2” under ‘Group 2 Professionals’ of the ANZSCO (catalogue Number 1220.0, 2013, Version 1.2).

 

Item 3 – Chapter 2 – Listed professional occupations and assessing bodies

 

Chapter 2 sets out the requirements for bridging courses for overseas-trained professionals in relation to eligibility for FEE-HELP.

 

Subchapter 2.5 sets out listed professional occupations and the assessing bodies for those occupations.   

 

·         The table of listed profession occupations and assessing bodies that were listed under previous paragraph 2.5.10 has been deleted as higher education providers are now directed by paragraphs 2.5.5 and 2.5.10 to the Skilled Occupation List (SOL) for the list of professional occupations and assessing bodies, and to the Australian and New Zealand Standard Classification of Occupations for categorisation of professional occupations. This amendment removes the requirement to update the FEE-HELP Guidelines as the SOL is updated, thereby maintaining currency with Department of Immigration and Border Protection policies.

 

·         To this end, paragraph 2.5.5 and 2.5.10 have been amended as follows:

 

o   The revised paragraph 2.5.5 provides that for the purposes of section 104-60 of the Act, listed professional occupations are those occupations listed on the SOL that are categorised as professional occupations under regulation 1.15I of the Migration Regulations 1994, and designated with a prefix numeral of “2” under ‘Group 2 Professionals’ of the Australian and New Zealand Standard Classification of Occupations collection (catalogue Number 1220.0, 2013, Version 1.2).

 

o   The revised paragraph 2.5.10 provides that under section 104-50 of the Act, assessing bodies may issue assessment statements for the purposes of
FEE-HELP for their listed professional occupation.  Pursuant to subsection
104-55(3) of the Act, assessing bodies may have assessing authority limited to specific States or Territories. Assessing bodies for listed professional occupations are those bodies listed as assessing authorities in the Skilled Occupation List. Where an assessing body is not limited to a particular State or Territory, it may issue assessment statements in all States and Territories.

 

Item 4 – Subchapter 3 – Quality Requirements

 

Subchapter 3.10 sets out the Quality Requirements for OUA.  Two minor typographical edits are made:

 

·         Paragraph 3.10.1 has been amended to change the word “though” to “through”.

 

·         Paragraph 3.10.10 has been amended to change the word “affect” to “effect”.

 

Item 5 and 6 – Subchapter 3.15 – Fairness Requirements

 

Subchapter 3.15 sets out the Fairness Requirements for OUA.

 

·         Previous paragraph 3.15.40(a) has been repealed and substituted with:

 

(a)  the Australian Privacy Principles set out in Schedule 1 to the Privacy Act 1988; and

 

·         Previous paragraph 3.15.51 has been amended to remove specific referencing to the Privacy Officer in a particular department to allow for any future changes to the name of the Department that administers FEE-HELP Guidelines. The amendment also updates the relevant email address.

 

Item 7 to Item 10 – Subchapter 3.25 - Tuition Fee Requirements

 

Subchapter 3.25 sets out the Tuition Fee Requirements for OUA including information regarding the period for publishing schedules of tuition fees for OUA as well as requirements for submission to the Minister and variations.  

 

Item 7 – paragraph 3.25.6

 

·         Paragraph 3.25.6 has been amended to remove reference to two stipulated periods and replace them with a period that commences on the earliest enrolment date for the unit as determined by OUA and ends on the completion date for the unit as determined by OUA to increase flexibility.

 

·         The revised paragraph 3.25.6 also provides that if it is the case that the dates defined as the period for the purposes of subsections 19-90(1) and 19-95(1) of the Act by the Higher Education Provider Guidelines differ from the dates stated above then the dates stipulated by the Higher Education Provider Guidelines shall be the definition of period for the purposes of paragraphs 3.25.10 and 3.25.15 of the FEE‑HELP Guidelines.

 

Item 8 – paragraph 3.25.15

 

·         Paragraph 3.25.15 and subparagraphs contained therein have been amended to include reference to the content, form, timing, manner and location of submission and publication of tuition fee schedules by OUA, with increased flexibility for the date by which and the manner in which OUA must submit and publish schedules.

·         However, the revised paragraph 3.25.15 also provides that if it is the case that the Higher Education Provider Guidelines stipulate dates for higher education providers to deliver equivalent schedules, and where the dates stipulated by the Higher Education Provider Guidelines differ from the dates stated in paragraph 3.25.15(c), then the dates stipulated by the Higher Education Guidelines shall be the dates by which OUA should deliver schedules for the purposes of paragraph 3.25.15 of the FEE-HELP Guidelines.

Item 9 – paragraph 3.25.20

 

·         Paragraph 3.25.20 and subparagraphs contained therein have been amended to define new requirements for varying schedules by specifying the circumstances and date by which OUA may vary a published tuition fee without Ministerial approval.

 

·         However, the revised paragraph 3.25.20 also provides that if it is the case that the dates and circumstances stipulated by the Higher Education Provider Guidelines for the variation of tuition fees by higher education providers differ from the dates and circumstances stipulated by paragraph 3.25.20(a) and (b) in any manner then the dates and circumstances stipulated by the Higher Education Provider Guidelines shall apply for the purposes of paragraph 3.25.20 of the FEE-HELP Guidelines.

 

Item 10 – paragraph 3.25.25

 

·         Paragraph 3.25.25 has been amended to specify the manner in which OUA must administer replacement schedules.

 

Item 11 to Item 16 – Subchapter 3.30 – Administrative Requirements

 

Subchapter 3.30 sets out the administrative requirements for OUA, including the requirements for publishing census dates and EFTSL values. The subchapter is amended to remove reference to two stipulated periods and replace these with a publication date to be on or before the earliest enrolment date for the units of study as determined by OUA.

 

Item 11 – paragraph 3.30.25

 

·         Paragraph 3.30.25 has been amended to provide clarity as to how OUA must determine the census date.

 

Item 12 – paragraph 3.30.26

 

·         Paragraph 3.30.26 has been amended to provide for increased flexibility for the date by which a higher education provider must publish census dates and EFTSL values. The period is redefined as commencing on the earliest enrolment date for the unit as determined by OUA and ending on the completion date for the unit as determined by OUA.

 

·         The revised paragraph 3.30.26 also provides that if it is the case that the dates defined as periods for the purposes of subsection 169‑25(1) of the Act by the Administration Guidelines differ from the dates stated in paragraph 3.30.26 then the dates stipulated by the Administration Guidelines shall be the definition of period for the purposes of paragraph 3.30.30 of the FEE-HELP Guidelines.

 

Item 13 – paragraph 3.30.30

 

·         Paragraph 3.30.30 has been amended to provide for increased flexibility by requiring OUA to publish the census dates (“published census date(s)”) and EFTSL values (“published EFTSL value(s)”) for each unit of study to which access is provided by OUA during a period by posting it on OUA’s website on or before the earliest enrolment date for the units of study as determined by OUA.

 

·         However, the revised paragraph 3.30.30 provides that if it is the case that the dates stipulated by the Administration Guidelines for the publishing of census dates and EFTSL values by higher education providers differ from the dates stated above then the dates stipulated by the Administration Guidelines shall be the governing dates for paragraph 3.30.30 of the FEE-HELP Guidelines.

 

Item 14 – paragraph 3.30.35

 

·         Paragraph 3.30.35 and subparagraphs contained therein have been amended to provide for new requirements for the circumstances and date by which OUA may vary a published census date or EFTSL value without Ministerial approval.

 

·         The revised paragraph 3.30.35 will also provide that if it is the case that the dates and circumstances stipulated by the Administration Guidelines for the variation of census dates and EFTSL values by higher education providers without written Ministerial approval differ from the dates and circumstances stipulated by these new requirements in paragraph 3.30.35 of the FEE-HELP Guidelines in any manner then the dates and circumstances stipulated by the Administration Guidelines shall apply for the purposes of paragraph 3.30.35 of the FEE‑HELP Guidelines.

 

Item 15 – paragraph 3.30.36

 

·         Paragraph 3.30.36 has been inserted to specify that, without limiting the generality of paragraph 3.30.35(a), a student will be disadvantaged by a variation that:

 

a)    reduces the published EFTSL value for a unit of study; or

 

b)    brings the published census date for a unit of study forward in time.

 

Item 16 – paragraph 3.30.37

 

Paragraph 3.30.37 has been amended so as to provide that:

 

o   If OUA varies a published census date or published EFTSL value under paragraph 104‑4(5A)(a) of the Act, OUA must publish the varied census date or EFTSL value on OUA’s website as soon as practicable after making that decision.

 

o   If OUA varies a published census date under paragraph 1044(5A)(b) of the Act, OUA must publish the variation by the date, and in the manner, specified by the Minister in the approval.

 

·         The revised paragraph 3.30.37 also provides that if it is the case that the date and circumstances stipulated by the Administration Guidelines for the publication of the varied census dates or EFTSL values differ from the date and circumstance stipulated above in any manner, then the conditions and dates stipulated by the Administration Guidelines shall apply for the purposes of paragraph 3.30.37 of the
FEE-HELP Guidelines.


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 
Higher Education Support Act 2003
 
FEE-HELP Guidelines Amendment No. 2  

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  

 

Overview of the Legislative Instrument

 

FEE-HELP Guidelines Amendment No.2 (the Instrument) is made by the Minister under subsection 238-10(1) of the Higher Education Support Act 2003 (the Act). Subsection 33(3) of the Acts Interpretation Act 1901 provides that the power to make an instrument under an Act includes the power to vary or revoke the Instrument.

 

The purpose of the Instrument is to give effect to matters set out in Part 3-3 of the Act, as related to FEE-HELP for bridging studies for overseas-trained professionals, and FEE-HELP for students of Open Universities Australia (OUA). 

 

The Instrument amends the FEE-HELP Guidelines by removing the table that prescribes listed professional occupations and assessing bodies. The amended guidelines will instead prescribe listed professional occupations and assessing bodies by reference to the Skilled Occupation List (SOL)[2] included in a legislative instrument, as in force from time to time that specifies categories of professional occupations and relevant assessing authorities under regulations 1.15I and 2.26B of the Migration Regulations 1994.

 

By removing the table from the current FEE-HELP Guidelines and including the list by reference, it removes the need for ongoing changes to the legislative instrument whenever there is a change to the list.

 

The Department will publish a direct link from the Department’s ‘Study Assist’ website (www.studyassist.gov.au) to a copy of the SOL located on the Department of Immigration and Border Protection website, thereby ensuring that up-to-date information is readily accessible.

 

The Instrument also amends provisions of the FEE-HELP Guidelines that set out requirements relating to the submission and publication of tuition fees for units of study by OUA. The purpose of this amendment is to simplify and streamline these requirements in order to reduce the administrative burden placed on OUA.

 

Human rights implications

 

Right to education

 

Simplifying and streamlining certain administrative requirements which currently apply to OUA will enable OUA to focus on providing education rather than unnecessary administration.

 

The Instrument engages the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 13 of the ICESCR provides that the right to education is engaged as the Instrument may impact on a person’s eligibility to receive FEE-HELP for bridging courses (this enables overseas‑trained professionals to meet the requirements for entry to specified occupations in Australia). Whether a person is undertaking a bridging course for overseas-trained professionals depends in part on whether the person holds an assessment statement issued by an assessing body for a listed professional occupation (see section 104-45 of the Act).

 

Chapter 2 of the FEE-HELP Guidelines specifies the listed professional occupations and assessing bodies for the purposes of the Act. Currently Chapter 2 replicates the SOL which is contained in a legislative instrument made under the Migration Regulations 1994. However the SOL is subject to changes making it necessary for the FEE-HELP Guidelines to be updated.

 

The amendments contained in the Instrument will mean that the FEE-HELP Guidelines will prescribe listed professional occupations and assessing bodies by reference to the legislative instrument containing the SOL, as in force from time to time. This will obviate the need to amend the FEE-HELP Guidelines when changes to the list occur. This will ensure that the Government’s skilled migration agenda and the eligibility requirements of overseas skilled professionals to access appropriate bridging courses are accurately aligned.

 

The Instrument is compatible with the right to education.

 

Conclusion

 

This Legislative Instrument is compatible with human rights because it advances the protection of human rights.

 

 

Christopher Pyne

Minister for Education and Training



[1] Note: The Skilled Occupation List could in 2014 be viewed in Schedule 1 to the Specification of Occupations, a Person or Body, a Country or Countries, made under the Migration Regulations 1994 (F2013L01238).

[2] Note: The Skilled Occupation List could in 2014 be viewed in Schedule 1 to the Specification of Occupations, a Person or Body, a Country or Countries, made under the Migration Regulations 1994 (F2013L01238).