Higher Education Provider Guidelines 2012

made under section 238–10 of the

Higher Education Support Act 2003

Compilation No. 5

Compilation date:    19 June 2020

Includes amendments up to:  F2020L00754

Prepared by the Department of Education, Skills and Employment, Canberra

Commonwealth of Australia

Higher Education Support Act 2003

HIGHER EDUCATION PROVIDER GUIDELINES 2012

(i)     CITATION

These Guidelines may be cited as the Higher Education Provider Guidelines 2012.

(ii)     AUTHORITY

These Guidelines are made pursuant to item 6 of the table in section 238-10 of the Higher Education Support Act 2003 (the Act) for the purposes of Part 2-1 of the Act.

(iv) TRANSITIONAL ARRANGEMENTS

The revocation of the Former Guidelines does not affect the validity of a payment or decision made under those guidelines. A decision made under the Former Guidelines is taken to continue to have effect as if it were made under the Higher Education Provider Guidelines 2012.

COMMONWEALTH OF AUSTRALIA

Higher Education Support Act 2003

HIGHER EDUCATION PROVIDER GUIDELINES

TABLE OF CONTENTS

CHAPTER 1 INTRODUCTION

CHAPTER 2 THE TUITION PROTECTION REQUIREMENTS

CHAPTER 3 HIGHER EDUCATION PROVIDER APPLICATION FEE

CHAPTER 4 GRIEVANCE AND REVIEW PROCEDURES

CHAPTER 5 PUBLICATION AND OTHER REQUIREMENTS FOR STUDENT CONTRIBUTION AMOUNTS AND TUITION FEES

CHAPTER 6 FEES IN RESPECT OF OVERSEAS STUDENTS

CHAPTER 7 FEES FOR GOODS AND SERVICES INCIDENTAL TO STUDIES

CHAPTER 8 QUALITY, ACCOUNTABILITY AND OTHER ADMINISTRATIVE REQUIREMENTS IN RELATION TO CERTAIN HIGHER EDUCATION PROVIDERS

CHAPTER 9 DETERMINING WHETHER STUDENTS ARE GENUINE STUDENTS

CHAPTER 1 INTRODUCTION

1.1 PURPOSE

1.1.1 The purpose of these Guidelines is to:

(a) set out the tuition protection requirements which a body corporate must fulfil to be approved by the Minister as a higher education provider under sections 16-30, 19-66A, subsections 166-5(1), 166-10(3), 166-20(3), 166‑15(5), 167-10(2), and paragraphs 166-25(2)(f) and (3)(g), 166‑15(3)(b) of the Act and with which higher education providers other than Table A providers must comply in order to maintain their approval as higher education providers under the Act;

(aa) set out the application fee for a body corporate’s application to be approved as a higher education provider;

(b) set out the grievance procedures which a body corporate must meet in order to be approved as a higher education provider under the Act and with which higher education providers other than Table A providers must comply in order to maintain their approval as higher education providers under the Act;

(c)  set out procedures to be followed by review officers reviewing reviewable decisions under Chapter 3 of the Act;

(d) specify periods under subsections 19-87(1), 19-90(1) and 19-95(1) of the Act;

(e) specify the date by which a higher education provider must publish the schedule of the student contribution amounts for places and tuition fees for a particular period under paragraph 19-95(2)(b) of the Act;

(f) specify matters to which a higher education provider must not have regard when setting student contribution amounts or tuition fees under subsections 19‑87(2A) or 19-90(3) of the Act;

(g) specify the date before which a variation to a:

(i) student contribution amount must be made under subparagraph 19‑87(3)(a)(i) of the Act; and

(ii) tuition fee must be made under subparagraph 19-90(4)(a)(i) of the Act.

(h) specify the circumstances in which a:

(i) student contribution amount may be varied under subparagraph 19‑87(3)(a)(ii) of the Act; and

(ii) tuition fee may be varied under subparagraph 19‑90(4)(a)(ii) of the Act.

(i) specify the date by which information on student contribution amounts for places in units, or tuition fees, to apply to students in student cohorts must be published and made publicly available under subsection 19‑97(2) of the Act before section 19-97 of the Act  was repealed by item 6 of Schedule 3 of the Budget and Other Measures Act;

(j) specify the date before which, and the circumstances in which, a higher education provider may revoke a saved determination under item 13(4) or item 14(4) of the Budget and Other Measures Act;

(k) specify in relation to the repayment of amounts where subsections 36-20(3) and 36‑20(4) of the Act apply:

(i) the amount (if any) that is to be paid to the person; and

(ii)  the amount (if any) that is to be paid to the Commonwealth; and

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

(l) specify in relation to the re-crediting of a person’s FEE-HELP balance in circumstances where subsections 110-5(1A) and 110-5(1B) of the Act apply:

(i) the amount (if any) that is to be paid to the Commonwealth; and

(ii) the person (if any) who is to pay the amounts;

(m) specify the following tuition protection matters:

(i) matters relating to the collection of levies payable for tuition protection, including notices for payments, when payments become due and payable, extensions to the due date, penalties, refund of a levy or penalties, review of decisions for collection or recovery of a levy;

(ii) circumstances to which the HELP Tuition Protection Director may have regard to in the placement of an affected student;

(iii) information the HELP Tuition Protection Director may request from a provider in relation to students affected by the provider default;

(iv) requirements for a provider notice to affected students upon provider default;

(v) tuition protection payments from the HELP Tuition Protection Fund;

(vi) the classes of providers who are exempt from the requirement to pay one or more of the components of the tuition protection levies;

(n) detail the requirements for fees in respect of overseas students which are the fees referred to in paragraph 19-102(3)(d) of the Act;

(o) specify certain matters in relation to the quality and accountability requirements and other administrative requirements that apply to higher education providers approved under section 16‑25 of the Act (see Chapter 8);

(p) specify matters to be taken into account in determining whether students undertaking units of study provided by higher education providers approved under section 16‑25 of the Act are genuine students (see Chapter 9).

1.5 INTERPRETATION

1.5.1 Unless the contrary intention appears, the terms within these Guidelines have the same meaning as in the Act.

1.5.5 Terms in these Guidelines that are in italics have the meanings given in paragraph 1.5.10 of these Guidelines.

1.5.10 In these Guidelines, unless the contrary intention appears:

 academic matters includes those matters which relate to student progress, assessment, curriculum and awards in a course of study.

 accounting standards has the same meaning as in the Corporations Act 2001.

Act means the Higher Education Support Act 2003.

Affected Student means a student who is enrolled with a higher education provider to whom Part 5-1A of the Act applies, and is unable to complete a course as described at subsection 166-10 of the Act, because a higher education provider defaults.

Budget and Other Measures Act means the Higher Education Legislation Amendment (2006 Budget and Other Measures) Act 2006.

Business Day means, in relation to the doing of an action in a place, any day other than a Saturday, Sunday or public holiday in that place.

Department means the department that administers these Guidelines.

Guidelines means these Higher Education Provider Guidelines 2012.

General Manager means the person holding, occupying or performing the duties of the position of General Manager or an equivalent position in the Department responsible for the administration of access to Commonwealth supported places, HECS-HELP and FEE‑HELP assistance.

 non-academic matters includes those matters which do not relate to student progress, assessment, curriculum and awards in a course of study and includes complaints in relation to personal information that the provider holds in relation to the student, and about the administration of the Commonwealth Scholarships Program.

Registered higher education provider has the same meaning given by the TEQSA Act.

saved determination has the meaning given to it under item 13(1) or item 14(1), as the context requires, of Schedule 3 of the Budget and Other Measures Act.

student cohort has the meaning given to it under the Act before the definition was repealed under item 10 of the Budget and Other Measures Act.

TEQSA Act means the Tertiary Education Quality and Standards Agency Act 2011.

victimise means to act or omit to act towards a person in a way which is intended to cause disadvantage to that person because they have made a complaint, or may make a complaint, or may be or are the subject of a complaint.

CHAPTER 2 THE TUITION PROTECTION REQUIREMENTS

2.1  Introduction

2.1.1 This chapter of the Guidelines sets out the requirements for tuition protection for the purposes of section 16-30 of the Act. The tuition protection requirements are the requirements set out in Part 5-1A of the Higher Education Support Act 2003, including these Guidelines.

2.1.5 The tuition protection requirements have five parts:

• Part 1: Providers of a kind
• Part 2: Requirements for the determination and collection of levies
• Part 3: Notices of provider default
• Part 4: Other student placement service requirements; and
• Part 5: Payments to a provider of replacement course.

2.1.10 A higher education provider, other than a Table A provider or provider at Part 1 of these Guidelines, must satisfy the Secretary that it complies with Part 2, Part 3 and Part 5 of the tuition protection requirements.

2.5  Part 1: Providers of a kind

2.5.1 This Part prescribes providers of a kind to whom Part 5-1A of the Act does not apply, for the purposes of paragraph 166-5(1)(b) of the Act.  Part 5-1A does not apply to a provider if the provider is:

 (a) owned by the Commonwealth, a State or a Territory; or

 (b) established under one of the following:

 (i) the Technical and Further Education Commission Act 1990 (NSW);

 (ii) the Education and Training Reform Act 2006 (Vic.);

 (iii) the TAFE Queensland Act 2013 (Qld);

 (iv) the Vocational Education and Training Act 1996 (WA);

 (v) the TAFE SA Act 2012 (SA);

 (vi) the Training and Workforce Development Act 2013 (Tas.);

 (vii) the Canberra Institute of Technology Act 1987 (ACT).

2.10  Part 2: Requirements for the determination and collection of levies

2.10.1 This Part sets out the requirements for the purposes of section 19‑66A of the Act for the determination and collection of levy amounts.

Note: Notices for the collection and recovery of a levy to a leviable provider are given in writing and are emailed to the primary contact listed in the HELP IT System (HITS).

Notice of the levy

2.10.5 The HELP Tuition Protection Director must give a written notice to each higher education provider liable to pay a HELP tuition protection levy that sets out for the provider:

(a)   the amount of the levy; and

(b)   the calculation for each levy component that applies to the higher education provider; and

(c)   the day by which the higher education provider must pay the levy, which must be at least 30 days after the written notice is given to the provider.

Notice of the levy for a higher education provider that is a leviable provider after 30 June in a calendar year

2.10.10 Where a higher education provider becomes a leviable provider after 30 June in a calendar year, and continues to be a leviable provider in the following calendar year, the HELP Tuition Protection Director must give the higher education provider a written notice of the levy for the first year in the next calendar year (levy notice).

2.10.15  The levy notice must set out the amounts for the administrative fee component of the HELP tuition protection levy imposed under subsection 8(1) of the Higher Education Support (HELP Tuition Protection Levy) Act 2020 for:

(a)   the first year the higher education provider became a leviable provider; and

(b)   the year in which the notice is issued.

Note: This means there will be two administrative fee components set out in the levy notice, and payable, so that the higher education provider is compliant with the requirements under part 5-1A of the Act.

Overdue notice

2.10.20 The HELP Tuition Protection Director may give a written overdue notice to comply with a levy notice by the end or within 7 days of the due day. The overdue notice must specify:

(a)   the amount that is still owing; and

(b)   state the day the amount must be paid by the higher education provider.

Review of levy determination or collection

2.10.25 A leviable provider may make a request for review in writing to the HELP Tuition Protection Director within 7 days of a levy notice in relation to a determination of a levy component or components.

2.10.30 If a request for review is made by a leviable provider the HELP Tuition Protection Director must review the decision and may:

(a)   affirm, vary or set aside the levy determined in the levy notice; and

(b)   if the decision is set aside  make such other decision as is appropriate.

Note: The HELP Tuition Protection Director may give notice of a change to a due date for payment of a levy where a review decision is likely to occur on or after the due date specified in the levy notice.

Review decision

2.10.35 The HELP Tuition Protection Director must give notice of the review decision to the higher education provider within 7 days of the decision. The notice of the review decision must:

(a)   set out the reasons for the decision; and

(b)   where the review decision causes the calculation, total amount or due date of the levy to be varied or set aside, issue a new levy notice with a due date at least 30 days after the date the provider is notified of the review decision.

Administrative Appeals Tribunal review

2.10.40 An application may be made to the Administrative Appeals Tribunal for the review of a                  decision that has been affirmed, varied or set aside under section 2.10.30.

Refund

2.10.45 If an amount paid by a leviable provider exceeds the amount determined in the levy notice, or the HELP Tuition Director otherwise determines that a refund is payable, the HELP Tuition Protection Director must pay the refund from the HELP Tuition Protection Fund.

2.15  Part 3: Notices of provider default

2.15.1 This Part sets out the requirements under sections 166-15 and 166-20 of the Act where the higher education provider must give the information specified to the HELP Tuition Protection Director and to an affected student within the specified timeframes.

Notice to the HELP Tuition Protection Director

2.15.5  A notice given under subsection 166-15(2) of the Act must be given in writing and include the following information:

(a)   the circumstances of the default;

(b)   the number of students in relation to whom the higher education provider has defaulted;

(c)    advice about:

(i)      whether the higher education provider intends to teach units of study so that students are able to complete the units, or provide a refund to those students; and

(ii)    if so, how the higher education provider intends to teach the units and/or refund students.

Note: This information is in addition to that required under subsection 166-15(2) of the Act.

2.15.10 A notice given under subsection 166-15(3) of the Act must also include the following information in a form requested by the Director:

(a)   student contact hours;

(b)   mode of study and location of study, where the unit(s) of study are delivered face-to-face, for each unit of study affected by the default;

(c)    unit hours;

(d)   work integrated learning and internship requirements for each course of study affected by the default.

Note: This information is in addition to that required under subsection 166-15(3) of the Act.

Notice to an affected student

2.15.15  A written notice given under subsection 166-20(2) of the Act must include:

(a)   the name of the course of study affected by the default; and

(b)   the day the course of study ceased to be provided; and

(c)    a copy of the affected student’s transcript for units of study already completed; and

(d)   details of where to get information from the Australian Government Department of Education about tuition protection.

2.20  Part 4: Other student placement service requirements

Placement service for an affected student who had deferred their study at the time of higher education provider default

2.20.1 Where an affected student had deferred their study at the time a higher education provider defaults and the student did not receive tuition protection assistance at that time, the HELP Tuition Protection Director must assist the student if the student later seeks tuition protection assistance.

2.20.5 In providing tuition protection assistance to an affected student who deferred their study, the HELP Tuition Protection Director must have regard to whether a replacement course determined to be a suitable replacement course under section 166-25 of the Act immediately following the higher education provider default, continues to be a suitable replacement course.

2.20.10 In providing student placement services to an affected student who had deferred their study, the HELP Tuition Protection Director must comply with all of the requirements under section 166-25 of the Act.

2.25  Part 5: Payment to a provider of a replacement course

2.25.1 This Part provides for payments in connection with tuition protection under paragraph 167-10(1)(a) of the Act.

2.25.5    The HELP Tuition Protection Director may make a payment from the HELP Tuition Protection Fund to the higher education provider of a replacement course where the HELP Tuition Protection Director is satisfied that the provider has met its obligations to the student under section 166-30 of the Act, and one of the following requirements is met:

(a)   the student is enrolled and the course census date has passed; or

(b)   the student is enrolled and 6 weeks has passed since the student commenced the course.

Who can receive a payment

2.25.10 An amount paid under this Part must be paid by the HELP Tuition Protection Director to the higher education provider of the replacement course.

Maximum amount of a payment

2.25.15 The HELP Tuition Protection Director may make a payment up to a maximum amount of $2000 for each affected student.

CHAPTER 3 HIGHER EDUCATION PROVIDER APPLICATION FEE

3.1 Purpose

3.1.1 The purpose of this chapter is to set out the application fee for a body corporate’s application to be approved as a higher education provider.

3.2 Higher education provider application fee

3.2.1 For the purposes of paragraph 16-40(2)(c) of the Act, the fee is set out in the table below.

CHAPTER 4 GRIEVANCE AND REVIEW PROCEDURES

4.1 PURPOSE

4.1.1 The purpose of this chapter is:

(a) to ensure that all higher education providers other than those listed on Table A of the Act have a grievance procedure in place to ensure effective and fair handling of complaints about both academic and non-academic matters. (See paragraphs 19‑45(1)(a) and (b) and subsection19-45(2) of the Act.); and

(b) to set out procedures that review officers must follow when reviewing reviewable decisions of higher education providers under Chapter 3 of the Act. (See subsection19‑45(4) of the Act.)

4.5 REQUIREMENTS FOR GRIEVANCE PROCEDURES

4.5.1 A higher education provider other than a Table A provider must have a grievance procedure to deal with complaints:

(a) from the provider’s students, and from persons seeking to enrol in courses of study with the provider, relating to non-academic matters; and

(b) from the provider’s students, relating to academic matters.

4.5.5 These grievance procedures must contain the following elements:

(a) an arrangement for handling complaints which is easily accessible to students; is without charge, or at reasonable cost to students; and encourages timely resolution; and

(b) an arrangement for the internal investigation of complaints which remain unresolved by the process outlined at (a) by an independent and impartial senior officer of the provider nominated by the provider, or dedicated complaints committee or unit established by the provider; and

(c) a provision for external review of decisions made under paragraph (b) by an independent person or body established or nominated by the higher education provider.

4.5.10 The higher education provider must:

(a) have a mechanism in place to implement the grievance procedures, including implementation of recommendations arising from any external review under paragraph 4.5.5(c);

(b) ensure that the grievance procedures are complete, unambiguous and agreed to and ratified by the provider’s governing body;

(c) not victimise or discriminate against any complainant or respondent;

(d) make details of the grievance procedures publicly available;

(e) communicate the grievance procedures in writing to its staff and train its staff in their application;

(f) specify reasonable timelines for responses to each stage of the process;

(g) allow the complainant and/or respondent to be accompanied and assisted by a third party if desired;

(h) give reasons and full explanation in writing for decisions and actions taken as part of the procedures, if requested by the complainant and/or respondent;

(i) keep appropriate records of all grievances for at least five years, and allow parties to the complaint appropriate access to these records;

(j) ensure that such records are treated as confidential.

4.5.15 Students or persons seeking to enrol in course of study with a provider are entitled to access the grievance procedures as set out by that provider, regardless of the location of the campus at which the grievance has arisen, the student’s place of residence or the mode in which they study.

4.5.20 The procedures set out in the grievance procedures document do not replace or modify procedures or any other responsibilities which may arise under other higher education provider policies or under statute or any other law.

4.10 REQUIREMENTS FOR REVIEWING DECISIONS OF A HIGHER EDUCATION PROVIDER IN RELATION TO ASSISTANCE UNDER CHAPTER 3 OF THE ACT

4.10.1 In reviewing reviewable decisions made under Chapter 3 of the Act, providers must comply with the requirements of this section 4.10 and of Division 209 of the Act.

4.10.5 The higher education provider must acknowledge receipt of an application for review of a reviewable decision in writing and inform the applicant that, if the reviewer has not advised the applicant of a decision within 45 days of receiving the application for review, the reviewer is taken to have confirmed the original decision.

4.10.10    The reviewer of a reviewable decision must inform applicants of their right to apply to        the Administrative Appeals Tribunal for a review of the reviewable decision that has been confirmed, varied or set aside under section 209-5 or 209-10 of the Act, and provide the contact details of the closest Administrative Appeals Registry and the approximate costs of lodging an appeal with the Administrative Appeals Tribunal. 

CHAPTER 5  PUBLICATION AND OTHER REQUIREMENTS FOR STUDENT CONTRIBUTION AMOUNTS AND TUITION FEES

5.1 PURPOSE

5.1.1 The purpose of this chapter is to specify the:

(a) periods under subsections 19-87(1), 19-90(1) and 19-95(1) of the Act;

(b) date by which a higher education provider must publish the schedule of student contribution amounts for places and tuition fees for a particular period under paragraph 19‑95(2)(b) of the Act;

(c) matters to which a provider must not have regard when setting student contribution amounts or tuition fees under subsections 19-87(2A) and 19-90(3) of the Act;

(d) date before which a variation to a:

(i) student contribution amount must be made under subparagraph 19‑87(3)(a)(i) of the Act; and

(ii) tuition fee must be made under subparagraph 19-90(4)(a)(i) of the Act;

(e) circumstances in which a:

(i) student contribution amount may be varied under subparagraph 19‑87(3)(a)(ii) of the Act; and

(ii) tuition fee may be varied under subparagraph 19‑90(4)(a)(ii) of the Act;

(f) date by which information on student contribution amounts for places in units, or tuition fees, to apply to students in student cohorts must be published and made publicly available under subsection 19-97(2) of the Act before section 19-97 of the Act was repealed by item 6 of Schedule 3 of the Budget and Other Measures Act;

(g) date before which a higher education provider may revoke a saved determination under item 13(4) or item 14(4), as the context requires, of Schedule 3 of  the Budget and Other Measures Act; and

(h) circumstances in which a higher education provider may revoke a saved determination under item 13(4) or item 14(4), as the context requires, of Schedule 3 of the Budget and Other Measures Act.

(i) the form in which a higher education provider must give the Minister a schedule of student contribution amounts for places and tuition fees under paragraph 19-95(1)(a) to the Act

5.5 PERIOD

5.5.1 For the purposes of subsections 19-87(1), 19-90(1) and 19-95(1) of the Act, the period commences on the earliest enrolment date for the unit of study as determined by the higher education provider and ends on the completion date for the unit of study as determined by the higher education provider.

5.5.5 The periods specified in paragraph 5.5.1 of these guidelines are relevant only for the purposes of subsections 19-87(1), 19-90(1) and 19-95(1) of the Act and paragraph 5.10.1 of these guidelines.

5.10  DATE BY WHICH, AND MANNER IN WHICH, A HIGHER EDUCATION PROVIDER MUST PUBLISH THE SCHEDULE OF STUDENT CONTRIBUTION AMOUNTS FOR PLACES AND TUITION FEES FOR A PARTICULAR PERIOD

5.10.1  In accordance with paragraph 19-95(2)(b), a higher education provider must publish a schedule of student contribution amounts for places and tuition fees on the higher education provider’s website on or before the earliest enrolment date for the unit of study as determined by the higher education provider.

5.15 MATTERS TO WHICH A PROVIDER MUST NOT HAVE REGARD WHEN DETERMINING MORE THAN ONE STUDENT CONTRIBUTION AMOUNT OR TUITION FEE

5.15.1 When determining a student contribution amount under subsection 19-87(2) or a tuition fee under subsection 19-90(2) of the Act for a unit, a higher education provider must not have regard to any matter related to the manner or timing of:

(a) any student’s payment of the student contribution amount or tuition fee to the provider; or

(b) the Commonwealth’s payment to the provider:

(i) of any amount lent to any student in discharge of the student’s liability to pay the student contribution amount or tuition fee; or

(ii) of any HECS-HELP discount for the unit.

5.25  VARYING A STUDENT CONTRIBUTION AMOUNT OR TUITION FEE

5.25.1  For the purposes of paragraph 19-87(3)(a) and paragraph 19-90(4)(a) of the Act, a higher education provider may only vary a published student contribution amount or tuition fee if the variation occurs prior to the published census date for the unit of study, and:

(a) the variation does not disadvantage a student enrolled, or a person seeking to enrol; and

(b) the variation is necessary to correct the published student contribution amount or tuition fee due to administrative error or circumstances that did not apply at the time the student contribution amount or tuition fee was determined.

5.25.5  Without limiting the generality of paragraph 5.25.1(a) of these Guidelines, a student will be disadvantaged by a variation that increases the student contribution amount or tuition fee.

5.25.10 In relation to replacement schedules under subsection 19-95(3) to the Act, the method by which a higher education provider must withdraw the previous schedule, inform the Minister of the variation and give the Minister a replacement schedule incorporating the variation is by publishing the replacement schedule on the higher education provider’s website as soon as practicable after making that decision.

5.30 DATE BY WHICH STUDENT COHORT INFORMATION MUST BE PUBLISHED

5.30.1 For any saved determination that has not been revoked under item 13(4) or item 14(4) of Schedule 3 of the Budget and Other Measures Act, sufficient information to enable a person in a student cohort to work out his or her student contribution amount and tuition fee for each unit of study that the provider provides or is to provide as part of the cohort’s course of study, and any conditions that are to apply in relation to the student contribution amount or tuition fee for each unit of study for each cohort, must be published and made publicly available by 1 October in the year immediately preceding the year in which the student cohort commences its course of study.

5.35 DATE BEFORE WHICH A SAVED DETERMINATION MAY BE REVOKED
 

5.35.1 A higher education provider may revoke a saved determination only if the provider has advised the Department, in writing, of its intention to revoke the saved determination and may only do so before the earlier of:

(a) two months before the date of commencement of the next unit of study to which the saved determination would otherwise apply (the “next unit”); and                           

(b) two months before the latest date on which a student can enrol in the next unit without incurring a late enrolment fee for the unit.

5.40  THE FORM IN WHICH A HIGHER EDUCATION PROVIDER MUST GIVE THE MINISTER A SCHEDULE OF STUDENT CONTRBUTION AMOUNTS FOR PLACES AND TUITION FEES

5.40.1  For the purposes of paragraph 19-95(1)(a) and paragraph 19-95(1)(b) to the Act, a higher education provider gives the Minister a schedule of student contribution amounts for places and tuition fees by publishing the schedule on the higher education provider’s website.

CHAPTER 6 FEES IN RESPECT OF OVERSEAS STUDENTS

6.1  PURPOSE

6.1.1 The purpose of this chapter is to detail the requirements for fees in respect of overseas students which are the fees referred to in paragraph 19-102(3)(d) of the Act. 

6.5  REQUIREMENTS

6.5.1 Subject to paragraph 6.10 of these guidelines when determining the fee for an overseas student, a higher education provider must meet the following requirements in respect of all overseas students other than those students excluded under paragraph 6.10.1:

(a) a higher education provider must charge as a minimum, a fee sufficient to recover the full cost of providing a course to an overseas student. Without limiting the meaning of full cost, it includes:

(i) full operating costs, including equipment costs. Account should be taken not only of directly associated staff costs, but also all overheads (including but not limited to, utilities, rent and marketing costs) and common services costs (including but not limited to, libraries and the provision of services required under the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students and the Education Services for Overseas Students Act 2000); and 

(ii) full capital costs. For fee calculation purposes, the current average cost per place of providing capital facilities for the course in question should be determined by the higher education provider. A capital component of the fee will not need to be taken into account where the necessary capital facilities are provided by a third party.

(b) The fee must be no less than those shown for the relevant category of courses in the schedule of minimum indicative course fees, which forms part of these guidelines, except where:

(i) a course is provided wholly off-shore and students will not at any stage enter Australia for study; or

(ii) approval has been given by the Department to charge less than the minimum indicative fee for a course.

(c) Where the requirements of subparagraph 6.5.1(b)(i) or subparagraph 6.5(b)(ii) are satisfied in relation to a course no minimum indicative fee will apply. However the higher education provider must be able to demonstrate to the Department that the fee proposed will recover at least the full cost of providing the course in accordance with paragraph 6.5.1(a).

(d) For the purposes of paragraph 6.5.1(b), the minimum indicative course fee for the relevant category of course is:

(i) where, in accordance with subparagraph 6.5.1(a)(ii), the capital component of the fee is not taken into account because the necessary capital facilities are provided by a third party, the amount in the column headed Total without capital component; or

(ii) in all other circumstances, the amount in the column headed Total with capital component.

6.10  CIRCUMSTANCES IN WHICH THE REQUIREMENTS FOR DETERMINING FEES FOR OVERSEAS STUDENTS MAY NOT APPLY

6.10.1 A higher education provider is not required to comply with the requirements of paragraph 6.5.1 when determining the fee for the following classes of overseas students:

(a) overseas students undertaking study in Australia as part of a formal exchange program; and

(b) overseas students undertaking study in Australia towards a research Masters degree or a research Doctoral degree who have been awarded a scholarship for that study on the basis of merit following a competitive application process.

6.10.5 For the purposes of paragraph 6.10.1(a), a formal exchange program is a program established under a formal agreement between an Australian higher education provider and an overseas higher education institution [“overseas institution”] that provides for:

(a) students of the Australian higher education provider to undertake study at the overseas institution, where the study at the overseas institution contributes to the requirements of a course of study being undertaken by the students with the Australian higher education provider;

(b) students of the overseas institution to undertake study at the Australian higher education provider , where the study at the Australian higher education provider contributes to the requirements of a course of study being undertaken by the students with the overseas institution;

(c) the exchange of students between the Australian higher education provider and the overseas institution to be reciprocal over time;

(d) all students of the Australian higher education provider undertaking study in accordance with paragraph 6.10.5(a) are charged student contribution amounts and tuition fees in accordance with the Act and are not charged fees at the overseas institution; and

(e) all students of the overseas institution undertaking study in accordance with paragraph 6.10.5(b) are charged fees in accordance with the practices of that overseas institution and are not charged fees at the Australian higher education provider.

6.15  MINIMUM INDICATIVE COURSE FEES

6.15.1 The schedule of minimum indicative course fees for 2012 is as follows:

6.15.5  Amounts in paragraph 6.15.1 will be indexed each year after 2012 in accordance with the method of indexation set out in Division 198 of Part 5-6 of Chapter 5 of the Act.

CHAPTER 7 FEES FOR GOODS AND SERVICES INCIDENTAL TO STUDIES

7.1  PURPOSE

7.1.1 The purpose of this chapter is to specify the criteria for determining whether a fee is of a kind referred to in paragraph 19-102(3)(f) of the Act. 

7.5  FEE OF A KIND THAT IS INCIDENTAL TO STUDIES THAT MAY BE UNDERTAKEN WITH A HIGHER EDUCATION PROVIDER

7.5.1 Provided that its payment is in accordance with the Act, a fee is of a kind that is incidental to studies that may be undertaken with a higher education provider if it falls into any one or more of the following categories:

(a) It is a charge for a good or service that is not essential to the course of study.

(b) It is a charge for an alternative form, or alternative forms, of access to a good or service that is an essential component of the course of study but is otherwise made readily available at no additional fee by the higher education provider.

(c) It is a charge for an essential good or service that the student has the choice of acquiring from a supplier other than the higher education provider and is for:

(i) equipment or items which become the physical property of the student and are not consumed during the course of study; or

(ii) food, transport and accommodation costs associated with the provision of field trips that form part of the course of study.

(d) It is a fine or a penalty, provided it is imposed by the higher education provider principally as a disincentive and not in order to raise revenue or cover administrative costs. 

CHAPTER 8  QUALITY, ACCOUNTABILITY AND OTHER ADMINISTRATIVE REQUIREMENTS IN RELATION TO CERTAIN HIGHER EDUCATION PROVIDERS

8.1  Purpose

 8.1.1 The purpose of this chapter is to set out additional quality, accountability and other administrative requirements that apply to higher education providers approved under section 16‑25 of the Act.

8.2  Financial statements

 8.2.1 This section is made for the purposes of paragraph 19‑10(2)(ab) of the Act.

 8.2.5 If the higher education provider had total revenue of $10 million or more for the previous annual financial reporting period, the financial statement for the annual financial reporting period must:

 (a) be a general purpose financial statement that complies with the applicable accounting standards; and

 (b) be prepared by a qualified accountant in accordance with the applicable accounting standards; and

 (c) include a declaration by the qualified accountant that the provider has, as at the date of the declaration, complied with all statutory obligations relating to the payment of:

 (i) Commonwealth, State and Territory taxes; and

 (ii) the superannuation guarantee charge in relation to employees of the provider.

 8.2.10 If the higher education provider had total revenue of less than $10 million for the previous annual financial reporting period, the financial statement for the annual financial reporting period must be a special purpose financial statement that complies with the following accounting standards:

 (a) AASB 101, Presentation of Financial Statements;

 (b) AASB 107, Statement of Cash Flows;

 (c) AASB 108, Accounting Policies, Changes in Accounting Estimates and Errors;

 (d) AASB 1048, Interpretation of Standards;

 (e) AASB 1054, Australian Additional Disclosures.

 8.2.15 If the higher education provider is part of a consolidated entity, the financial statement for the annual financial reporting period must be accompanied by:

 (a) a copy of the most recent consolidated financial statements for the entity prepared in accordance with applicable accounting standards; and

 (b) such additional information related to the consolidated entity as is determined, in writing, by the Minister.

 8.2.20 In this section:

consolidated entity has the same meaning as in the Corporations Act 2001.

general purpose financial statement has the meaning given by the accounting standards.

qualified accountant has the same meaning as in the Corporations Act 2001.

special purpose financial statement means a financial statement that is not a general purpose financial statement.

8.3  Financial viability

 8.3.1 For the purposes of paragraph 19‑12(b) of the Act, the Minister must have regard to the following matters when determining whether a higher education provider is financially viable, and likely to remain so:

 (a) the provider generates sufficient income to meet operating payments, debt commitments and, where applicable, to allow growth while delivering quality higher education;

 (b) the provider’s total assets exceed the provider’s total liabilities (the provider has a positive equity position), and there is no evidence to suggest that this might change;

 (c) if the provider is not a charitable or not‑for‑profit organisation registered with the Australian Charities and Not‑for‑profits Commission, and has been operating for 3 years or more—the provider has operated at a profit for at least 2 of the 3 most recent financial years for the provider;

 (d) if the provider has at least 100 enrolments in courses of study that lead to higher education awards—at least 20% of the provider’s revenue for the previous financial year came from sources other than payments that gave rise to FEE‑HELP debts;

 (e) the provider has a net positive cash position from operating activities (determined in accordance with the accounting standards);

 (f) the provider is not providing guarantees or loans that could have a material effect on the provider’s finances;

 (g) the provider is not providing its assets as security other than under a commercial loan arrangement with an authorised deposit‑taking institution (within the meaning of the Banking Act 1959).

8.4  Offering certain inducements

 8.4.1 The following benefits are specified for the purposes of subsection 19‑36A(2) of the Act:

 (a) the content and quality of the unit of study;

 (b) the amount of the tuition fees for the unit of study;

 (c) the availability of FEE‑HELP assistance for the unit of study;

 (d) marketing merchandise up to the total value of $30 per person;

 (e) the offering of money in the form of scholarships or bursaries.

8.5  Use of third party contact lists

 8.5.1 This section is made for the purposes of subsection 19‑36C(3) of the Act.

 8.5.5 Subsection 19‑36C(2) of the Act does not apply if the student has given express consent to being contacted by the higher education provider.

 8.5.10 However, subject to section 8.5.15, a student cannot be taken to have provided express consent unless:

 (a) information in the request for consent was presented clearly, and set out the specific purpose for which the student’s personal information would be used if consent were given; and

 (b) the request was prominent; and

 (c) the student was able to give consent in a separate optional tick box from other consents; and

 (d) the request was not a required field to be answered in order for a person to submit other information; and

 (e) the request did not include a default tick for consent; and

 (f) the request named the provider; and

 (g) the request detailed any referral fee or other fee that would be paid to the person who made the request and any other benefit that would be provided to the person who made the request.

 8.5.15 The student is taken to have provided express consent if the student initiates contact with a third party for the purpose of:

 (a) giving information relating to education and training to the provider; or

 (b) obtaining information relating to higher education from the provider.

8.6  Keeping records

 8.6.1 This section is made for the purposes of section 19‑72 of the Act.

 8.6.5 A higher education provider must keep records relating to:

 (a) how the provider assessed a student as academically suited to undertake a unit of study before enrolling the student in the unit of study being undertaken as part of a course of study; and

 (b) if the provider is satisfied that special circumstances apply to a student for the purposes of section 104‑1A of the Act—the grounds on which the provider is so satisfied.

Note 1: The requirement to undertake the assessment mentioned in paragraph (a) is imposed under section 19‑42 of the Act.

Note 2: For when special circumstances apply to a person, see section 104‑30 of the Act.

 8.6.10 The records must be kept in a manner so that they can be readily provided upon request to the student concerned, the Minister or the Secretary.

 8.6.15 A record required to be kept by a provider under this section must be kept by the provider for the period of 7 years, starting from when the record was made by the provider.

8.7  Publishing information

 8.7.1 This section is made for the purposes of section 19‑73 of the Act.

 8.7.5 A higher education provider must publish the following information in relation to each unit of study offered by the provider:

 (a) the mode of delivery of the unit of study;

 (b) whether the unit of study will be delivered by the provider or by a third party;

 (c) whether FEE‑HELP assistance is available for the unit of study;

 (d) whether there are any limits or conditions on the FEE‑HELP assistance available for the unit of study imposed on the provider’s approval as a higher education provider.

 8.7.10 The information must be published by the provider prominently on its website, and in a manner that is easily accessible without provision of login or contact information.

 8.7.15 The information must:

 (a) be published before the earliest day for enrolment in the unit of study; and

 (b) must remain published at least until the end of the period in which the unit can be undertaken.

8.8  Withdrawal from units of study

 8.8.1 This section is made for the purposes of section 169‑17 of the Act.

 8.8.5 A higher education provider must have processes and procedures that include:

 (a) procedures for a student to withdraw from a unit of study or a course of study; and

 (b) a procedure for a student to enrol in a unit of study that was part of a course of study with the provider in circumstances where the student had earlier withdrawn from a unit of study of that course undertaken with the provider.

 8.8.10 The procedures for a student to withdraw from a unit of study or a course of study, before a census date for the unit or course, must not involve financial, administrative or other barriers to the withdrawal.

 8.8.15 If a student withdraws from a unit of study or a course of study, the provider must not, after the withdrawal, enrol the student in a unit of study or course of study without the written permission of the student (which must be given after the withdrawal).

CHAPTER 9 DETERMINING WHETHER STUDENTS ARE GENUINE STUDENTS

9.1  Purpose

 9.1.1 The purpose of this chapter is to specify matters to be taken into account in determining whether students undertaking units of study provided by higher education providers approved under section 16‑25 of the Act are genuine students.

9.2  Genuine student

 9.2.1 For the purposes of subsection 104‑1(1A) of the Act, in determining whether a student is a genuine student in relation to a unit of study being undertaken as part of a course of study, regard may be had to the following matters:

 (a) whether the student is reasonably engaged in the course;

 (b) whether the student has been provided with information about the requirements for the course, and the cost and duration of the course;

 (c) whether the student has satisfied course requirements for the course or participated in assessment activities for the course;

 (d) if the course is an online course—the number of occasions on which the student has logged in to the course is not insignificant;

 (e) whether the student has provided up‑to‑date contact details that enable the Department to contact the student to verify the student’s enrolment in the course;

 (f) if the student is enrolled in another course—the number of the enrolments and associated course loads would not make successful completion of a course by the student impossible or highly improbable.

Note to the Higher Education Provider Guidelines 2012

Note 1

The Higher Education Provider Guidelines 2012 in force under section 238-10 of the Higher Education Support Act 2003 as shown in this compilation is amended as indicated in the Tables below.

Table of Instruments

Table of Amendments