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Higher Education Legislation Amendment Bill (No. 2) 2004

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2002-2003-2004

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

HIGHER EDUCATION LEGISLATION AMENDMENT BILL (NO. 2) 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 (NO. 2) 2004

 

OUTLINE

 

 

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 over enrolments estimates.

 

·          Set new maximum aggregate funding amounts for transition funding in section 110A of HEFA for the years 2005-07 to reflect indexation increases.

 

The Bill will amend the Higher Education Support Act 2003 to:

 

·          Include a requirement that the Minister may approve a body corporate as a higher education provider only if the body has as its principal purpose the provision of education and/or research (ss16-25, 22-7, 225-5, 225-10, 225-20) .

 

·          Include a requirement that higher education providers make opportunities equally available to all its students and all persons seeking to enrol with the provider, including open, fair and transparent procedures based on merit for making decisions about the selection of students (s19-35).

 

·          Enable guidelines to be made concerning the grievance procedures for academic as well as non-academic matters of non-Table A providers (s19-45).

 

·          Enable guidelines to be made concerning the conditions which may be applied to student contribution amounts and tuition fees for student cohorts (ss19-88 and 19-91).

 

·          Set new maximum aggregate funding levels for the Commonwealth Grant Scheme under section 30-5 to reflect:

 

o    additional funding for the Australian Maritime College initiative at Point Nepean for the years 2005-07;

o    additional 12 Medical places at James Cook university for the years 2005-07;

o    additional 400 nursing places for the years 2005-07; 

o    an indexation increase for the years 2005-07; and

o    a new paragraph 30-5(1)(d) to provide base funding for 2008 consistent with the forward estimates.

 

·          Clarifies the definition of ‘request for Commonwealth assistance’ (s36-40).

 

·          Set new maximum aggregate funding levels for Other Grants under section 41-15 to reflect:

 

o    a technical adjustment to transfer funding for the Indigenous Higher Education Advisory Council to the Annual Appropriations Act;

o    additional National Institute funding for the Australian Maritime College initiative at Point Nepean for the years 2005-07;

o    funding for the medical school at the University of Western Sydney for the years 2005-07;

o    additional funding to continue the Regional Protection Scheme for the years 2005-07;

o    continuing funding of Research Infrastructure under Backing Australia’s Ability in 2007;

o    an indexation increase for the years 2005-2007; and

o    the provision of base funding for 2008 consistent with the forward estimates.

 

·          Amend the Commonwealth Scholarships provisions to extend to all providers with Commonwealth supported places (ss46-15, 46-20, 46-30, Clause 1 of Schedule 1).

 

·          Set new maximum aggregate funding levels for Commonwealth Scholarships under section 46-40 to reflect:

 

o    an increase in indexation for the years 2005-07; and

o    the provision of base funding for 2008 consistent with the forward estimates.

 

·          Amend Citizenship or residency requirements for HECS-HELP, FEE-HELP and OS-HELP assistance so that all persons who hold a permanent humanitarian visa (PHV) that may have been issued under past regulations are eligible for assistance, even if that visa subclass has become obsolete or has been repealed (ss90-5, 104-5, 118-5, Clause 1 of Schedule 1).

 

·          Amends the meaning of HECS-HELP discount for a unit of study in relation to partial up-front payment of student contribution amounts (s96-5).

 

·          Amend to ensure that Open Learning Australia (OLA) is subject to all the necessary provisions in HESA so that FEE-HELP can be appropriately administered for OLA students, and that OLA is required to comply with the relevant Quality and Accountability requirements.

 

·          Includes a requirement  that providers must publish the census date and the EFTSL value for the unit by the date and in the manner specified by the Administration Guidelines and prohibits providers from varying that date or value after publication (s169-25).

 

·          Amend to clarify the definition of ‘course of study’ to include combined and double degrees (Clause 1 Schedule 1).

 

·          Provides for the saving of Guidelines issued under HESA by the Commissioner of Taxation that were in force immediately before the commencement of this bill (s187-1).

 

The Bill will also amend the Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003 to:

 

·          clarify the definition of ‘institution’ in section 4 of HEFA to specifically exclude the National Institute of Dramatic Art (NIDA) from the grandfathering provisions in the Transitional Provisions and Consequential Amendments Act .

 

The Bill will also amend the Australian National University Act 1991, to enable the ANU to comply with the National Governance Protocols.

 

 

FINANCIAL IMPACT

 

 

In relation to the Higher Education Funding Act 1988 , the Bill:

 

-      increases the overall appropriation by $16.037 million in 1 January 2004 to 31 December 2007.

 

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 $398.907 million for the period 1 January 2005 to 31 December 2007;

 

-      provides base funding of $5.261 billion for the period 1 January 2008 to 31 December 2008.

 

 



HIGHER EDUCATION LEGISLATION AMENDMENT BILL (NO. 2) 2004

 

 

NOTES ON CLAUSES

 

 

Clause 1 - Short title

 

Provides for the Act to be cited as the Higher Education Legislation Amendment Act (No. 2) 2004 .

 

 

Clause 2 - Commencement

 

Provides for Schedule 4 of the Act to commence on the day on which this Act receives the Royal Assent or 1 July 2004, immediately after the commencement of Part 4 of Schedule 2 to the Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003 (whichever is the later) and for items 39 to 45 of Schedule 2 (which contain amendments to offence provisions) to commence on the day after this Act receives the Royal Assent. 

 

Sections 1 to 3 and all other provisions in this Act 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 - Amendment of the 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 over enrolments estimates.

 

 

Item 2

 

Section 110A provides a ministerial discretion to grant transitional financial assistance for the years 2005-2007 to an institution to which financial assistance was payable under Chapter 2 in respect of the year 2004.  Item 2 amends subsection 110A(2) to vary the maximum aggregate grant amount for 2005, 2006 and 2007 to reflect supplementation consistent with indexation arrangements.

 



Schedule 2—Amendment of the Higher Education Support Act 2003

 

Part 1—Amendments

 

 

Item 1

 

Section 16-25 provides for the Minister to approve a body corporate as a higher education provider if the body meets certain conditions.  Item 1 inserts a new paragraph 16-25(1)(aa) which has the effect of adding an additional condition that the body’s sole or principal purpose must be to provide education or conduct research.

 

 

Item 2

 

Section 19-35 makes provision for benefits and opportunities to be available equally to all students as part of the fairness requirements higher education providers must adhere to.  Item 2 inserts new subsections 19-35(4) and (5) which have the effect of adding the requirement that higher education providers make opportunities equally available to all their students and to all persons seeking to enrol with the provider, including open, fair and transparent procedures based on merit for making decisions about the selection and treatment of students, while still allowing a provider to take account of educational disadvantages that a particular student has experienced.

 

 

Item 3

 

Section 19-45 makes provision for student grievance and review procedures as part of the fairness requirements higher education providers must adhere to.  Item 3 replaces subsection 19-45(2) with a new subsection to enable guidelines to be made concerning the grievance procedures for academic as well as non-academic matters of non-Table A providers.

 

 

Items 4 and 5

 

Add new subsections 19-88(5) and 19-91(5) which have the effect of enabling guidelines to be made concerning the conditions which may be applied to student contribution amounts and tuition fees for student cohorts.

 

 

Item 6

 

Subdivision 22-B of Chapter 2 provides for revocation of a body’s approval as a higher education provider for certain causes.  Item 6 inserts a new section 22-7 which has the effect of adding an additional cause for revocation if the body’s principal purpose has ceased to be to provide education or conduct research, provided the Minister complies with the requirements of section 22-20 (dealing with the process for revoking approval as a provider for loss of status or a breach).

 



 

Item 7

 

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 additional funding for the Australian Maritime College, additional medical places at James Cook University, additional nursing places and supplementation consistent with indexation arrangements for the years 2005-07.  Item 7 also inserts a new paragraph 30-5(1)(d) to provide base funding for 2008 consistent with the forward estimates.

 

 

Item 8

 

Section 36-40 sets out certain circumstances in which a provider must cancel a person's enrolment in a unit of study.  Item 8 replaces subsection 36-40(3) with a new subsection to redefine a request for Commonwealth assistance in relation to a person enrolling in a unit of study with a higher education provider (where access to the unit was not provided by Open Learning Australia) as meaning a document:

·     In which the person requests the Commonwealth to provide assistance under the Act in relation to the unit (or in relation to the course of study of which the unit forms a part); and

·     that is in the form approved by the Minister; and

·     that the person gives to an appropriate officer of the provider on or before the person’s enrolment in the unit.

 

 

Item 9

 

Repeals the table in subsection 41-45(1) and inserts a new table to vary the maximum payments for Other Grants under Part 2-3 for the years 2005-2007 to reflect continuing funding for Research Infrastructure under Backing Australia’s Ability in 2007, the transfer of funding for the Indigenous Higher Education Advisory Council to the Annual Appropriations, additional National Institute funding for the Australian Maritime College initiative at Point Nepean, funding for the medical school at the University of Western Sydney, additional funding to continue the Regional Protection Scheme and supplementation consistent with indexation arrangements for the years 2005-2007.  The new table also provides base funding for 2008 consistent with the forward estimates.

 

 

Items 10-12

 

Insert a new subsection 46-15(3), replace paragraph 46-20(2)(f) and amend section 46-30 to have the effect of extending the Commonwealth Scholarships provisions to all providers with Commonwealth supported places.

 

 

Item 13

 

Repeals the table in subsection 46-40(1) and inserts a new table to vary the maximum payments for Commonwealth Scholarships under Part 2-4 for the years 2005-2007 to reflect supplementation consistent with indexation arrangements and to provide base funding for 2008 consistent with the forward estimates.

 

 

Items 14, 20 and 37

 

Replace paragraphs 90-5(1)(b), 104-5(1)(b) and 118-5(b) to amend citizenship or residency requirements for HECS-HELP, FEE-HELP and OS-HELP assistance so that all persons who hold a permanent humanitarian visa that may have been issued under past regulations are eligible for assistance, even if that visa subclass has become obsolete or has been repealed.

 

 

Item 15

 

Amends subsection 96-5(4) dealing with the meaning of the HECS-HELP discount for a unit of study in relation to partial up-front payment of student contribution amounts (used in determining how HECS-HELP assistance is paid) to remove the current limitation on the discount to payments totalling $500 or more.

 

 

Items 16-19 and 21-36

 

Amend the description of Part 3-3 FEE-HELP assistance in section 101-1, amend subsection 104-1(1), repeal subsection 104-1(2), insert new sections 104-2, 104-3 and 104-4 and new paragraph 104-25(aa), repeal the note to section 104-25, insert new subsection 104-25(2), amend subsection 104-30(1), insert new subsection 104-30(3), amend paragraph 104-35(1)(a), insert new subsection 104-35(1A), amend subsection 104-35(2), replace paragraph 104-40(1)(a), insert new subsection 104-40(1A), amend subsection 107-10(3), insert new subsection 107-10(4), amend section 110-1, insert new subsection 110-1(2), amend section 110-5 and insert new subsection 110-5(2) to ensure that Open Learning Australia (OLA) is subject to all the necessary provisions in the Act to enable FEE-HELP to be appropriately administered for OLA students and that OLA is required to comply with the relevant Quality and Accountability requirements.

 

 

Item 38

 

Amends section 169-25 (dealing with the determination of census dates and EFTSL values) by repealing subsection 169-25(3) and replacing it with new subsections 169-25(3) and (4) regarding publication of the census date and the EFTSL value for a unit of study.

 

New subsection 169-25(3) requires the provider to publish the census date and the EFTSL value for a unit by the date (and in the manner) specified in the Administration Guidelines.

 

New subsection 169-25(4) prohibits the provider from varying the census date or the EFTSL value for the unit after publication under subsection 169-25(3), unless the provider has the written approval of the Minister.  The provider must publish any variation by the date and in the manner specified by the Minister in the approval.

 



 

Items 39-69 and 74

 

Insert a new paragraph 179-15(1)(c) , new subsection 179-15(3A), new paragraphs 179-15(4)(c) 179-20(ca), (e), (f) and (g) and 179-25(1)(c), replace paragraph 179-35(1)(d) and section 184-1, amend subsection 187-1(1), insert new subsection 187-1(1A), amend subsection 187-1(2), insert new subsection 187-1(3A), replace subsection 187-1(4), insert new subsection 187-1(6), new section 187-2 and new subsection 187-5(2), replace the headings to Division 190 and 193, insert new subsections 190-1(2), 190-5(3) and (4), 190-10(3) and (4) and 190-15(1A), amend subsection 190-15(2), insert new subsection 190-20(1A), amend subsection 190-20(2), insert new subsections 193-1(2A), (2B) and (2C), amend the table and note in section 206-1, replace paragraph 209-1(1)(b) with new paragraphs (b) and (c), amend the note to section 209-1 and insert new subsections 238-1(2A) and (2B) to ensure that Open Learning Australia (OLA) is subject to all the necessary provisions in the Act to enable FEE-HELP to be appropriately administered for OLA students, and that OLA is required to comply with the relevant Quality and Accountability requirements.

 

 

Items 70-73

 

Division 225 of Chapter 6 provides that certain persons (other than natural persons) in the external Territories may apply for approval as self-accrediting entities, or for the accreditation of courses of study that they propose to offer.  Items 70-73 insert new paragraphs 225-5(c) and 225-10(c) and replace paragraphs 225-20(1)(b) and 225-20(2)(b) with new paragraphs (b) and (c) respectively, which have the effect of adding the additional condition that the person’s principal purpose must be to provide education or conduct research to be eligible for approval under Division 225.

 

 

Items 75-84

 

Amend the dictionary of defined terms in Schedule 1 by repealing the definitions and substituting new definitions of appropriate officer , census date , course of study , fee , request for Commonwealth assistance , review officer and tuition fee and inserting new definitions of eligible scholarship provider , officer of Open Learning Australia and permanent humanitarian visa holder to reflect the amendments made by other items in this Schedule.

 

The revised definition of course of study at Item 77 merely makes explicit in the Act the definition already used under the Australian Qualifications Framework.

 



 

Part 2—Transitional provision

 

Item 85

 

Provides for the saving of guidelines issued under subsection 187-1(4) of the Higher Education Support Act 2003 (guidelines issued by the Commissioner of Taxation) that were in force immediately before the commencement of item 85.  These guidelines continue to have effect on and after that commencement as if they had been issued under subsection 187-1(4) as in force after that commencement.  This is not intended to prevent the amendment or revocation of the guidelines.

 



Schedule 3—Amendment of the Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003

 

 

Item 1

 

Repeals item 5 of Schedule 1 and replaces it with a new item to have the effect of amending the definition of institution in section 4 of the Higher Education Funding Act 1988 to specifically exclude the National Institute of Dramatic Art students from the “grandfathering” provisions for HECS students in the Act.

 

 



Schedule 4— Amendment of the Australian National University Act 1991

 

Part 1—Amendments

 

Items 1, 2, 17 and 18

 

Repeal paragraph (b) of the definition of ex officio member in section 3, repeal paragraph 10(1)(b), amend subsection 33(1) and insert new subsection 33(1A) to reflect the fact that the Pro-Chancellor must in future be a member of the Council appointed by the Minister under paragraph 10(1)(q) before being eligible for appointment as Pro-Chancellor by the Council under section 33.  This will enable the Australian National University to comply with the National Governance Protocols .

 

 

Item 3

 

Amends paragraph 10(1)(q)  to increase the number of members of the Council appointed by the Minister on the recommendation of the Nominations Committee of Council from 6 to 7, to reflect the fact that the Pro-Chancellor will no longer be an ex officio member of the Council.

 

 

Item 4

 

Repeals paragraph 12(2)(b) and replaces it with a new paragraph allowing the Pro-Chancellor to preside at a meeting of the Council when the Chancellor is not present, only if the Pro-Chancellor is a member of Council.

 

 

Items 5, 6 and 8

 

Amend subsections 12(3), 13(1) and 13(3) as a consequence of the amendment made by item 4.

 

 

Item 7

 

Amends subsection 13(3) as a consequence of the amendment made by item 9.

 

 

Items 9 and 11

 

Replace subsection 13(4) with new subsections 13(4) and (5) and insert a new subsection 15(1A) which have the effect of providing for Council to remove a member for breach of duties by a vote with at least a two-thirds majority.

 

 

Item 10

 

Amends paragraph 15(1)(k) to clarify the conditions under which a member of the Council must vacate his/her office for breach of his/her duties as a member of Council under section 18A, 18B, 18C, 18D, 18E or 18F, as a consequence of amendments made by items 9 and 11.

 

 

Items 12, 13 and 19

 

Amend subsection 15(2), repeal paragraph 15(2)(b) and amend subsection 33(2) to reflect the fact that the Pro-Chancellor will no longer be an ex officio member of the Council (see amendments made by items 1, 2, 17 and 18).

 

 

Item 14

 

Amends subsection 32(1) to provide that the Chancellor of the University appointed by the Council must not be a student or an employee of the University.

 

 

Item 15

 

Inserts a new subsection 32(1A) to provide that the Chancellor ceases to hold office as Chancellor if he or she becomes a student or an employee of the University.

 

 

Item 16

 

Amends subsection 32(2) as a consequence of the amendment made by item 15.

 



 

Part 2—Transitional provisions

 

Item 20

 

Defines Principal Act as meaning the Australian National University Act 1991 for the purposes of this Part.

 

 

Item 21

 

Provides that the amendments of section 32 of the Principal Act (relating to the Chancellor) made by Part 1 of Schedule 4 to this Act apply to each person holding office as Chancellor under that section on or after the commencement of this item, whether that person was appointed to that office before, on or after that commencement.

 

 

Item 22

 

Transitional provisions for amendments relating to the Pro-Chancellor made by Part 1 of Schedule 4 to this Act.  This item applies to a person who holds office as Pro-Chancellor immediately before the commencement of this item.

 

Subitem (2) provides that the appointment of the person as Pro-Chancellor continues in force after the commencement of this item as if it had been made under section 33 of the Principal Act as amended by this Act.

 

Subitem (3) provides that, for the purposes of the Principal Act as amended by this Act, the person is taken (on the commencement of this item):

·     to have been appointed to the Council by the Minister under paragraph 10(1)(q) of the Principal Act on the recommendation of the Nominations Committee of Council; and

·     to have been so appointed for a period equal to the remainder of the period of his or her office as Pro-Chancellor if no amendment of section 33 of the Principal Act had been made by this Act.

 



Schedule 5—Amendment of the Income Tax Assessment Act 1936

 

Items 1 and 2

 

Amend paragraphs 202F(1)(fa) and (fb) to reflect the insertion of new subsection 190-15(1A) by item 59 of Schedule 2 as part of a number of amendments to the Higher Education Support Act 2003 designed to put Open Learning Australia in the same position as other higher education providers.