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Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009



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Parliament of Australia Department of Parliamentary Services

Parliamentary Library Information, analysis and advice for the Parliament BILLS DIGEST

www.aph.gov.au/library

16 October 2009, no. 39, 2009-10, ISSN 1328-8091

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Coral Dow Social Policy Section

Contents

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Voluntary Student Unionism (VSU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

VSU Transition Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Impact of Voluntary Student Unionism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Basis of policy commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Position of significant interest groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Key issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Should the fee be compulsory? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Is SA-HELP necessary? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Should higher education providers control the funds? . . . . . . . . . . . . . . . . . . . . . . . . 11

Will the fee be sufficient to restore essential student services and reinvigorate campus life? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Will the guidelines clearly define activities that providers cannot fund? . . . . . . . . . . 13 Will the fee be a financial burden on students? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Financial implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Main provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Schedule 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Concluding comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2 Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Date introduced: 9 September 2009

House: House of Representatives

Portfolio: Education

Commencement: The formal provisions commence on Royal Assent. Schedule 1 commences six months from the day of Royal Assent or earlier by Proclamation.

Links: The relevant links to the Bill, Explanatory Memorandum and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/ When Bills have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.

Purpose

The Bill amends the Higher Education Support Act 2003 (the Act) to:

• Allow higher education providers to charge students an annual capped compulsory student services and amenities fee from (‗on or after‘) 1 July 2009, and

• Introduce a new Higher Education Loan Program (HELP) category for student amenities fees called Services and Amenities-HELP (SA-HELP).

The Bill also amends the Income Tax Assessment Act 1936 to account for the new SA-HELP provisions.

Background

The issue of student services and amenities fees, also called student union fees, has been before Parliament on many occasions, most recently with the Higher Education Legislation Amendment (Student Services and Amenities, and other Measures) Bill 2009 (‗the old bill‘) which was defeated in the Senate in August.1 The ‗other measures‘ relating

1. Australia, Senate, Journals, no 82, 2009-2010. More detailed background on this issue can be found in K Jackson, Voluntary Student Unionism, Parliamentary Library Background Note, SP006, 30 November 2004 http://libiis1/Library_Services/BN/Education/sp006.doc. This link is for internal Parliamentary users only. However, some of this background material is also available in the Bills Digest at http://www.aph.gov.au/library/pubs/bd/2003-04/04bd058.htm See also P McDonald et al, VSU Impact Study: a Study on the Impact of

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009 3

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

to VET FEE-HELP in the old bill are now in a separate bill.2 The provisions in regard to student amenities fees are reintroduced unchanged in the Bill.

Voluntary Student Unionism (VSU)

Compulsory student union fees were abolished with the passage of the Howard Government‘s Higher Education Support Amendment (Abolition of Compulsory Upfront Student Union Fees) Bill 2005.3 The effect of the Higher Education Support Amendment (Abolition of Compulsory Upfront Student Union Fees) Act 2005, is that section 19-37 of the Higher Education Support Act (the Act) prevents a higher education provider requiring a student to be a member of a student association, union or guild and prevents a compulsory fee for facilities, amenities or services that are not of an academic nature. Compliance with VSU legislation is a condition of continued approval as a higher education provider and a condition of Commonwealth grants to providers.

VSU Transition Funding

To allay concerns of National Party Senators and Senator Fielding on the impact of VSU on regional campuses and on recreational and sporting activities, the Howard Government provided $100 million of transition funding to universities through three competitive funding programmes.4 The VSU Transition Fund for Recreational and Sporting Facilities, allocated $85 million for 44 projects,5 the Small Businesses on Regional Campuses Fund

Voluntary Student Unionism Legislation at Universities across Australia, Australian University Sport, Milton, Qld, 2008, Chapter 4 Background to the VSU Legislation, http://www.unigames.com.au/_uploads/res/1_1893.pdf viewed 13 October 2009.

2. Higher Education Support Amendment (VET FEE-HELP and Tertiary Admission Centres) Bill 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation %2Fbillhome%2Fr4194%22

3. It was the fourth attempt by the Howard Government to abolish compulsory student union fees: In 1996 the Howard Government introduced the Higher Education Funding Amendment Bill (No.2) 1996 to repeal provisions providing Commonwealth assistance to student organisations where State or Territory legislation had prevented the imposition of student organisation fees. The Bill did not proceed through the Senate. In 1999 the Higher Education Legislation Amendment Bill 1999 did not progress through the Senate. In September 2003, the Higher Education Support Amendment (Abolition of Compulsory Up-front Student Union Fees) Bill 2003 did not proceed beyond the second reading.

4. ‗PM steals victory on uni fees‘, The Australian, 10 December 2005, A Fraser, ‗Student unions bill goes through‘, Canberra Times, 10 December 2005, D Wroe, ‗PM has win on student unions‘, The Age, 10 December 2005.

5. For a list of the projects and funding committed see: http://www.dest.gov.au/sectors/higher_education/programmes_funding/VSUF.htm viewed 13 October 2009.

4 Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

allocated $5 million for 19 projects,6 and the Regional University Sport Programme is providing $10 million over four years to Australian University Sport (AUS).

However the Australasian Campus Union Managers‘ Association (ACUMA) and AUS concluded ‗the grants available from the VSU Transition Fund do not address the shortfalls in recurrent funding and provide only temporary respite from the pressing capital needs of the sector‘.7

Impact of Voluntary Student Unionism

In November 2007, after one year of VSU, AUS and ACUMA reported an annual reduction of $166 million in funding from amenities and services fees (they expected this to rise to $200 million in 2009), a loss of 1000 jobs (or a reduction in employment of 30 per cent), increased direct charges to students and user pays charges increasing in most cases above the Consumer Price Index (CPI).8

In February 2008, the Hon Kate Ellis MP, Minister for Youth, undertook consultations with and invited submissions from stakeholders on the impact of the current VSU policy. The Impact of Voluntary Student Unionism on Services, Amenities and Representation for Australian University Students - Summary Report concluded:

Most submissions concluded that the abolition of upfront compulsory student union fees had impacted negatively on the provision of amenities and services to university students, with the greatest impact at smaller and regional universities and campuses.

Many noted that the introduction of VSU had forced rationalisations, and that current levels of services were more limited than had previously been the case.

In many instances, assistance was provided by the university but these funds were redirected from other uses such as teaching, learning or research.

6. For a list of the projects and funding committed see: http://www.dest.gov.au/sectors/higher_education/programmes_funding/programme_categori es/small_business_regional_uni/default.htm

7. Australasian Campus Union Managers‘ Association (ACUMA) VSU impact study overview ACUMA website: http://www.acuma.org.au/resource_library/vsu/index.htm viewed 13 October 2009.

8. Peter McDonald et al, VSU Impact Study: a Study on the Impact of Voluntary Student Unionism Legislation at Universities across Australia, (First draft release) Australian University Sport, Milton Qld, November 2007, pp. 1-4, http://www.unisport.com.au/_uploads/res/1_1825.pdf viewed 13 October 2009, and Peter McDonald et al, VSU Impact Study: a Study on the Impact of Voluntary Student Unionism Legislation at Universities across Australia, (Second draft release) Australian University Sport, Milton Qld, February 2008, pp. 1-4, http://www.unigames.com.au/_uploads/res/1_1893.pdf viewed 13 October 2009.

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009 5

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

While a ‗user‐pays‘ model worked for some services (e.g. food and beverage outlets), it was reported that this type of delivery commonly resulted in increased costs to individual students.

Many submissions put forward the view that VSU had resulted in a lessening of the vibrancy, diversity and, to some extent, the attractiveness of university life.

VSU had commonly resulted in an increase in fees, which had led to a decrease in the number of clubs and/or in club membership.

While most submissions focussed on the negative effects of VSU on student services and amenities, some institutions did report some benefits. These included the streamlining and more efficient delivery of services to suit student needs, the opening up of the provision of services to a commercial model, and consultation with students to determine what could be defined as essential services.

Most submissions indicated that the capacity for student advocacy and democratic student representation had been significantly reduced since VSU.

Submissions reported that, at a number of universities, there was no longer a student union. In other instances, a number of student groups had been merged into one body.

Some institutions commented that there had been benefits from VSU in terms of student representation and, in particular, that representation was now from a broader base.9

Basis of policy commitment

The Australian Labor Party in opposition promised to restore campus amenities, services and student representation ‗free from Government dictates and interference‘. In the ALP‘s white paper on education, shadow spokesperson, Jenny Macklin, proposed that the provision and funding of services would be formulated through ‗compact negotiations between the university and Government‘, and that ‗the financial imposition on students will not increase.‘ Additionally as part of the compact negotiations ‗universities would need to demonstrate that an independent, democratic and securely funded student representative body exists‘.10

9. Impact of Voluntary Student Unionism on Services, Amenities and Representation for Australian University Students - Summary Report, DEEWR, Canberra, July 2008. http://www.dest.gov.au/NR/rdonlyres/0BC037DB-1F39-452D-8947-225E63A85DB1/22931/VSUSummaryReport_W2finalfromPublications3.pdf viewed 20 February 2009.

10. Australia’s universities: building our future in the world: a white paper on higher education, research and innovation, Australian Labor Party, Canberra, 2006, p. 74, http://parlinfo/parlInfo/download/library/partypol/1LBK6/upload_binary/1lbk65.pdf;fileTyp e=application%2Fpdf#search=%22amenities%20%20student%22 viewed 13 October 2009.

6 Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Following the ALP‘s National Conference in May 2007 the shadow spokesperson Stephen Smith outlined the party‘s policy:

I …made it clear at the National Conference, and this was acknowledged by a number of delegates, that it wasn‘t appropriate for Labor, and Labor would not be able to go back to the pre-Voluntary Student Unionism world and that was accepted by the Conference and accepted by delegates.

Labor‘s priority here is to do two things as outlined in the Platform: Firstly, to ensure that students, if they so choose, can voluntarily organise themselves into representative organisations. Secondly, and more importantly, that all students have access to decent amenities and services, whether that‘s sporting facilities, cultural facilities, child-care facilities and the like.

The funding of those services has been a matter of conversation between me and the Universities. I believe that the Commonwealth, the Government of the day, has a responsibility, together with the Universities, to fund those services and of course it‘s also appropriate for students, if they so choose, to make a voluntary contribution to those services, or indeed to be charged a fee if that is appropriate when they use those services such as sporting facilities, gyms and the like.

To a journalist‘s question Stephen Smith stated ‗I certainly do not have on my list an extension of HECS, either voluntary or compulsory, to fund these services. So I absolutely rule that out … I believe that these services should be provided either by the Universities, or by the Commonwealth or both‘.11

The Bill implements the general thrust of the policy to restore services and student representation without a return to the ‗pre-Voluntary Student Unionism world‘. However the compulsory fee, the proposed SA-HELP, the lack of government funding and the degree of government regulation and compliance are major diversions from the government‘s policy in opposition.

Following the government‘s consultation on the impact of VSU the Minister, the Hon Kate Ellis announced that

From 1 July 2009, universities will be allowed to set a compulsory fee, capped at a maximum of $250 with indexation each year, to help rebuild student amenities and student services … To help students manage the fee the Australian Government will provide access to a HECS style loan under the Higher Education Loan Program (HELP). SA - HELP will allow eligible students to defer the payment of the fee if they choose.

11. S Smith (Shadow Minister for Education and Training), Transcript of Doorstop, Subject: Voluntary Student Unionism; Mike Bailey, Government Extravagance, media release, Parliament House, Canberra, 22 May 2007, http://parlinfo/parlInfo/download/media/pressrel/EY4N6/upload_binary/ey4n61.pdf;fileTyp e=application/pdf#search=%222000s%20smith%20hecs%22 viewed 13 October 2009.

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009 7

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

The Minister ‗stressed that this was not a return to compulsory student unionism and the provision which prohibits a university from requiring a student to be a member of a student organisation will remain‘. The Minister also announced a new requirement for universities to ‗meet national benchmarks relating to access to student support services and fulfil new representation and advocacy protocols‘.12

The Bill is not proposing to reintroduce student union fees in that funds will be administered by higher education providers rather than student unions. Furthermore providers must not spend the collected funds to provide support to a political party or to support a candidate for political office.13 However the Bill is proposing that a capped student amenities fee can be charged by a higher education provider and made compulsory. Consequently the reaction to the Bill is framed within the context of previous debates on compulsory student union fees. These debates go back to the Whitlam Government‘s proposal that the Commonwealth assume full responsibility for financing higher education. Tuition fees were to be abolished, but student representative council, union and sports fees would remain the responsibility of the student, to be collected by the institution.14

Journalist Charles Richardson, a life member of the Australian Liberal Students‘ Federation, has argued ‗VSU arouses political passions out of all proportion to its intrinsic importance. It is also a peculiarly fossilised debate, since positions on both sides were set some 30 years ago when university funding arrangements, not to mention the ideological landscape in general, were very different.15 Political passions have again arisen in the debate on the old bill with the Coalition describing the proposed legislation as having ‗the

12. K Ellis (Minister for Youth), Rebuilding Student Support Services in our Universities, media release, Canberra, 3 November 2008, http://www.deewr.gov.au/Ministers/Ellis/Media/Releases/Pages/Article_081130_112847.as px viewed 13 October 2009.

13. In 2005 universities collected $172.8 Million from student amenities and services fees. 71 percent was distributed to student organisations, 14 per cent funded university run services and 15 per cent funded other bodies such as privately run student advocacy organisations. AVCC report on Higher Education Support Amendment (Abolition of Compulsory Up-front Student Fees) Bill 2005, AVCC, Canberra, June 2005, Table 6, http://www.universitiesaustralia.edu.au/documents/publications/policy/submissions/AVCC_ report_HESABill-2005.pdf viewed 13 October 2009.

14. Australian Government Digest, 5 December 1972-31 March 1973, p. 158.

15. C Richardson, ‗Government returns to the student union minefield‘, Crikey, 23 February 2009

http://www.crikey.com.au/Email/Preview/DailyEmailPreview.aspx?pid=f3c25373-ddff-404f-9565-213426414d1c#20ed102d-9724-4c8a-a055-999e63932221 viewed 13 October 2009.

8 Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

same stench as Compulsory Student Unionism‘.16 Debate on the old bill was similarly grounded in the ideological arguments of the previous thirty years. The coalition‘s opposition to the old bill was largely grounded in the belief that the proposed legislation was compulsory student unionism by another name. Senator Abetz described the services and amenities fee as compulsory student unionism: ‗It does not matter how you try to dress it up; it is an infringement on individuals‘ rights and liberties, especially the right to a tertiary education. To be denied the right to a tertiary education because you do not want to pay a student union fee, now dressed up as an amenities fee, is abhorrent to every instinct within me‘.17 Coalition senators in their dissenting committee report also argued the fee was an unnecessary added expense for students. They also expressed concern that the old bill provided inadequate protection against political activity and inadequate mechanisms for students to scrutinise expenditure. 18

Position of significant interest groups

Australasian Campus Union Managers‘ Association (ACUMA), Australian University Sport (AUS) and Universities Australia welcomed the old bill as a means of restoring student services.19 Universities Australia has called for the government to ‗implement the policy commitment to a new student services and amenities fee through successful negotiation of passage of the legislation and speedy implementation of the policy‘.20

16. S Mirabella (Shadow Minister for Youth), Labor’s ‘university tax’ legislation needs scrutiny, media release, 11 February 2009, http://parlinfo/parlInfo/download/media/pressrel/2JRS6/upload_binary/2jrs60.pdf;fileType= application%2Fpdf#search=%22mirabella%22 viewed 13 October 2009.

17. E Abetz, ‗Second reading speech: Higher Education Legislation Amendment (Student Services and Amenities, and other Measures) Bill 2009‘,Senate, Debates, 17 August 2009, p. 5048

18. See: Senate Education, Employment and Workplace Relations Committee, The Higher Education Legislation Amendment (Student Services and Amenities, and other Measures) Bill 2009 [Provisions], Report, Coalition Senators‘ Dissenting Report, March 2009, pp 21-27, http://www.aph.gov.au/Senate/committee/eet_ctte/higher_ed/report/d01.htm viewed 13 October 2009.

19. Australian University Sport (AUS) and Australasian Campus Union Managers‘ Association (ACUMA), Government introduces Bill in support of campus life, Draft media release, 12 February 2009.

20. Universities Australia ‗Response to the Review of Australian Higher Education (‗the Bradley Review‘)‘, 17 February 2009, http://www.universitiesaustralia.edu.au/documents/publications/policy/submissions/Bradley -Report-Response-Feb2009.pdf viewed 13 October 2009.

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009 9

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

The Australian Liberal Students‘ Federation ran an online campaign against the old bill and continue to oppose the Bill.21 Other student groups, including the National Union of Students and the Council of Australian Postgraduate Associations are concerned over the provisions that prevent funds going directly to student associations.22 The NUS told the Senate Committee hearing into the old bill that:

We are disappointed by this legislation. Student representation has been hit hardest by the introduction of VSU. This new law will not be good enough to restore the student voice on campus. It has long been our position that students should decide how their money is spent on campus and to politically organise to activate those views. They will not have the ability under the new legislation to do this. In fact, this law may act as a disincentive to voluntary membership on campus—voluntary membership that could fund an independent voice.23

Their concerns were supported by the Greens who called for more effective student advocacy in additional comments to the committee report and during debate on the old bill.24

In the lead up to the debate on the old bill the leader of the National Party in the Senate, Senator Joyce, was reported to be considering crossing the floor ‗suggesting other Nationals may join him in abandoning the Liberal Party‘s holy grail of voluntary student unionism because it had been a ―fiasco‖ that had punished country students who enjoyed playing sport‘.25 National Party senators were prepared to support an amended bill.

21. Stop Student Taxes website: http://stopstudenttaxes.com/?source=cmailer accessed 23 February 2009; see also D. Harrison, ‗Liberal students seek fee block‘, The Age, 16 February 2009.

22. Council of Australian Postgraduate Associations (CAPA), Postgrads cautiously welcome VSU fix, media release, 3 November 2008.

23. D Barrow, Senate Education, Employment and Workplace Relations Committee, The Higher Education Legislation Amendment (Student Services and Amenities, and other Measures) Bill 2009 [Provisions], Hansard transcript, 4 March 2009, http://www.aph.gov.au/hansard/senate/commttee/S11833.pdf accessed 12 October 2009.

24. S Hanson-Young, Greens concern over new VSU bill, media release, 11 February 2009.

25. S Maiden and P Karvelas, ‗Joyce threatens to back student fee‘, The Australian, 4 November 2008, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2F pressclp%2F2F0S6%22 viewed 14 October 2009, see also S. Maiden, ‗Compulsory $250 university student fee faces Senate fight‘, The Australian online, 3 November 2008, http://www.theaustralian.news.com.au/story/0,25197,24593032-12332,00.html viewed 14 October 2009. In 2005 Senator Joyce supported the abolition of compulsory student union fees and prohibiting the use of fees for political activities but argued for fees to fund amenities and services such as those proposed in the current Bill. Senator Joyce‘s amendments were negatived and he subsequently crossed the floor and voted against the

10 Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Senators Joyce, Williams and Nash moved an amendment to allow sporting and recreational facilities to be covered by an amenities fee but the amendment was defeated.26 National Party senators did not cross the floor and the old bill was defeated. They will again be crucial to the passage of the Bill. At a meeting of the Federal Council of the National Party shortly after the defeat of the old bill the party agreed to ‗support[s] the introduction of a deferrable, compulsory tertiary student services fee for the purposes of funding sport and healthcare at universities, but recommends that discounts or exemptions be considered for external students‘.27 However the Bill‘s provisions will not restrict universities to spending the amenities fees only on sport and healthcare facilities.

Recognising the importance of National Party senators to the passage of the Bill, the second reading speech by the Hon Richard Marles, focuses on the National Party. It commends the party for their commitment to students from rural and regional areas and calls on the party to support the bill arguing it is in the best interests of rural and regional universities and their students.28

Key issues

Should the fee be compulsory?

The Bill does not propose a return to compulsory student union membership. Therefore the argument that compulsory student union membership infringes upon the fundamental right to freedom of association in this respect is irrelevant. However it could be argued that the compulsory fee constitutes a subsidy for services that the student may not wish to utilise. For example, many part-time and external students may never use the facilities and services, but still have to pay the annual charge. Universities Australia argue that ‗not all students may use these services during their study, but is firmly of the view that it is better for all students to contribute to the provision of the services, which are then available to all, than to not have the services available to those who need them. Additionally, such services will

bill. The bill passed however with the support of Senator Fielding. See Senate, Journals, SJ no 68, 9 December 2005

26. Senate, Debates, 17 August 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber% 2Fhansards%2F2009-08-17%2F0000%22 viewed 12 October 2009.

27. The National Party of Australia, The Nationals Federal Council 2009: Motions Carried, Canberra, 22-23 August 2009, p. 2, http://www.nationals.org.au/LinkClick.aspx?fileticket=MmK2vPLUq1A%3d&tabid=126 accessed 10 September, 2009.

28. R Marles, ‗Second reading speech: Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009, House of Representatives, Debates, 9 September 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber% 2Fhansardr%2F2009-09-09%2F0012%22 accessed 12 October 2009.

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009 11

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

provide a safety net for those students who had begun their study with no need for the services, but whose situations change for the worse during the course of their study‘.29

Is SA-HELP necessary?

Professor Jane den Hollander, convenor of Universities Australia Deputy Vice-Chancellors Committee, describes the proposed SA-HELP as complex, ‗complicated and confusing for students and annoying and time consuming for everyone‘.30

There is some argument for reducing duplication, administration and cost through incorporating the loan for the $250 amenities fee into the existing HECS-HELP system. Universities Australia CEO, Glenn Withers, expressed hope that delay in the passage of the old bill would give the Government time to reconsider the introduction of the separate SA-HELP.31 However the provisions remain unchanged in the Bill.

Should higher education providers control the funds?

The proposal not to return to a system where student unions received the bulk of the funds and provided most of the services is cause for debate. The Newcastle University Students‘ Association (NUSA) point out that ‗this legislation does not prohibit universities from funding student organisations. However, student organisations which are properly performing their role, including holding universities to account, are unlikely to attract funding from the university as this represents a conflict of interest‘.32 The Council of Australian Postgraduate Associations (CAPA) argue that ‗student representation and academic advocacy can only be effective where it is truly independent, and that it cannot be truly independent where the university has discretionary control over 100% of student money under this fee.‘ 33 CAPA recommends that the Guidelines should require providers

29. Universities Australia, Submission to Senate Committee Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009, Canberra, Universities Australia, February 2009, http://www.universitiesaustralia.edu.au/documents/publications/policy/submissions/UniAus-Student-Serv-Amen-Sub-Feb-09.pdf accessed 24 February 2009.

30. J den Hollander, ‗2025: getting the focus sharper‘, Campus Review, 14 April 2009, p. 9.

31. J Ross, ‗Silver lining in senate delay: UA‘, Campus Review, 7 July 2009, p. 2.

32. Newcastle University Students‘ Association (NUSA), Submission to Senate Committee Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=c6419102-6090-425b-b2c6-6a7938a121fb viewed 12 October 2009.

33. Council of Australian Postgraduate Associations (CAPA), Draft Student Amenities Fee Guidelines Announced, media release, 19 February 2009, http://www.capa.edu.au/mediarelease/2009/draft_guidelines viewed 12 October 2009; Council of Australian Postgraduate Associations (CAPA), Submission to the Senate Inquiry

12 Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

to make a fixed amount or proportion of the fee directly to student organisations and that provisions that prevent that should be deleted from the Bill.34

Universities Australia welcomes the freedom to contract services to providers other than student unions as ‗the Unions may not be the most appropriate providers of these services and amenities envisaged by this Amendment.‘35

Will the fee be sufficient to restore essential student services and reinvigorate campus life?

A 2004 Australian Vice-Chancellors‘ Committee survey found student services and amenities charges ranged from $100 to more than $350. The median was in the range $200 to $250.36 The fees raised $172.8 million of which $24.8 million or 14 per cent was spent on advocacy, representation and political activity.37 In 2007 there were 664,381 full-time students and 312,405 part-time students at Australia‘s public universities. Assuming universities charge full-time students $250 and part-time students $125 the fees would raise $205 million. With the restriction on payments for political activity this should be sufficient to reinstate a range of services at most universities. Those universities which charged more than $300 in 2004 may need to provide additional funds from other sources of income. ACUMA is concerned that the $250 cap will be inadequate ‗if the government‘s intent is that the capped fee also provide for the on-going capital infrastructure needs (inclusive of deferred maintenance liabilities on existing buildings and

into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009, CAPA, Carlton South, February 2009, p. 8, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=b5f01f65-a2f1-4e0d-ba7b-295f7cb68820 viewed 12 October 2009.

34. Proposed subsection 19-67(3) prevents the Guidelines from requiring a provider to fund an organisation of students, or of students and other persons.

35. Universities Australia, Submission to Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009, Universities Australia, Canberra, February 2009, http://www.universitiesaustralia.edu.au/documents/publications/policy/submissions/UniAus-Student-Serv-Amen-Sub-Feb-09.pdf viewed 12 October 2009

36. Similar fees were listed in a Table of Annual compulsory student services fees by institution, 2003, in B Nelson (Minister for Education, Science and Training), ACCC Decision Working Against Students, media release, 1 May 2003, http://parlinfo/parlInfo/download/media/pressrel/BC796/upload_binary/bc7964.pdf;fileType =application/pdf#search=%22accc%20nelson%22 viewed 12 October 2009.

37. Australian Vice-Chancellors‘ Committee, AVCC report on Higher Education Support Amendment (Abolition of Compulsory Up-front Student Fees) Bill 2005, AVCC, Canberra, June 2005, pp. 5-8

http://www.universitiesaustralia.edu.au/documents/publications/policy/submissions/AVCC_ report_HESABill-2005.pdf viewed 12 October 2009.

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009 13

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

construction/acquisition of new buildings and grounds/facilities) of the campus services sector‘.38

An alternative view is put by the University of Queensland Union which opposes the introduction of the services and amenities fee: ‗VSU has not resulted in a lessening of campus culture or available services and activities ... The UQ Union has been able to maintain all essential representational and advocacy services that were provided before VSU and is constantly investing in new areas that will encourage further involvement and awareness of the Union‘s services‘.39

Will the guidelines clearly define activities that providers cannot fund?

The Bill in new section 19-38 proposes to prohibit student services and amenities funds supporting political parties or the campaigns of those seeking political office. Higher education providers will be given further guidance on the legitimate disbursements of funds in the proposed Student Services and Amenities Fee Guidelines (the ‗Fee Guidelines‘).40 The proposed Fee Guidelines, released by the Minister on 19 February 2009, allow support of a range of activities including ‗clubs and societies‘.41 Universities may find they are in conflict with the new legislation if the activities of such clubs and societies are interpreted as supporting a political party. As the Australian Liberal Students‘ Foundation points out: ‗There are numerous student organisations that are political in nature that will be eligible to receive monies compulsorily acquired from students, as the majority of political groups on campus would not meet these requirements … In fact, the

38. ACUMA, Submission to Senate Committee Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=0e0b3a23-29f7-4ee4-bf31-697482ca5ea3 viewed 12 October 2009.

39. University of Queensland Union, Submission to Senate Committee Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009,

https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=f9616d3e-510a-4135-afc5-5280e829fd53 viewed 12 October 2009.

40. The Fee Guidelines will be made under section 238-10 of the Act and will be disallowable instruments as will any amendments made to them.

41. K Ellis (Minister for Youth), Securing the future of university support services, media release, 19 February 2009; Student Services and Amenities Fee Guidelines http://www.dest.gov.au/NR/rdonlyres/2B5C712C-FE76-451E-839F-22F8A377F162/25473/090218StudentServicesandAmenitiesFeeGuidelines.pdf viewed 12 October 2009.

14 Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Australian Liberal Students‘ Federation will not be prevented from obtaining money from a student organisation, as it is not a political party per se‘.42

Will the fee be a financial burden on students?

This may have been a legitimate concern if the amendment to introduce SA-HELP had not been introduced. Over a three year degree a full-time student will pay a maximum $750. Universities Australia has calculated that this will represent 3.6% of the total HELP debt of a graduating student with an average HELP debt of $20,579.43

Financial implications

The Explanatory Memorandum states ‗the estimated financial impact of SA-HELP over the period 2008-09 is $200.403 million in expenses and -$97.909 million on fiscal balance‘.44

Main provisions

Schedule 1

Schedule 1 amends the Act and deals with the proposed student services and amenities fee.

Item 4 adds three new subsections to section 19-37 of the Act. Proposed subsection 19-37(4) allows providers to charge a compulsory student services and amenities fee. Proposed subsection 19-37(5) defines the student services and amenities fee amount which must be determined in accordance with the Student Services and Amenities Fee Guidelines (the Fee Guidelines). The guidelines are made under section 238-10 of the Act

42. Australian Liberal Students‘ Federation (ALSF), Submission to Senate Committee Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009, p. 9 https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=0b961a68-cfe7-4a74-9c3e-bdb6c353366b viewed 12 October 2009.

43. Universities Australia, Submission to Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009, Universities Australia, Canberra, February 2009, http://www.universitiesaustralia.edu.au/documents/publications/policy/submissions/UniAus-Student-Serv-Amen-Sub-Feb-09.pdf viewed 12 October 2009

44. Explanatory Memorandum, p. 3.

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009 15

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

and are disallowable instruments. Proposed Fee Guidelines were released by the Minister on 19 February 2009.45

Proposed paragraph 19-37(5)(e) sets an upper limit of $250 for annual fees from 2010, though this limit is indexed.

The Bill does not change existing subsection 19-37(1) which prohibits a higher education provider requiring a person to be a member of a student organisation.

Item 5 proposes a new section 19-38 that defines the spending of student services and amenities fees. The fees cannot be used to support, or to pay a person or organisation to support, a political party or the election of a person to a Commonwealth, State or Territory legislature; or to a local government body. ‗Political party‘ is not defined under the Bill or existing Act. Proposed subsection 19-38(3) limits the spending of the student services and amenities fees to purposes specified in the Student Services and Amenities Fee Guidelines (the ‗Fee Guidelines‘).

The Fee Guidelines will be vital if providers are to successfully comply with the legislation. The proposed Fee Guidelines include seventeen categories of allowable services and amenities and states:

Allowable uses of the fee in relation to services and amenities may include the categories listed below. In all cases the purpose would include but not be limited to, the direct provision of the service or amenity, the provision of infrastructure (including new construction) and subsidies that would reduce the price that students may have to pay.

Already Universities Australia and CAPA have identified a range of services that they consider should be added to the list. Consultation with higher education providers will be necessary to ensure the final Fee Guidelines introduced are not in a form that requires numerous amendments.46

45. K Ellis (Minister for Youth), Securing the future of university support services, media release, 19 February 2009; Student Services and Amenities Fee Guidelines http://www.dest.gov.au/NR/rdonlyres/2B5C712C-FE76-451E-839F-22F8A377F162/25473/090218StudentServicesandAmenitiesFeeGuidelines.pdf viewed 12 October 2009.

46. Universities Australia, Submission to Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009, Universities Australia, Canberra, February 2009, http://www.universitiesaustralia.edu.au/documents/publications/policy/submissions/UniAus-Student-Serv-Amen-Sub-Feb-09.pdf viewed 12 October 2009; Council of Australian Postgraduate Associations (CAPA), Submission to the Senate Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures) Bill 2009, CAPA, Carlton South, February 2009, p. 13,

16 Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Item 6 proposes a new section 19-67 requiring higher education providers that receive funding under the Commonwealth Grants Scheme to comply, from 2010, with Student Services, Amenities, Representation and Advocacy Guidelines (the ‗Advocacy Guidelines‘). The Advocacy Guidelines will detail the National Access to Services Benchmarks, and require providers to provide information on, and access to, non academic student support services. The Advocacy Guidelines will also include National Student Representation and Advocacy Protocols to ensure there are opportunities for students to be part of institutional decision making and have access to advocacy services.47 The Advocacy Guidelines will be made under section 238-10 of the Act and will be disallowable instruments. Proposed subsection 19-67(4) states subsection 19-65(1) does not apply in relation to the Student Services, Amenities, Representation and Advocacy Guidelines. 19-65(1) of the Act states ‗A higher education provider must comply with the requirements of this Act, the regulations and the Guidelines made under section 238-10‘. The National Union of Students in its submission to the Senate Inquiry on the old bill expressed some concern that the Advocacy Guidelines are not legally enforceable: ‗NUS is somewhat mystified why these Guidelines should be exempted from the compliance requirement of the Act‘.48 The National Tertiary Education Union (NTEU) also ‗seeks clarification as to the purpose of clause (4) under proposed Section 19-67, which appears to remove the Student Services, Amenities, Representation and Advocacy Guidelines from compliance requirements for higher education providers‘.49 Certainly neither the Second reading Speech nor the Explanatory Memorandum provide any rationale for the exemption.

Item 10 proposes a new Part 3-5 that introduces a new Higher Education Loan Program (HELP) category for student services and amenities fees called Services and Amenities-HELP (SA-HELP).

https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=b5f01f65-a2f1-4e0d-ba7b-295f7cb68820 viewed 12 October 2009.

47. Student Services, Amenities, Representation and Advocacy Guidelines http://www.dest.gov.au/NR/rdonlyres/7E49B522-3A12-4581-9D3C-CA3B4561A703/25471/090218StudentServicesAmenitiesRepresentationandAdv.pdf viewed 12 October 2009.

48. National Union of Students (NUS) Submission to the Senate Committee Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures Bill 2009), February 2009, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=51cada71-42c5-48e5-8c70-caa0cbfdfa99 viewed 12 October 2009.

49. The National Tertiary Education Union (NTEU), Submission to the Senate Committee Inquiry into the Higher Education Legislation Amendment (Student Services and Amenities, and Other Measures Bill 2009), NTEU, South Melbourne, 20 February 2009, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6130a3a7-09ac-4066-84f5-f2bf106e2d51 viewed 12 October 2009.

Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009 17

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

SA-HELP will allow eligible students to defer the payment of the student services and amenities fees if they choose and add it to other income contingent HELP loans taken during their study.

Concluding comments

The issue of student amenities fees has historically generated passionate debate, both in parliaments and in the public domain, much of it centred on the issue of student unionism and the compulsory payment of fees to student organisations. The Bill implements a middle path in the policy debate. It meets a government promise to restore campus amenities, services and student representation - which have been heavily cut since the Howard Government enacted the 2005 voluntary student unionism legislation - without restoring compulsory student unionism. However it does propose a compulsory fee which will be administered by higher education providers who must in turn comply with the provisions of the Higher Education Support Act and the requirements of the Advocacy Guidelines and the Fee Guidelines made under the Act. The compulsory element of the fee will continue to generate debate of a philosophical and ideological nature. However Parliament may need to scrutinise the details in the Bill and the proposed Advocacy Guidelines and Fee Guidelines to ensure that higher education providers have clarity in their administration of the student services and amenities fees and compliance with the legislation.

18 Higher Education Legislation Amendment (Student Services and Amenities) Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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