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2002-2003-2004
THE PARLIAMENT OF
THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
HIGHER EDUCATION LEGISLATION
AMENDMENT BILL 2004
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Education, Science and Training the Hon Dr
Brendan Nelson MP)
HIGHER EDUCATION LEGISLATION
AMENDMENT BILL 2004
This Bill will amend the Higher Education Funding Act 1988 (HEFA)
to:
• Set a new maximum aggregate funding level in section 17 of
HEFA for the year 2004 to reflect minor adjustments including additional funds
for over enrolments and a minor reduction for Regional
Loading.
• Set new maximum aggregate funding amounts for certain
grants in section 23C of HEFA for the year 2004 to reflect an increase in funds
for the Regional Protection Fund, funding for the enrichment of indigenous
education between Batchelor Institute of Indigenous Tertiary Education and
Charles Darwin University and other minor funding variations.
The Bill
will amend the Higher Education Support Act 2003 to:
• Allow
higher education providers to set different student contribution amounts and
tuition fees to be paid by students who are to commence a particular course of
study in a particular year (ss 19-86, 19-87, and 19-90);
• Amend
provisions relating to:
o the
remission of HECS-HELP debts for persons undertaking Work Experience in Industry
(ss 36-22, 79-5, 137-5, and
206-1);
o the definition of
equivalent full time student load (s.73-10);
and
o the notification of tax file
numbers by students (s.187-5).
• Set new maximum aggregate funding
levels for the Commonwealth Grant Scheme under section 30-5 to
reflect:
o a technical
adjustment to transfer funding for the Institute of Advanced Studies from this
section to Other Grants under section 41-15. Funding to national institutes is
provided from the Other Grants section and funding to the Institute was
previously included with funding to the Australian National
University;
o a separate adjustment
to reinstate the HECS and research components of Workplace Reform Fund for the
years 2005-07; and
o a minor
reduction for Regional Loading funding.
• Set new maximum
aggregate funding levels for Other Grants under section 41-15 to
reflect:
o a technical
adjustment to allow the transfer of funding for the Institute of Advanced
Studies as described
above;
o funding for the enrichment
of indigenous education between Batchelor Institute of Indigenous Tertiary
Education and Charles Darwin University;
and
o other minor funding variations
for 2005-2007.
The Bill will also amend the Higher Education
Support (Transitional Provisions and Consequential Amendments) Act 2003
to:
• Simplify the transitional
arrangements which relate to Commonwealth supported students at the University
of Notre Dame Australia. Following this amendment, transitional arrangements
will be managed through the Commonwealth Grant Scheme Guidelines (Part 4 of
Schedule 1); and
• Add a transitional provision to provide the
Minister with a discretion to approve funding increases under the Commonwealth
Grants Scheme in the first year (2005) of implementation, where a higher
education provider (HEP) has met some, but not all, of the requirements of the
National Governance Protocols by the specified date in 2004 and the Minister is
satisfied that the HEP has taken all reasonable steps within its power to meet
the requirements of the Protocols and has met the workplace relations
requirements (item 21A of Schedule 1).
In relation to the Higher Education Funding Act 1988,
the Bill:
− increases the overall appropriation by $11.047 million
in 2004.
In relation to the Higher Education Support Act 2003 and
the Higher Education Support (Transitional Provisions and Consequential
Amendments) Act 2003, the Bill:
− increases the overall
appropriation by $157.980 million for the period 1 January 2005 to 31 December
2007.
HIGHER EDUCATION LEGISLATION AMENDMENT BILL
2004
Clause 1 - Short title
Provides for the Act to be cited
as the Higher Education Legislation Amendment Act
2004.
Clause 2 - Commencement
Provides for the Act
to commence on the day on which it receives the Royal
Assent.
Clause 3 - Schedule(s)
Provides that each Act
that is specified in a Schedule is amended or repealed as set out in the
applicable items in the Schedule and that any other item in a Schedule has
effect according to its terms.
Schedule 1 –
Higher Education Funding
Higher Education Funding Act
1988
Item 1
Section 17 sets the maximum aggregate
funding levels for operating grants that may be paid to institutions under
sections 15 and 16. Item 1 amends section 17 to vary the maximum
aggregate funding level for 2004 to reflect a revised estimate for
overenrolments and a small downward adjustment for Regional Loading.
Item 2
Subsection 23C(2) of the Act limits the total funds
available for grants that may be approved under sections 21, 21B, 22, 23, 23A
and 23B of the Act for specified years. Item 2 amends subsection 23C(2)
to vary the funding limit for 2004 to reflect an increase in funding for the
Regional Protection Fund, funding for the enrichment of indigenous education
between Batchelor Institute of Indigenous Tertiary Education and Charles Darwin
University and other minor funding variations.
Higher Education Support Act 2003
Item
3
Amends paragraphs 30-5(1)(a), (b) and (c) to vary the level of
maximum grants under the Commonwealth Grant Scheme (Part 2-2) for the years
2005-2007 to reflect a transfer of funding for the Institute of Advanced Studies
from the Commonwealth Grant Scheme to Other Grants (Part 2-3); an increase to
the appropriation to make it consistent with the forward estimates adjusted to
account for the inclusion of all elements of Workplace Reform Funding and a
minor reduction for Regional Loading funding.
Item
4
Amends the table in subsection 41-5(1) to vary the maximum payments
for Other Grants under Part 2-3 for the years 2005-2007 to reflect the transfer
of funding for the Institute of Advanced Studies as described for item 2;
funding for the enrichment of indigenous education between Batchelor Institute
of Indigenous Tertiary Education and Charles Darwin University for 2005 and
other minor funding variations for 2005-2007.
Schedule 2 – Units wholly consisting of work
experience in industry
Higher Education Support Act 2003
Item 1
Inserts a new section 36-22 to make provision for higher education providers
to repay amounts for units wholly consisting of work experience in industry in
special circumstances.
Proposed subsection 36-22(1) provides that section
36-22 applies to a person if:
• the person has been enrolled in a unit
of study as part of a course of study with a higher education provider as a
Commonwealth supported student; and
• the unit wholly consists of work
experience in industry; and
• 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
• the provider is satisfied that
special circumstances apply to the person; and
• the person applies in
writing to the provider for either or both the repayment of any amounts that the
person paid in relation to his/her student contribution amount for the unit or
the remission of the person’s HECS-HELP debt in relation to the unit;
and
• either the application is made before the end of the application
period under subsection 36-22(5) or (6); or 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.
Proposed subsection 36-22(2) provides that the provider
must pay to the person an amount equal to the payment (or the sum of the
payments) that the person made in relation to his/her student contribution
amount for the unit and pay to the Commonwealth an amount equal to any
HECS-HELP assistance to which the person was entitled for the
unit.
Proposed subsection 36-22(3) provides that, for the purposes of
paragraph 36-22(1)(d), special circumstances apply to the person if and only if
the higher education provider receiving the application is satisfied that
circumstances apply to the person that are beyond the person’s control,
do not make their full impact on the person until on or after the census date
for the unit and 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.
Proposed subsection 36-22(4) provides
that if the Student Learning Entitlement Guidelines specify circumstances in
which a higher education provider will be satisfied of a matter referred to in
paragraph 79-5(1)(a), (b) or (c), any decision of a higher education provider
under subsection 36-22(3) must be in accordance with any such
guidelines.
Proposed subsection 36-22(5) provides that if the person
applying under paragraph 36-22(1)(e) has withdrawn his/her enrolment in the unit
and the higher education provider gives notice to the person that the
withdrawal has taken effect, then 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.
Proposed subsection 36-22(6) provides that if
subsection 36-22(5) does not apply, the application period is the period of 12
months after the end of the period during which the person undertook (or was to
undertake) the unit.
Proposed subsection 36-22(7) provides that if the
application is made before the end of the application period under subsection
36-22(5) or (6) or 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, then 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.
Proposed subsection 36-22(8) has the effect of providing
that notices under section 36-22 must include a statement of the reasons for the
decision.
Items 2 and 4
Amend the note subsection 79-5(2) and insert a new table item 1A in the table of reviewable decisions in section 206-1 to reflect the insertion of new section 36-22 by item 1.
Item 3
Inserts a new subsection 137-5(5) to reflect the insertion of section 36-22 by item 1.
Schedule 3 - Student cohorts
Higher Education Support Act 2003
Items 1, 4, 5, 8 to
14, 16, 19 and 20
Amend subparagraph 16-30(1)(b)(ii), subsection
19-95(1), paragraph 19-95(2)(a), subsection 33-25(2), paragraph 36-20(a),
subsection 36-40(2), sections 36-45 and 36-50, subsection 36-55(2), subparagraph
90-1(f)(ii) and paragraph 93-1(a) to reflect the insertion of sections 19-87 and
19-88 by item 2 and the repeal and substitution of section 19-90 and the
insertion of section 19-91 by item 3.
Item 2
Inserts
new sections 19-87 and 19-88 dealing with the determination of all student
contribution amounts for places in units and the determination of student
contribution amounts for places in units for student cohorts, as part of the
contribution and fee requirements for higher education
providers.
Proposed subsection 19-87(1) provides that section 19-87
applies to a unit of study that a higher education provider provides or proposes
to provide during a year and that may form part of a course of study in which
the provider may enrol students as Commonwealth supported
students.
Proposed subsection 19-87(2) provides that the provider must
determine a student contribution amount for a place in the unit that is to apply
to all students who may enrol in the unit during the year.
Proposed
subsection 19-88(1) provides that section 19-88 applies to a unit of study that
a higher education provider provides or proposes to provide as part of a student
cohort’s course of study and in which the provider may enrol students as
Commonwealth supported students.
Proposed subsection 19-88(2) provides
that, in addition to the amount determined under section 19-87, the provider may
determine a student contribution amount for a place in the unit that is only to
apply to students in that student cohort who may enrol in the unit as part of
the cohort’s course of study. However, the provider must determine the
amount in the year before the cohort commences its course of
study.
Proposed subsection 19-88(3) provides that the provider may only
determine one amount for the unit to apply to students in that student
cohort.
Proposed subsection 19-88(4) provides that the provider may also
determine conditions for that student cohort that are to apply in relation to
the student contribution amount for a place in the unit.
Item
3
Repeals section 19-90 and inserts new sections 19-90 and 19-91
dealing with the determination of tuition fees for all students and the
determination of tuition fees for students in student cohorts, as part of the
contribution and fee requirements for higher education
providers.
Proposed subsection 19-90(1) provides that section 19-90
applies to a unit of study that a higher education provider provides or proposes
to provide during a year.
Proposed subsection 19-90(2) provides that the
provider must determine a fee for the unit that is to apply to all students who
may enrol in the unit during the year.
Proposed subsection 19-90(3)
provides that if the unit can form part of more than one course of study, the
provider may determine under subsection 19-90(2) a different fee for the unit
for each such course to apply to students who may enrol in the unit as part of
that course.
Proposed subsection 19-91(1) provides that section 19-91
applies to a unit of study that a higher education provider provides or proposes
to provide as part of a student cohort’s course of study.
Proposed
subsection 19-91(2) provides that, in addition to the amount determined under
section 19-90, the provider may determine a fee for the unit that is only to
apply to students in that student cohort who may enrol in the unit as part of
the cohort’s course of study. However, the provider must determine the
fee in the year before the cohort commences its course of study.
Proposed
subsection 19-91(3) provides that the provider may only determine one fee for
the unit to apply to students in that student cohort.
Proposed subsection
19-91(4) provides that the provider may also determine conditions for that
student cohort that are to apply in relation to the fee for the
unit.
Item 6
Inserts new section 19-97 dealing with
information on student contribution amounts for places and tuition fees for
student cohorts.
Proposed subsection 19-97(1) provides that if the
provider has determined (under section 19-88 or 19-91) student contribution
amounts for places in units, or tuition fees, to apply to students in student
cohorts, the provider must publish, and make publicly available sufficient
information to enable a person in a student cohort to work out his/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 amount or fee for each unit of
study for each student cohort.
Proposed subsection 19-97(2) provides that
the information mentioned in subsection 19-97(1) for a particular unit must be
published and made publicly available by the date specified in the Higher
Education Provider Guidelines in the year preceding the year in which the
student cohort commences its course of study.
Item
7
Repeals sections 19-100 and 19-105 and substitutes new sections
19-100, 19-101, 19-102 and 19-105 dealing with the limits on fees for courses of
study and defining the meaning of the terms student cohort,
fee and tuition fee.
Proposed section 19-100
provides that 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 by the person as part of the
course.
Proposed section 19-101 defines the meaning of a student
cohort, in relation to a particular course of study of which a unit of
study forms a part, as the group of all of the students who commence the course
in a particular year with a particular higher education
provider.
Proposed section 19-102 defines the meaning of
fee.
Proposed subsection 19-102(1) provides that 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.
Proposed subsection 19-102(2) provides that a fee may also
include any fee payable to the provider in respect of the granting of a higher
education award.
Proposed subsection 19-102(3) provides that a fee does
not include a fee that is:
• payable in respect of an organisation of
students or of students and other persons; or
• payable in respect of
the provision to students of amenities or services that are not of an academic
nature; or
• payable in respect of residential accommodation;
or
• imposed in accordance with the Commonwealth Grant Scheme
Guidelines for the imposition of fees in respect of overseas students;
or
• 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
• determined, in accordance with guidelines issued
by the Minister, to be a fee of a kind that is incidental to studies that may be
undertaken with a higher education provider and meets the criteria specified in
the Commonwealth Grant Scheme Guidelines; or
• a student contribution
amount payable in respect of a student.
Proposed subsection 19-102(4)
provides that the definition of fee in section 102 does not apply for the
purposes of sections 104-50 and 225-25.
Proposed section 19-105 defines a
person’s tuition fee for a unit of study as the fee
determined under section 19-91 for the student cohort if all of the following
apply:
• the unit forms part of a course of study with a higher
education provider;
• the person commenced that course of study in a
particular student cohort;
• the provider has determined, under section
19-91, a fee for the unit that applies to students in that cohort;
and
• the person satisfies any conditions that apply to the cohort
under section 19-91 in relation to the fee for the unit.
If all of these
conditions do not apply and a different fee for the unit has been determined for
each course of study in accordance with subsection 19-90(3), a person’s
tuition fee is the fee determined for the unit for the
person’s course of study and, in all other cases, it is the fee determined
under subsection 19-90(2).
Item 15
Repeals subsection
36-55(1) dealing with tuition fees for units of study and substitutes a new
subsection which has the effect of providing that a higher education provider
must not determine a tuition fee for a unit of study that is less than the
highest student contribution amount that the provider would charge a person who
is a Commonwealth supported student in relation to the unit or, if a higher
amount is specified in the Tuition Fee Guidelines, that higher
amount.
Item 17
Amends subsection 36-55(3) to have the
effect of providing that if a person is enrolled in study with a higher
education provider on a non-award basis and could have enrolled in that study as
a unit of study if the enrolment were not on a non-award basis, then the
provider must not charge, as the person’s fees for the study, amounts that
in total are less than the amount that would be the person’s student
contribution amount if the person had enrolled in the study as a unit of study
and the person were a Commonwealth supported student in relation to the
unit.
Item 18
Repeals section 87-1 and replaces it with
a new section explaining what Part 3-2 of Chapter 3 dealing with HECS-HELP
assistance is about.
Item 21
Section 93-5 deals with
student contribution amounts in relation to HECS-HELP assistance. Item 21
repeals subsection 93-5(1) and inserts a new subsection which provides that a
person’s student contribution amount for a unit of study is the amount
worked out as follows:
where the person’s student contribution amount for a place in the unit is:
(a) if all of the following apply:
• the unit forms part of a course of study with a higher education provider;
• the person commenced that course of study in a particular student cohort;
• the provider has determined, in accordance with section 19-88, a student contribution amount for a place in the unit that applies to students in that cohort; and
• the person satisfies any conditions that apply to the cohort under section 19-88 in relation to the student contribution amount for a place in the unit;
the amount determined under section 19-88 for the cohort; and
(b) in all other cases—the student contribution amount for a place in
the unit determined under subsection 19-87(2).
Item
22
Repeals subsection 93-5(2) and inserts a new subsection which
provides that a person’s student contribution amount for a place in the
unit must not exceed the maximum student contribution amount for a place in the
unit, to reflect the changes made by item 21.
Item
23
Amends subsection 93-5(3) to have the effect of providing that a
person’s student contribution amount for a unit of study is nil if the
person undertakes the unit as part of an enabling course. Subsection 93-5(3)
has effect despite subsection 93-5(1) [see item 21].
Items 24 to
27
Amend section 93-10 to reflect the insertion of sections 19-87 and
19-88 by item 2, the repeal and substitution of section 19-90 and the insertion
of section 19-91 by item 3 and the amendments to section 93-5 made by items 21
to 23.
Item 28
Repeals subsection 93-15(1) and
substitutes a new subsection which provides that an up-front
payment, in relation to a unit of study for which a person is liable to
pay his/her student contribution amount, is a payment of part of the
student’s student contribution amount for the unit, other than a payment
of HECS-HELP assistance under Part 3-2 of Chapter 3.
Item
29
Repeals subsection 93-15(3) and inserts a new subsection which
provides that a payment made in respect of a person is not an up-front payment
to the extent that the payment (or if other up-front payments have already been
made in respect of the person in relation to the unit, the sum of the payment
and all of those other up-front payments) exceeds 80% of the person’s
student contribution amount for the unit.
Items 30 to
38
Amend paragraphs 96-1(b), 96-5(1)(c) and 96-5(2)(b), subsection
96-5(3), paragraph 96-10(c) and section 96-10 to reflect the insertion of
sections 19-87 and 19-88 by item 2, the repeal and substitution of section 19-90
and the insertion of section 19-91 by item 3 and the amendments to section 93-5
made by items 21 to 23.
Item 39
Repeals section 101-1
and replaces it with a new section explaining what Part 3-3 of Chapter 3 dealing
with FEE-HELP assistance is about.
Items 40 to 44
Amend
paragraph 107-1(a), subsections 107-5(1) and 107-10(2) and paragraphs 110-1(b)
and 137-5(1)(b) to reflect the insertion of sections 19-87 and 19-88 by item 2,
the repeal and substitution of section 19-90 and the insertion of section 19-91
by item 3 and the amendments to section 93-5 made by items 21 to
23.
Item 45
Repeals subsection 137-5(3) and inserts a
new subsection which provides that a HECS-HELP debt is taken to have been
incurred by a person immediately after the census date for the unit, whether or
not the Commonwealth has made a payment in respect of the person’s student
contribution amount for the unit.
Item 46
Amends
paragraph 137-10(1)(b) to reflect the insertion of sections 19-87 and 19-88 by
item 2, the repeal and substitution of section 19-90 and the insertion of
section 19-91 by item 3 and the amendments to section 93-5 made by items 21 to
23.
Item 47
Repeals subsection 137-10(3) and
substitutes a new subsection which provides that a FEE-HELP debt is taken to
have been incurred by a person immediately after the census date for the unit,
whether or not the Commonwealth has made a payment in respect of the
person’s tuition fee for the unit.
Items 48 to
56
Amend paragraphs 169-15(1)(a) and (b), 169 15(2)(a) and (b),
subsections 169-15(3), 169-20(1) and (2), paragraph 193-1(5)(b) and section
198-5 to reflect the insertion of sections 19-87 and 19-88 by item 2, the repeal
and substitution of section 19-90 and the insertion of section 19-91 by item 3
and the amendments to section 93-5 made by items 21 to 23.
Items
57 to 62
Amend the dictionary of defined terms in Schedule 1 by
repealing the definitions of maximum student contribution amount per
place and student contribution amount for a place and
inserting new definitions of fee, maximum student
contribution amount per place, student cohort and
student contribution amount for a place to reflect the insertion
of sections 19-87 and 19-88 by item 2, the repeal and substitution of section
19-90 and the insertion of section 19-91 by item 3 and the amendments to section
93-5 made by items 21 to 23.
Higher Education Support
(Transitional Provisions and Consequential Amendments) Act
2003
Items 63 to 70
Amend paragraph 1(1)(k) and
item 3 of Schedule 1 to reflect the insertion of sections 19-87 and 19-88 in the
Higher Education Support Act 2003 by item 2, the repeal and substitution
of section 19-90 and the insertion of section 19-91 of the Higher Education
Support Act 2003 by item 3 and the amendments to section 93-5 of the
Higher Education Support Act 2003 made by items 21 to 23.
Schedule 4 – The University of Notre Dame
Australia
Higher Education Support (Transitional Provisions and Consequential
Amendments) Act 2003
Item 1
Repeals Part 4 of Schedule 1 to remove the unintended consequences of the
existing transitional provisions in relation to Commonwealth funded places at
the University of Notre Dame Australia for the period 2005-2008. This will
simplify the transitional arrangements relating to Commonwealth supported
students at the University of Notre Dame Australia which will be managed through
the Commonwealth Grant Scheme Guidelines.
Schedule 5 – Miscellaneous
amendments
Higher Education Support Act 2003
Item 1
Repeals subsection 73-10(1) and substitutes a new subsection to streamline
the definition of Equivalent Full Time Student Load
(EFTSL).
Item 2
Inserts a new section 187-5 dealing
with a student’s obligation to notify his/her higher education provider of
his/her tax file number when it is issued. If a student meets the tax file
number requirements under paragraph 187-1(1)(b), the student must notify his/her
tax file number to an appropriate officer of the higher education provider
within 21 days from the day on which the Commissioner issues the tax file number
to the student and the provider must be satisfied (in accordance with subsection
187-1(4)) that this number is a valid tax file number.
Higher
Education Support (Transitional Provisions and Consequential Amendments) Act
2003
Item 3
Corrects a drafting error in
subparagraph 1(1)(f)(ii) of Schedule 1.
Item 4
Amends
paragraph 6(i) of Schedule 1 to reflect the repeal of paragraph 6(j) by item
5.
Item 5
Repeals paragraph 6(j) of Schedule
1.
Item 6
Repeals the note to item 6 of Schedule 1 to
reflect the repeal of paragraph 6(j) by item 5.
Items 7 to
9
Correct drafting errors in item 11A of Schedule
1.
Item 10
Insert a new item 21A in Schedule 1 which
provides for increases in transitional assistance in 2005 for higher education
providers meeting certain requirements.
For the purposes of paragraph
33-15(1)(c) of the Higher Education Support Act 2003, the Minister is
taken to be satisfied that the provider met the requirements in paragraph
33-15(1)(a) of that Act (as at a date in 2004 specified in the Commonwealth
Grant Scheme Guidelines) if the grant year is the year 2005, the Minister is
satisfied that the provider met at least some of those requirements by the
specified date and the Minister is satisfied that the provider has taken all
reasonable steps to meet the requirements.