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Higher Education Support Amendment (2021 Measures No. 1) Bill 2021

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2019-2020-2021

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Higher Education Support Amendment (2021 Measures No. 1) Bill 2021

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Education and Youth,

the Honourable Alan Tudge MP)



Higher Education Support Amendment (2021 Measures No. 1) Bill 2021

 

OUTLINE

 

The purpose of the Higher Education Support Amendment (2021 Measures No. 1) Bill 2021 ( the Bill ) is to amend the Higher Education Support Act 2003 ( HESA ).

 

The proposed amendments list Avondale University as a Table B provider and amend the definition of a ‘grandfathered student’ to include students undertaking an honours course that is related to a course of study they commenced before 1 January 2021 with a higher education provider. It also provides the Minister with the authority to make a legislative instrument to make rules prescribing matters of a transitional nature relating to the amendments and repeals made by the Bill.

 

The proposed amendment to list Avondale University in HESA as a Table B provider recognises the university recently achieving registration as an ‘Australian University’ by the Tertiary Education Quality and Standards Agency (TEQSA), and its teaching and research performance. The amendment will contribute to specialisation, differentiation and quality across the higher education sector.

 

This Bill also proposes to amend HESA to allow for grants to be made that will support the translation and commercialisation of research by higher education providers, including through closer engagement with industry partners.

 

The proposed amendment to the definition of a ‘grandfathered student’ in HESA will clarify grandfathering arrangements under the Job-ready Graduates package of reforms to higher education. The Higher Education Support Amendment (Job-ready Graduates and Supporting Regional and Remote Students) Act 2020 amended HESA to change student and Commonwealth contribution amounts, to encourage students to enrol in courses in areas of job growth. Those amendments inserted a definition of ‘grandfathered student’ in Schedule 1 of HESA to treat certain existing students (on 1 January 2021) beneficially where the changes would otherwise result in those students being charged a higher student contribution amount.

 

The proposed amendments relate to honours students in particular. Under the current definition, Commonwealth supported students who completed a course at the bachelor level after 1 January 2021 do not fall within the definition of ‘grandfathered student’ when they commence a subsequent related honours course. The current definition of a ‘grandfathered student’ only applies where a student completed the bachelor level course prior to 1 January 2021. Where a student commences or transfers to a new related honours course after 1 January 2021, they are also not covered by the definition.

 

The policy intention is that a student should be a ‘grandfathered student’ where they commenced a bachelor level course before 1 January 2021 and subsequently commence a related honours course.

 

To benefit the greatest number of students, these amendments will apply to any student who meets the new definition and undertakes a unit of study in an ongoing course or an honours course with a census date on or after 1 January 2021, whether the person enrolled in that unit before, on or after the amendments commence. This means some students will retrospectively become grandfathered students, and any student contribution amounts deferred to the Higher Education Loan Program (HELP) or paid up-front may need to be re-credited or refunded, respectively.

 

To ensure the seamless and beneficial transition of these amendments in relation to students affected retrospectively (defined as ‘transitional grandfathered students’), the Bill also proposes to provide the Minister with the power to make rules prescribing matters of a transitional nature by legislative instrument, with certain limits imposed. For example, such rules may only be made within 12 months of the amendments commencing.

 

Transitional matters that may be dealt with in the rules include:

·          refunding of upfront payments made by a ‘transitional grandfathered student’;

·          re-crediting the HELP balance of a transitional grandfathered student, and reducing their HELP debt;

·          the repayment of any HECS-HELP discount paid by the Commonwealth to higher education providers in respect of a transitional grandfathered student;

·          the circumstances in which an amount payable under the rules is taken to be a debt due to the Commonwealth; and

·          any other matters that will ensure transitional grandfathered students are put in the same position they would have been had they been a grandfathered student.

 

By providing the Minister with these powers in subordinate legislation, the department will be able to ensure that the rules are appropriately designed to result in minimal impact to either the affected students or their higher education providers.

 

Schedule 1 of the Bill also amends HESA to strengthen the ability to support the translation and commercialisation of research by higher education providers, including through closer engagement with industry partners.

 

The proposed amendment will help maximise the social and economic benefits of Australia’s multibillion-dollar university research sector by enabling a range of new activities that will help translate high-quality university research into breakthrough products, new businesses and ideas needed to grow the economy and improve our society.

 



FINANCIAL IMPACT STATEMENT

 

The financial implications of this Bill are expected to be negligible.

 

The grandfathering amendments in Schedule 1 of the Bill will result in an overall positive financial impact due to the reduction of Higher Education Loan Program (HELP) debt and payments of the HECS-HELP upfront discount in respect of eligible study undertaken by grandfathered and transitionally grandfathered students.

 

The grandfathering amendments will have no financial impact on Commonwealth Grant Scheme funding paid to higher education providers. Providers can only be paid a maximum basic grant amount (MBGA). For the grant years 2021 to 2023, eligible providers’ MBGAs are guaranteed by the Higher Education Continuity Guarantee. This means eligible providers will receive their full MBGA, no more and no less, irrespective of their actual enrolments.

 

The amendments to list Avondale University as a Table B provider will have no financial impact. However, Avondale University may receive greater access to grants under HESA as a result of this listing.

 

The amendment in Schedule 1 of the Bill for the translation and commercialisation of university research will have no financial impact. However, Table A providers, Table B providers and other bodies corporate may receive grants under HESA as a result of the new item.

 

 

CONSULTATION

 

On 24 September 2021, Professor Kevin Petrie, Vice-Chancellor and President of Avondale University, wrote to the Minister for Education and Youth requesting for Avondale to be listed as a Table B provider under HESA. The Minister approved this request on 27 October 2021.

 

The Government’s research commercialisation reform agenda has been developed on the advice of an Expert Panel of industry and university leaders, informed by extensive consultation with universities, industry and other experts, and the public. A public consultation paper released in February 2021 attracted over 170 submissions from researchers, businesses, universities and government agencies. These consultations have revealed strong stakeholder support for new Commonwealth grants to increase collaboration between universities and industry and to assist the commercialisation of university research.

 

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Prepared in accordance with Part 3 of the Human Rights

(Parliamentary Scrutiny) Act 2011

 

Higher Education Support Amendment (2021 Measures No. 1) Bill 2021

 

The Higher Education Support Amendment (2021 Measures No. 1) Bill 2021 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The purpose of the Higher Education Support Amendment (2021 Measures No. 1) Bill 2021 ( the Bill ) is to amend the Higher Education Support Act 2003 ( HESA ).

 

The proposed amendments list Avondale University as a Table B provider and amend the definition of a ‘grandfathered student’ to include students undertaking an honours course that is related to a course of study they commenced before 1 January 2021 with a higher education provider. It also provides the Minister with the authority to make a legislative instrument to make rules prescribing matters of a transitional nature relating to the amendments and repeals made by the Bill.

 

The proposed amendment to list Avondale University in HESA as a Table B provider recognises the university recently achieving registration as an ‘Australian University’ by the Tertiary Education Quality and Standards Agency (TEQSA), and its teaching and research performance. The amendment will contribute to specialisation, differentiation and quality across the higher education sector.

 

This Bill also proposes to amend HESA to allow for grants to be made that will support the translation and commercialisation of research by higher education providers, including through closer engagement with industry partners.

 

The proposed amendment to the definition of a ‘grandfathered student’ will clarify grandfathering arrangements under the Job-ready Graduates package of reforms to higher education. The Higher Education Support Amendment (Job-ready Graduates and Supporting Regional and Remote Students) Act 2020 amended HESA to change student and Commonwealth contribution amounts, to encourage students to enrol in courses in areas of job growth. Those amendments inserted a definition of ‘grandfathered student’ in Schedule 1 of HESA to treat certain existing students (on 1 January 2021) beneficially where the changes would otherwise result in those students being charged a higher student contribution amount.

 

The proposed amendment relates to honours students in particular. Under the current definition, Commonwealth supported students who completed an ‘ongoing course’ at the bachelor level after 1 January 2021 are not considered grandfathered students for a subsequent related honours course. The current definition of a grandfathered student only applies where a student completed an ‘earlier course’ prior to 1 January 2021. Where a student commences or transfers to a new related honours course after 1 January 2021, they are also not covered by the definition.

 

The policy intention is that a student should be a ‘grandfathered student’ where they commenced a bachelor level course before 1 January 2021 and subsequently commence a related honours course.

 

Analysis of human rights implications

The Bill engages the right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

Right to education

The Bill engages the right to education, which is set out in Article 13 of the ICESCR. Article 13 recognises the important personal, societal, economic and intellectual benefits of education. Article 13 provides that secondary education in all its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means.

 

The proposed amendment to the definition of a ‘grandfathered student’ will capture more students than the previous definition, as it will include students who undertake an honours course that is related to a course of study they commenced before 1 January 2021. This will mean that an increased number of students will pay a reduced student contribution amount for a place in a unit of study. This will reduce the financial burden on those students, and improve their access to education.

 

The Bill also proposes to list Avondale University as a Table B provider. The amendment will give Avondale University access to funding arrangements provided to Table B providers - for example, Indigenous student assistance grants under Part 2-2A of HESA and a range of grant programs under Part 2-3 of HESA. Avondale University’s eligibility to grants will improve access to education for students at Avondale University as they will be able to benefit from a wider range of grants, reducing their barriers to their study.

 

Amendments to broaden the purposes for which ‘other grants’ can be made under HESA also promote the right to education because these grants will assist higher education providers translate their research into a range of commercial outcomes in collaboration with industry, benefiting both industry and the education sector.

 

Conclusion

 

The Bill is compatible with human rights as it supports the right to education.

 

Minister for Education and Youth, the Hon Alan Tudge MP



 

 

Higher Education Support Amendment (2021 Measures No. 1) Bill 2021

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.       This clause provides for the Act to be the Higher Education Support Amendment (2021 Measures No. 1) Act 2021.

 

Clause 2 - Commencement

 

2.       This clause states that the Act commences the day after the Act receives the Royal Assent.

 

Clause 3 - Schedules

 

3.       This clause provides that any legislation 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—Amendments

 

 

Summary

 

This Schedule amends the Higher Education Support Act 2003 (HESA) to:

 

·          list Avondale University as a Table B provider;

·          insert new purposes for which ‘other grants’ may be made under Part 2-3 of HESA (to assist higher education providers to translate research into commercial outcomes); and

·          insert a new item and amend the definition of a ‘grandfathered student’ to include students undertaking an honours course that is related to a course of study that they commenced before 1 January 2021.

 

It also provides the Minister with the authority to make a legislative instrument to make rules prescribing matters of a transitional nature relating to the amendments and repeals made by the Bill, as a beneficial measure for affected students.

 

 

Higher Education Support Act 2003

 

Item 1 - Subsection 16-20(1) (table)

 

4.       The table in subsection 16-20(1) lists Table B providers. Item 1 inserts Avondale University into the table to list Avondale University as a Table B provider.

 

Item 2 - Subsection 41-10(1) (at the end of the table)

 

5.       Item 2 amends the table at subsection 41-10(1) to include a new purpose for which grants may be given to Table A providers, Table B providers and bodies corporate that are specified in the Other Grants Guidelines under Part 2-3 (Other Grants) of HESA.  The amendment will insert a new item 14 into that table. This new item will allow other grants to be paid to assist higher education providers to translate research into commercial outcomes, including through collaboration with industry. 

 

Items 3 and 4 - Subclause 1(1) of Schedule 1

 

6.       Subclause 1(1) of Schedule 1 defines terms that are used in HESA. One of the terms defined in subclause 1(1) of Schedule 1 is the term ‘grandfathered student’.

 

7.       Item 3 inserts a new subparagraph (ia) into the definition of ‘grandfathered student’. Subparagraph (ia) provides that, where a person commenced a course of study (the ongoing course) with a higher education provider before 1 January 2021, completes that course and commences another course of study (an honours course that leads to an honours degree) and that relates to the ongoing course, the person is covered by the definition of ‘grandfathered student’.

 

8.       Item 4 is a technical amendment to reflect that the term ‘higher education award’ is used earlier in the provision (the symbol ‘*’ is not needed for the second use of the term, to reflect drafting practice throughout HESA) .  

 

Item 5 - Application—definition of grandfathered student

 

9.       Item 5 provides that the amendment made by item 2 to the definition of ‘grandfathered student’ applies on or after the commencement of that item in relation to a person who undertakes a unit of study in an ongoing course or an honours course that has a census date on or after 1 January 2021, whether the person enrolled in that unit of study before, on or after the commencement of that item. This provision clarifies that the amendment to the definition will apply to existing students and will mean that students who commenced an honours course after 1 January 2021 will be covered by the new definition where they commenced the bachelor level course that relates to the honours course prior to 1 January 2021.

 

Item 6 - Transitional Rules

 

10.   Subitem (1) in Item 5 provides the Minister with authority to make rules prescribing matters of a transitional nature relating to the amendments or repeals made by this Schedule in a legislative instrument. This is intended to be a beneficial measure for affected students.

 

11.   Subitem (2) clarifies that, without limiting subitem (1), the rules may make provision for, or in relation to, the following matters:

 

                     (a)  requiring a higher education provider, or the Secretary, to refund amounts of upfront payments made by a transitional grandfathered student;

                     (b)  requiring a higher education provider, or the Secretary, to recredit the HELP balance of a transitional grandfathered student;

                     (c)  requiring a higher education provider to repay amounts paid by the Commonwealth to the higher education provider under Division 96 of HESA in respect of a transitional grandfathered student;

                     (d)  the circumstances in which the whole or part of an amount payable under the rules is taken to be a debt due to the Commonwealth;

                     (e)  any other matters that will, to the greatest extent possible, put transitional grandfathered students in the same position they would have been had they been a ‘grandfathered student’ on 1 January 2021.

 

12.   It is appropriate for these matters to be dealt with in subordinate legislation because the rules will enable the Minister to, as a benefit to affected students, subsequently work through any complexities relating to refunds to students and their HELP balances and HELP debts, as a result of this measure. Notably, ‘transitional grandfathered students’ are only a limited cohort (students who commenced an honours course after 1 January 2021) and these transitional rules will only apply to benefit this cohort and will not affect students more broadly.

 

13.   Subitem (3) provides that, without limiting subitem (1), the rules that make provision for, or in relation to, a matter mentioned in subitem (2) may do so by providing that HESA, or any other Act or instrument has effect with any modifications prescribed by the rules, within the limits otherwise provided by the item.

 

14.   Subitem (4) provides a limitation on when rules under subitem (1) can be made. Rules under subitem (1) may only be made before the end of the period of 12 months starting on the day this Schedule commences. Subitem (4) clarifies that the rules may still continue to apply on and after the end of that period, and may be revoked by the Minister, by legislative instrument, before, on or after the end of that period.

 

15.   Subitem (5) clarifies that the rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of arrest or detention or entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

                     (e)  directly amend the text of this Act.

 

16.   Subitem (6) clarifies that this Schedule of the Bill, apart from subitem (5), does not limit the rules that may be made for the purposes of subitem (1).

 

17.   Subitem (7) provides that a person is a ‘transitional grandfathered student’ if:

 

                     (a)  the person is a grandfathered student because of subparagraph (ia) of the definition of that term in Schedule 1 to HESA as amended by this Schedule; and

                     (b)  the person enrolled in a unit of study in an honours course referred to in that subparagraph during the period starting on 1 January 2021 and ending on the day before the commencement of this Schedule.