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Education Legislation Amendment (2022 Measures No. 1) Bill 2022

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2022

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

EDUCATION LEGISLATION AMENDMENT (2022 MEASURES NO. 1) BILL 2022

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Minister for Education, the Hon Jason Clare MP)

 

 

 





EDUCATION LEGISLATION AMENDMENT (2022 MEASURES NO. 1) BILL 2022

 

OUTLINE

The Education Legislation Amendment (2022 Measures No. 1) Bill 2022 (the Bill) amends the Higher Education Support Act 2003 (HESA) and also makes minor amendments to the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act).

HESA is the main piece of legislation governing Commonwealth funding of higher education in Australia. HESA facilitates the provision of Commonwealth financial support to higher education providers through Commonwealth grants and provides loans to higher education students to cover their tuition and other fees.

The TEQSA Act establishes and governs the Tertiary Education Quality and Standards Agency (TEQSA), which regulates the higher education sector. The TEQSA Act provides for the regulation of the sector via a standards-based quality framework, including matters such as registration of providers and the accreditation of courses, and also addresses academic misconduct, student protection and student access to information.

The Bill makes amendments to:

·          amend the student identifier requirements for a person’s eligibility to receive Commonwealth assistance;

·          clarify the operation of the student learning entitlement provisions in respect of enabling courses (as defined in Schedule 1 of HESA);

·          provide that domestic students undertaking a microcredential course (as defined in item 16 of Part 3 of Schedule 1 to the Bill) are eligible for FEE-HELP;

·          clarify the operation of certain provisions and improve and update the operation of HESA and the TEQSA Act;

·          reduce the amount of FEE-HELP debt incurred by students undertaking a unit of study in 2022 (FEE-HELP loan fee exemption);

·          provide that New Zealand citizens are eligible for HECS-HELP and FEE-HELP only if they are resident in Australia for the duration of the unit; and

·          remove a 10 per cent discount on up-front payments made by HECS-HELP students.

Student Identifier requirements

Part 1 of Schedule 1 to the Bill amends HESA to require that students have a unique student identifier (USI) and give their USI to their higher education provider and the Secretary in order to be eligible for Commonwealth assistance.

Currently, students are required to have a USI by a specified time but are not required to provide it to their higher education provider and the Secretary. As such, higher education providers have experienced difficulties in collecting student identifier information from eligible persons. Higher education providers must be able to collect and provide student identifier information to the Secretary in order to comply with their reporting requirements under HESA. This will in turn allow the USI to be used as a student identifier for the purposes of calculating students’ entitlement to Commonwealth assistance. This will allow the previous identifier, the Commonwealth Higher Education Student Support Number , to be phased out, which will improve the quality of student data collected about higher education students and give effect to the 2019-20 Budget commitment to extend the student identifier scheme to higher education. These amendments will offer certainty to higher education providers and students regarding their responsibilities under legislation in assisting in the administration of the student identifier scheme, and assist higher education providers in assessing students for eligibility for Commonwealth assistance.

Student learning entitlement

Part 2 of Schedule 1 to the Bill amends provisions in HESA relating to the Student Learning Entitlement (SLE) (as defined under subsection 73-1(1) of HESA) by clarifying that units of study undertaken as part of an enabling course will not count towards a student’s SLE. The SLE is a lifetime limit on the amount of Commonwealth support a student can receive through a Commonwealth supported place (CSP).

Microcredential courses

Part 3 of Schedule 1 to the Bill amends Part 3-3 of HESA to provide that domestic students undertaking a unit of study that forms part of a microcredential course (as defined in item 16 in Part 3 of Schedule 1) are eligible for FEE-HELP. This will encourage student interest in microcredential courses, incentivising providers and industry to participate in the microcredential pilot.

Other technical amendments

Part 4 of Schedule 1 to the Bill makes minor technical amendments to clarify the operation of paragraphs 36-24B(2)(b), 36-24BB(2)(b) and 36-24BC(2)(b) under HESA, which set out circumstances in which a higher education provider is to repay amounts to the Commonwealth (such as when a person was not entitled to HELP assistance). The amendments are technical in nature and are intended to describe the amount to be repaid to the Commonwealth with greater specificity.

Part 4 of Schedule 1 also makes minor technical amendments to subsections 26A(7) and (8) of the TEQSA Act to make clear how the Up-front Payments Guidelines may specify information and documents to be provided by a registered higher education provider to the Secretary as distinct from information and documents to be kept for the purposes of compliance with the Tuition Protection Scheme (TPS) requirements set out in section 26A of the TEQSA Act.

FEE-HELP loan fee exemption

Schedule 2 to the Bill amends paragraph 137-10(2)(b) of HESA to extend the FEE-HELP loan fee exemption until 31 December 2022 by providing that the amount of FEE-HELP debt for a unit of study that forms part of an undergraduate course of study with a census date between 1 April 2020 and 31 December 2022 will be the amount of the loan, instead of an amount equal to 120 per cent of the loan.

The loan fee exemption measure was initially inserted into HESA as a COVID-19 relief measure, and this extension continues this relief entitlement until the end of 2022. This measure is intended to encourage more students to consider studying courses using FEE-HELP loans during the economic challenges caused by the COVID-19 pandemic.

New Zealand citizens’ eligibility requirements for HECS-HELP and FEE-HELP

Schedule 3 to the Bill amends provisions in HESA relating to New Zealand citizens’ citizenship and residency eligibility requirements for HECS-HELP and FEE-HELP. These amendments are intended to provide consistency with existing citizenship and residency requirements for New Zealand citizens to determine their eligibility for a Commonwealth supported place. The amendments will require that New Zealand citizens be resident in Australia for the duration of a unit of study in order to be eligible for HECS-HELP and FEE-HELP. This will ensure that eligible New Zealand citizens will be treated consistently across all Commonwealth supported programs for higher education.

Up-front payment discount

Schedule 4 to the Bill amends provisions in HESA that provide students who are eligible for HECS-HELP assistance with a 10 per cent discount when they pay a portion of their student contribution for a unit of study to their provider up-front. The amendments in Schedule 4 remove this up-front payment discount to ensure that all students are charged the same student contribution amount, regardless of their ability to pay their fees up-front.

FINANCIAL IMPACT STATEMENT

The Bill is expected to lead to revenue gain.

The FEE-HELP loan fee exemption extension is estimated to have a cost of $81.3 million in fiscal balance terms over the period 2021-22 to 2025-26 and an underlying cash impact of $0.6 million over the same period.

The FEE-HELP component of the microcredentials measure is estimated to have a cost of $5.2 million in fiscal balance terms over the period 2021-22 to 2025-26 and an underlying cash impact of $0.0 million over the same period.

The cessation of the HECS-HELP discount measure is estimated to provide a saving of $138.1 million in fiscal balance terms over the period 2022-23 to 2025-26 and an underlying positive cash impact of $144.1 million over the same period.

Other measures will not have a financial impact.

CONSULTATION

Higher education providers have requested the amendments to the student identifier requirements, in various communications with the department, in order to address difficulties they have had in complying with their reporting requirements under HESA. The amendments made in Part 1 of Schedule 1 to the Bill have been made in response to the feedback from higher education providers.

The cessation of the 10 per cent up-front discount for students paying up to 90 per cent of their student contribution amount is an election commitment that will provide equity for students.

TEQSA has been consulted in relation to the minor change to the TEQSA Act and are supportive of the amendments.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Education Legislation Amendment (2022 Measures No. 1) Bill 2022

The Education Legislation Amendment (2022 Measures No. 1) Bill 2022 (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 Education Legislation Amendment (2022 Measures No. 1) Bill 2022 (the Bill) amends the Higher Education Support Act 2003 (HESA) and also makes minor amendments to the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act).

HESA is the main piece of legislation governing Commonwealth funding of higher education in Australia. HESA facilitates the provision of Commonwealth financial support to higher education providers through Commonwealth grants and provides loans to higher education students to cover their tuition and other fees.

The TEQSA Act establishes and governs the Tertiary Education Quality and Standards Agency (TEQSA), which regulates the higher education sector. The TEQSA Act provides for the regulation of the sector via a standards-based quality framework, including matters such as registration of providers and the accreditation of courses, and also addresses academic cheating, student protection and student access to information.

The Bill makes amendments to:

·          amend the student identifier requirements for a person’s eligibility to receive Commonwealth assistance;

·          clarify the operation of the student learning entitlement provisions in respect of enabling courses (as defined in Schedule 1 of HESA);

·          provide that domestic students undertaking a microcredential course (as defined in item 16 of Schedule 1 to the Bill) are eligible for FEE-HELP;

·          clarify the operation of certain provisions and improve and update the operation of HESA and the TEQSA Act;

·          reduce the amount of FEE-HELP debt incurred by students undertaking a unit of study in 2022 (FEE-HELP loan fee exemption);

·          provide that New Zealand citizens are eligible for HECS-HELP and FEE-HELP only if they are resident in Australia for the duration of the unit; and

·          remove a 10 per cent discount on up-front payments made by HECS-HELP students.

Human rights implications

The Bill engages the following rights:

·          the right to education - Article 13 of the ICESCR

·          the right to privacy - Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

Article 13: 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, and provides that secondary education in its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means.

Part 1 of Schedule 1 to the Bill promotes the right to education by strengthening the student identifier requirements under HESA by improving the administration of Australia’s tertiary education and training services. A robust student identifier system allows for accurate data collection and analysis in relation to Australia’s higher education sector as students increasingly engage in lifelong learning and access a range of opportunities from both the vocational education and training and higher education sectors to obtain a wide range of skills, capabilities and knowledge. As such, amendments to strengthen the student identifier system promotes the right to education by strengthening and ensuring the ongoing quality of Australia’s higher education sector.

Part 3 of Schedule 1 to the Bill promotes the right to education by allowing domestic students undertaking a unit that is part of a microcredential course to be eligible for FEE-HELP. This will encourage student interest in microcredential courses, incentivising providers and industry to develop and deliver courses in the microcredential pilot. The aim of the microcredential pilot is to provide the opportunity for a diverse range of Australian tertiary education institutions to develop and deliver Australian microcredentials that are learner-centred, meet industry standards and address critical Australian skills needs. Expanding eligibility for FEE-HELP loans to microcredentials increases access to flexible higher education options for populations who find current higher education offerings not suited to their needs, such as individuals with work, health or family commitments that preclude long periods of study.

Schedule 4 to the Bill removes the 10 per cent discount on up-front payments made by HECS-HELP students. While this measure may be perceived as restricting access to education as it increases the student contribution amount paid by an up-front paying student, this is not the case as students affected by this change are still able to defer their student contribution amounts through the HELP scheme and continue to access higher education. This measure ensures that all students are provided equal access to higher education, as it ensures that students choosing to defer their student contribution through the HELP scheme are not required to pay higher student contribution amounts than students choosing to pay their student contribution amount up-front.

This Bill is compatible with the right to education.

Article 17: Right to Privacy

The Bill engages the right to privacy, which is set out in Article 17 of the ICCPR. Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour and reputation and that everyone has the right to the protection of the law against such interference or attacks.

Part 1 of Schedule 1 to the Bill includes the requirement for students to provide their personal information (in the form of their unique student identifier (USI)) to their higher education provider and the Secretary. USIs are already provided to both higher education providers and the Secretary through the request for Commonwealth assistance and through higher education providers’ own administrative processes. The amendment to Part 1 of Schedule 1 enshrines the current practice and links a student’s provision of their student identifier to eligibility for Commonwealth assistance. This provides clear authority under law for current administrative practice.

While the amendment to HESA in Part 1 of Schedule 1 will allow for higher education providers and the Secretary to collect students’ personal information (in the form of their USI), HESA provides safeguards and limitations around the use of personal information collected under HESA. Specifically, Division 179 of Part 5-4 of HESA protects the use and disclosure of personal information obtained and created under the Act, providing a safeguard against improper use of personal information.

The Bill is compatible with and promotes the right to privacy by ensuring that appropriate safeguards and limitations apply to persons who use and disclose personal information collected under the amendments made by Bill.

Conclusion

The Bill is compatible with human rights because it promotes the right to education and does not further impact the right to privacy.  

Minister for Education, the Hon Jason Clare MP

 



EDUCATION LEGISLATION AMENDMENT (2022 MEASURES NO. 1) BILL 2022

NOTES ON CLAUSES

Clause 1: Short title

1.       This provision specifies the short title of the Act for this Bill as the Education Legislation Amendment (2022 Measures No. 1) Act 2022 , which is how it is to be cited.

Clause 2: Commencement

2.       The table in this clause sets out the commencement date for the provisions in the Bill once it is enacted. This table provides that:

·          Sections 1 to 3 and anything in the Act not elsewhere covered by the table, and Schedule 1, commence on the day after the Act receives the Royal Assent;

·          Schedule 2, which deals with an extension of the current FEE-HELP loan fee exemption, commences retrospectively on 1 January 2022. The current loan fee exemption period ended on 31 December 2021 and the Government's policy is to extend the loan fee exemption period to 31 December 2022. To ensure that no students who received a FEE-HELP loan for a unit of study with a census date between 1 January 2022 and the commencement date of the Bill are disadvantaged, Schedule 2 of the Bill will commence from 1 January 2022. This is a beneficial measure for students as it will mean that eligible students will enjoy reduced FEE-HELP debts. There are not likely to be any persons who are detrimentally affected by the retrospective commencement or application of this measure;

·          Schedule 3, which deals with New Zealand citizens’ citizenship and residency eligibility requirements for HECS-HELP and FEE-HELP entitlement, commences on 1 January 2023. The amendments are intended to provide consistency with existing citizenship and residency requirements for New Zealand citizens which apply to determining their eligibility for a Commonwealth supported place and are proposed to commence at the beginning of the next full academic year; and

·          Schedule 4, which deals with the removal of the 10 per cent discount on up-front payments made by HECS-HELP students, commences on 1 January 2023 (if the Act receives the Royal Assent before 31 December 2022) or immediately after the commencement of Schedule 1 of the Act (if the Act receives the Royal Assent on or after 31 December 2022).

Clause 3: Schedules

3.       This clause gives legal effect to the Schedules by providing 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.



 

Sc hedule 1— Amendments commencing day after Royal Assent

Part 1— Student identifier requirements

Higher Education Support Act 2003

4.       The purpose of this Part is to amend provisions in the Higher Education Support Act 2003 (HESA) to provide new student identifier requirements that strengthen student identifier reporting arrangements. The new student identifier requirements require that students both have a student identifier, and give their student identifier to their higher education provider and the Secretary by a specified time, to be eligible for Commonwealth assistance.

5.       The amendments are intended to offer certainty and clarity to higher education providers and students regarding their responsibilities under the legislation with respect to student identifier requirements, and to assist higher education providers in assessing students for eligibility for Commonwealth assistance.

Items 1 to 3: Paragraph 36-10(1)(f); Before subsection 36-10(2); After subsection 36-10(2B)

6.       Section 36-10 of HESA sets out the circumstances in which a higher education provider must not advise a person that they are a Commonwealth supported student (a Commonwealth supported student benefits from the Commonwealth Grants Scheme set out in Part 2-2 of HESA and is able to receive HECS-HELP assistance under HESA).

7.       Paragraph 36-10(1)(f) currently provides that a higher education provider must not advise a person that they are a Commonwealth supported student unless (if the census date for the unit is on or after 1 January 2021 and before 1 January 2023 and the student commenced the course of study on or after 1 January 2021 or the census date for the unit is on or after 1 January 2023) the person has a student identifier immediately before the census date. However, there has been no clear requirement for students to provide their student identifier to a higher education provider or the Secretary.

8.       Item 1 amends paragraph 36-10(1)(f) to remove the requirement that the person has a student identifier immediately before the census date, and replaces it with the requirement that the person meets the new student identifier requirements set out in subsection 36-10(2C).

9.       Item 2 inserts a heading before subsection 36-10(2) that provides that this subsection will deal with when a person meets the citizenship and residency requirements for the purposes of advising if a person is a Commonwealth supported student (to distinguish those requirements from the new student identifier requirements).

10.   Item 3 inserts new subsection 36-10(2C), which provides when a person meets the student identifier requirements, and new subsection 36-10(2D), which states how notifications under paragraph (2C)(b) may be provided.

11.   Subsection 36-10(2C) provides that a person meets the student identifier requirements for being a Commonwealth supported student if they have a student identifier immediately before the census date and, before the census date, the person notifies the student identifier to an appropriate officer of the higher education provider, and the Secretary.

12.   Subsection 36-10(2D) provides that a person’s notification of their student identifier under paragraph (2C)(b) (to the relevant provider and the Secretary) may be included in a request for Commonwealth assistance that the person has given to the higher education provider in relation to the unit of study for which the assistance is sought, or the course of study of which the unit forms a part, or any other unit of study forming part of that course (noting that request for Commonwealth assistance forms allow for collection of this information).

Items 4 and 5: Paragraph 104-1(1)(ga); At the end of section 104-1

13.   Section 104-1 sets out a student’s entitlement to FEE-HELP assistance for a unit of study.

14.   Paragraph 104-1(1)(ga) currently provides that a student must have a student identifier before the census date of a unit of study to be entitled to FEE-HELP assistance where:

·          the unit of study is part of a course of study that the student commenced on or after 1 January 2021, and the census date for the unit is on or after 1 January 2021 and before 1 January 2023; or

·          the unit of study:

                                                              i.       is or is to be undertaken as part of a course of study;

                                                             ii.       is a unit of study access to which was provided by Open Universities Australia; or

                                                           iii.       is part of a bridging course for overseas-trained professionals; and

the census date is on or after 1 January 2023.

There is no requirement for the student to provide their student identifier to the higher education provider or the Secretary.

15.   Item 4 removes the requirement in paragraph 104-1(1)(ga) that a student must have a student identifier before the census date, and substitutes it with the requirement that the student meet the student identifier requirements as set out in new subsection 104-1(5).

16.   Item 5 inserts new subsection 104-1(5), which sets out when a student meets the student identifier requirements, and new subsection 104-1(6) which states how notifications under paragraph (5)(b) may be provided.

17.   New subsection 104-1(5) provides that a student meets the student identifier requirements under this subsection if the student has a student identifier immediately before the census date and, before the census date, the student notifies the student’s student identifier to an appropriate officer of the higher education provider (as defined under section 187-2 of the Act) and the Secretary.

18.   New subsection 104-1(6) provides that a person’s notification of their student identifier under paragraph (5)(b) (to the relevant provider and the Secretary) may be included in a request for Commonwealth assistance that the person has given to the higher education provider in relation to the unit of study for which the assistance is sought, the course of study of which the unit forms a part, or any other unit of study forming part of that course (noting that request for Commonwealth assistance forms allow for collection of this information).

Items 6 and 7:  Paragraph 118-1(1)(hb); After section 118-10

19.   Section 118-1 sets out a student’s entitlement to OS-HELP assistance (assistance that is available for students for periods during which they are undertaking study overseas). Paragraph 118-1(1)(hb) currently provides that a student is entitled to OS-HELP assistance if the student made the application for OS-HELP assistance on or after 1 January 2021, and the student has a student identifier immediately before the student made the application. There is no requirement for a student to provide their student identifier to their higher education provider or the Secretary.

20.   Item 6 amends paragraph 118-1(1)(hb) to remove the requirement that the student must have a student identifier immediately before the student made the application, and substitutes it with the requirement that the student meet the student identifier requirements under section 118-12.

21.   Item 7 inserts a new section 118-12, which sets out the student identifier requirements for entitlement to OS-HELP. Subsection 118-12(1) provides that the student identifier requirements for OS-HELP assistance are that:

·          the student had a student identifier immediately before the student made the application for OS-HELP assistance; and

·          before making, or at the time of making, the application, the student notified the student’s student identifier to an appropriate officer of the higher education provider and the Secretary.

22.   Subsection 118-12(2) provides that a student’s notification of their student identifier under paragraph (1)(b) (to the relevant provider and the Secretary) may be included in a request for Commonwealth assistance that the person has given to the higher education provider in relation to the unit of study for which the assistance is sought, the course of study of which the unit forms a part, or any other unit of study forming part of that course (noting that request for Commonwealth assistance forms allow for collection of this information).

Items 8 and 9:  Paragraph 126-1(1)(e); At the end of Division 126

23.   Section 126-1 sets out a student’s entitlement to SA-HELP assistance. Paragraph 126-1(1)(e) currently provides that a student is entitled to SA-HELP assistance for a student services and amenities fee imposed on the student for a period by a higher education provider if the day on which the fee is payable is on or after 1 January 2023 and the student has a student identifier immediately before the day on which the fee is payable. There is no requirement for a student to provide their student identifier to their higher education provider or the Secretary.

24.   Item 8 amends paragraph 126-1(1)(e) to remove the requirement that the student must have a student identifier immediately before the day on which the fee is payable and substitutes it with the requirement that the student meet the student identifier requirements under new section 126-10.

25.   Item 9 inserts a new section 126-10, which sets out the student identifier requirements for entitlement to SA-HELP. Subsection 126-10(1) provides that the student identifier requirements for SA-HELP assistance are met in relation to a student services and amenities fee imposed on the student by a higher education provider if:

·          the student has a student identifier immediately before the day on which the fee is payable; and

·          before making, or at the time of making, the request for Commonwealth assistance in relation to the student services and amenities fee, the student notifies the student’s student identifier to an appropriate officer of the higher education provider and the Secretary.

26.   Subsection 126-10(2) provides that a student’s notification of their student identifier under paragraph (1)(b) may be included in a request for Commonwealth assistance by the student referred to in paragraph 126-1(1)(d) (noting that request for Commonwealth assistance forms allow for collection of this information).

Item 10: Application provisions

27.   Item 10 provides for the application of the amendments made to sections 36-10, 104-1, 118-1 and 126-1 of HESA and the application of the insertion of new sections 118-12 and 126-10 into HESA. The application provision reflects the prospective nature of the measure and the intention for the amendments to apply to entitlements to HELP assistance for units of study and requests for assistance from commencement.

28.   Subitem 10(1) provides that the amendments to section 36-10 made by this Part apply in relation to any unit of study with a census date that is on or after the day this Part commences (whether the unit of study is part of a course commenced before, on or after that day).

29.   Subitem 10(2) provides that the amendments to section 104-1 made by this Part apply in relation to determining entitlement to FEE-HELP assistance for units of study with a census date that is on or after the day this Part commences.

30.   Subitem 10(3) provides that the amendment of section 118-1 made by this Part and the insertion of new section 118-12 by this Part apply in relation to applications for receipt of OS-HELP assistance that are made on or after the day this Part commences.

31.   Subitem 10(4) provides that the amendment of section 126-1 made by this Part and the insertion of new section 126-10 by this Part apply in relation to requests for Commonwealth assistance in relation to a student services and amenities fee that are made on or after the day this Part commences.

Part 2 - Student learning entitlement—enabling courses

Higher Education Support Act 2003

32.   The purpose of this Part is to make a minor amendment to section 76-1 of HESA to provide that a person’s Student Learning Entitlement (SLE) is not required to be reduced for units of study undertaken as part of an enabling course. The SLE operates as a limit on the amount of Commonwealth assistance (specifically HECS-HELP assistance) a person can receive when studying in a Commonwealth supported place (CSP). A person’s SLE amount is reduced as the person undertakes units of study as a Commonwealth supported student. Enabling courses are not intended to fall within a student’s period of ‘learning entitlement’ because of their nature as enabling entry into a substantive course, and so these amendments clarify the original intention for the operation of SLE in respect of other substantive courses only.

Item 11: Section 70-1

33.   Item 11 omits and substitutes the simplified outline of Part 3-1 in section 70-1 of HESA. The substituted simplified outline clarifies that a unit of study undertaken as part of an enabling course does not reduce a person’s SLE amount. The additional text inserted into the summary as a result of this amendment is consequential to the amendment made to section 76-1 of HESA in item 12.

Item 12: Paragraph 76-1(1)(a)

34.   Section 76-1 of HESA deals with the reduction of a person’s SLE amount, including setting out in subsection 76-1(1) the circumstances in which a higher education provider must, on the Secretary’s behalf, reduce a person’s SLE amount. Currently, under paragraph 76-1(1)(a), a higher education provider must reduce a person’s SLE amount if the person is enrolled in a unit of study as a part of a course of study with the provider. In clause 1 of Schedule 1 to HESA:

·          ‘course of study’ is defined to include ‘enabling courses’;

·          ‘enabling course’ is defined to mean a course of instruction provided to a person for the purposes of enabling the person to undertake a course leading to a higher education award, but does not include: (a) a course leading to a higher education award; or (b) any course that the Minister determines is not an enabling course for the purposes of HESA.

35.   Item 12 amends paragraph 76-1(1)(a) to exclude enabling courses from the operation of paragraph 76-1(1)(a). The effect of this amendment is that a person’s SLE amount will not be reduced for units of study undertaken as part of an enabling course. This is consistent with paragraph 36-10(1)(d) of HESA, which enables a higher education provider to advise a person that they are a Commonwealth supported student in relation to a unit of study in an enabling course irrespective of whether that unit is covered by the person’s SLE. The policy intention is that the SLE should not impact a person’s ability to study in an enabling course as a Commonwealth supported student and, therefore, the person’s SLE amount should not be reduced for units of study undertaken as part of an enabling course.

Item 13: Application provision

36.   The application provision in item 13 provides that the amendment in section 76-1 in item 12 applies in relation to an enabling course whether the course is provided before or after the commencement of Part 2 of Schedule 1 to the Bill. This application provision ensures that the amendment applies broadly and beneficially to ensure that enabling courses do not reduce a person’s student learning entitlement, whether or not the enabling course was provided before or after commencement.

Part 3—Microcredential courses

Higher Education Support Act 2003

37.   This Part contains amendments to extend FEE-HELP eligibility under HESA to ‘microcredential courses’ offered under a microcredential pilot program. Microcredential courses are short courses offered by higher education providers for a range of vocational and technical purposes, and which, prior to these amendments, did not fall within the definition of ‘higher education course’ with the result that a person was not entitled to FEE-HELP assistance for fees paid for microcredential courses.

38.   By offering Commonwealth assistance to participating students, the Government incentivises providers to participate in its microcredential pilot program. The aim of the pilot is to provide the opportunity for a diverse range of Australian tertiary education institutions to develop and deliver Australian microcredentials that are learner-centred, meet industry standards and address critical Australian skills needs. Providers who wish to take part in the microcredential pilot program submit applications to the Commonwealth to demonstrate their courses offer value for money and fulfill the aims of the program; as such, much of the detail about what courses are included within the definition of ‘microcredential course’ will be set out in the FEE-HELP Guidelines.

39.   The proposed amendments to extend FEE-HELP eligibility to microcredential courses are not intended to support extending FEE-HELP eligibility to all microcredential courses but to enable the Commonwealth to specify the detail of which microcredential courses will be supported under the time-limited microcredentials pilot program.

Items 14 to 16: After subparagraph 104-10(1)(b)(i); Subclause 1(1) of Schedule 1 (after paragraph c of the definition of course of study ); Subclause 1(1) of Schedule 1

40.   Item 14 amends section 104-10 of HESA, which deals with eligibility for

FEE-HELP assistance. This item inserts new subparagraph 104-10(1)(b)(i) which ensures that eligibility is extended to courses of study which are microcredential courses. Item 15 amends the definition of ‘course of study’ and item 16 inserts a new definition of ‘microcredential course’, both of which will be contained in clause 1 of Schedule 1 to HESA (the definitions provision). The term ‘microcredential course’ is defined as a course that consists of units of study (within the existing meaning of HESA) where the course meets the requirements specified in the FEE-HELP Guidelines.

41.   The ability to specify the detail about what courses are ‘microcredential courses’ in these Guidelines is intended to ensure that the Commonwealth can effectively pilot the measure, noting the precise details of the microcredential courses and providers to be included in the pilot are still being determined.

42.   The FEE-HELP Guidelines will be a disallowable legislative instrument. The flexibility to include detail about what courses are ‘microcredential courses’ in the Guidelines is required because the Commonwealth intends to run an application process to identify appropriate microcredentials to form part of the pilot. It is necessary and appropriate to set out what courses are ‘microcredential courses’ in the Guidelines because the Commonwealth will, as part of the pilot, work with the higher education sector and other stakeholders, including industry, on what types of microcredential courses should be supported by FEE-HELP. The capacity to specify the detail of what courses and providers are supported in the Guidelines will allow the Commonwealth to respond in a timely and effective way to stakeholder feedback and issues that may arise as the pilot program is further developed and implemented.

Part 4—Other amendments

43.   The purpose of this Part is to make minor technical amendments to clarify the operation of paragraphs 36-24B(2)(b), 36-24BB(2)(b) and 36-24BC(2)(b) in HESA, which require a higher education provider to repay amounts to the Commonwealth in certain circumstances (including where a payment was made to a provider in relation to a student in circumstances where the student was not entitled to HELP assistance). The amendments are intended to improve the way in which the amount to be repaid to the Commonwealth is described, and do not change their substantive operation.

44.   This Part also makes minor technical amendment to the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act), specifically : (a) subsection 26A(7) to clarify how the Up-front Payments Guidelines may specify information or documents that registered higher education providers must keep records of or give to the Secretary; and (b) subsection 26A(8) to clarify the information or documents to which the requirements in that provision relate to.

Higher Education Support Act 2003

Item 17: Paragraph 36-24B(2)(b)

45.   Section 36-24B of HESA applies to a person if a higher education provider cancels the person’s enrolment in a unit of study under subsection 193-5(1) of HESA in circumstances where the person does not have a tax file number, which in turn affect a person’s entitlement to HECS-HELP assistance for that unit of study under section 90-1 of HESA. Currently, paragraph 36-24B(2)(b) of HESA requires the higher education provider to pay to the Commonwealth “an amount equal to any HECS-HELP assistance to which the person was entitled”, however this language does not properly accord with the premise for the operation of section 36-24B.

46.   Item 17 repeals and substitutes paragraph 36-24B(2)(b) of HESA. Substituted paragraph 36-24B(2)(b) specifies that a provider is required to pay to the Commonwealth “an amount equal to the amount (if any) that was paid to the provider under section 96-1, 96-2 or 96-3” of HESA. These provisions set out how amounts of HECS-HELP assistance are to be paid. This amendment does not represent a substantive change to the operation of paragraph 36-24B(2)(b), but rather it is intended to improve the way in which the amount to be repaid to the Commonwealth is described.

Item 18: Paragraph 36-24BB(2)(b)

47.   Section 36-24BB applies to a person if the person’s HELP balance is re-credited with an amount relating to HECS-HELP assistance for a unit of study under section 97-45 of HESA. Under section 97-45, a provider must re-credit a person’s HELP balance with an amount equal to the amounts of HECS-HELP assistance that the person received for a unit of study if the provider completes any part of the request for Commonwealth assistance in relation to the unit that the person is required to complete. If this occurs, the person may not be entitled to HECS-HELP assistance under section 90-1 of HESA. Currently, paragraph 36-24BB(2)(b) requires the provider to pay to the Commonwealth “an amount equal to any HECS-HELP assistance to which the person was entitled”, however this language does not properly accord with the premise for the operation of section 36-24BB.

48.   Item 18 repeals and substitutes paragraph 36-24BB(2)(b). Substituted paragraph

36-24BB(2)(b) requires the provider to pay to the Commonwealth “an amount equal to the amount (if any) that was paid to the provider under section 96-1, 96-2 or 96-3” of HESA. This amendment does not represent a substantive change to the operation of paragraph 36-24BB(2)(b), but rather it is intended to improve the way in which the amount to be repaid to the Commonwealth is described.

Item 19: Paragraph 36-24BC(2)(b)

49.   Section 36-24BC applies to a person if the person’s HELP balance is re-credited with an amount relating to HECS-HELP assistance for a unit of study under section 97-50 of HESA. Section 97-50 requires a person’s HELP balance to be re-credited with an amount equal to the amount of HECS-HELP assistance that the person received for a unit of study if the higher education provider or the Secretary is satisfied that the person was not entitled to receive HECS-HELP assistance for the unit of study. Currently, paragraph 36-24BC(2)(b) requires the provider to pay to the Commonwealth “an amount equal to any HECS-HELP assistance to which the person was entitled”.

50.   Item 19 repeals and substitutes paragraph 36-24BC(2)(b). Substituted paragraph

36-24BC(2)(b) requires the provider to pay to the Commonwealth “an amount equal to the amount (if any) that was paid to the provider under section 96-1, 96-2 or 96-3” of HESA. This amendment does not represent a substantive change to the operation of paragraph 36-24BB(2)(b), but rather it is intended to improve the way in which the amount to be repaid to the Commonwealth is described.

Items 20 and 21: Subsection 110-5(1); Subsection 110-5(2)

51.   Subsection 110-5(1) of HESA requires a higher education provider to pay to the Commonwealth an amount equal to “the amount of FEE-HELP assistance to which the person was entitled for a unit of study” if the person’s HELP balance is re-credited with an amount relating to FEE-HELP assistance for the unit under:

·          subsection 104-25(1) of HESA, where special circumstances apply to the person; or

·          subsection 104-27(1) of HESA, in circumstances where the person does not have a tax file number; or

·          section 104-42 of HESA, in circumstances where the provider defaults and there are no suitable replacement units/courses for the person, or the person elects to have their HELP balance re-credited; or

·          section 104-43 of HESA, where the Secretary has determined that the student is not a genuine student in relation to the unit; or

·          section 104-44 of HESA, where the higher education provider completes any part of the request for Commonwealth assistance in relation to the unit that the student is required to complete.

52.   Subsection 110-5(2) of HESA requires Open Universities Australia to pay to the Commonwealth an amount equal to “the amount of FEE-HELP assistance to which a person was entitled for a unit of study” where the person’s HELP-balance is re-credited with an amount relating to FEE-HELP assistance for a unit of study under:

·          subsection 104-25(2) of HESA, where special circumstances apply to the person; or

·          subsection 104-27(2) of HESA, in circumstances where the person does not have a tax file number.

53.   Item 20 amends subsection 110-5(1) by replacing the words “the amount of FEE-HELP assistance to which the person was entitled for a unit of study” with the words “the amount (if any) that was paid to the provider for the unit under subsection 110-1(1)”. Subsection 110-1(1) specifies how amounts of FEE-HELP assistance are to be paid. Item 21 amends subsection 110-5(2) in a similar way.

54.   The amendments made by items 20 and 21 are not substantive, but rather are intended to improve the way in which the amount to be repaid to the Commonwealth is described.

Tertiary Education Quality and Standards Agency Act 2011

Items 22 and 23: Subsection 26A(7); Subsection 26A(8)

55.   Section 26A of the TEQSA Act deals with compliance with the tuition protection requirements (as defined in subsection 26A(2)) as a condition of registration for a registered higher education provider to which Part 5A of that Act applies.

56.   Subsection 26A(7) provides that the Up-front Payments Guidelines (made by the Minister under section 26B of the TEQSA Act) may set out specified information and documents that a registered higher education provider must: (a) keep records of for the purposes of the tuition protection requirements; and (b) give to the Secretary in accordance with subsection 26A(8).

57.   In turn, subsection 26A(8) provides that the information and documents mentioned in subsection 26A(7) must be given to the Secretary: (a) within the period specified by the Secretary; and (b) in the manner and form approved by the Secretary.

58.   Item 22 repeals and substitutes subsection 26A(7) to clarify that the Up-front Payments Guidelines may specify either or both of the following: (a) information or documents that a registered higher education provider must keep records of for the purposes of the tuition protection requirements; (b) information or documents that a registered higher education provider must give to the Secretary in accordance with subsection 26A(8).

59.   Item 23 amends subsection 26A(8) by replacing the reference to “subsection (7)” with a specific reference to “paragraph (7)(b)”. This identifies with more specificity the information and documents that are subject to the requirements in subsection 26A(8).



 

Schedule 2—Amendments commencing 1 January 2022

Higher Education Support Act 2003

60.   Schedule 2 to the Bill contains amendments to section 137-10 of HESA to extend for a further period, ending on 31 December 2022, the exemption from the loan fee associated with FEE-HELP loans for units of study provided by non-Table B providers with census dates within the eligible period. As a result, the requirement to pay the loan fee will not apply for FEE-HELP loans relating to units of study with census dates between 1 April 2020 and 31 December 2022 inclusive (noting FEE-HELP assistance for a unit of study provided by a Table B provider remains unaffected by this amendment).

61.   The loan fee exemption measure is a COVID-19 relief measure and will provide further relief to students until the end of 2022. Providing an exemption from loan fees is intended to operate as an incentive for undergraduate students accessing FEE-HELP loans to continue or commence study in 2022. This will in turn support higher education providers who have been financially affected by COVID-19.

62.   In line with the previous Government’s policy in relation to reducing the loan fee, following the end of the exemption period from 1 January 2023, the amount of the FEE-HELP loan fee for a unit of study that forms part of an undergraduate course of study that is not provided by a Table B provider will be 20 per cent.

63.   The current loan fee exemption period ended on 31 December 2021 and the Government’s policy is to extend the loan fee exemption period to 31 December 2022. To ensure that no students who received a FEE-HELP loan for a unit of study with a census date between 1 January 2022 and the commencement date of this Schedule are disadvantaged, Schedule 2 to the Bill will commence retrospectively from 1 January 2022.

64.   This is a beneficial measure for students as it will mean that eligible students will enjoy reduced FEE-HELP debts. There are not likely to be any persons who are detrimentally affected by the retrospective commencement or application of this measure.

Item 1: Subparagraph 137-10(2)(b)(i)

65.   Paragraph 137-10(2)(b) of HESA sets out the amount of a person’s FEE-HELP debt for loans relating to FEE-HELP assistance for units of study that are part of an undergraduate course of study provided by non-Table B higher education providers. Currently, the amount of a person’s FEE-HELP debt is:

·          for units of study with a census date between 1 April 2020 and 31 December 2021 - the amount of the loan (effectively, this represents an exemption from the requirement to pay a loan fee);

·          for units of study with a census date on or after 1 January 2022 - an amount equal to 120 per cent of the loan (that is, a 20 per cent loan fee);

·          otherwise, an amount equal to 125 per cent of the loan (a 25 per cent loan fee).

66.   Item 1 amends subparagraph 137-10(2)(b)(i) to replace the date of 31 December 2021 with the date of 31 December 2022. This amendment has the effect of extending the loan fee exemption to units of study with census dates between 1 January 2022 and 31 December 2022.

Item 2: Subparagraph 137-10(2)(b)(ia)

67.   In accordance with the amendment to subparagraph 137-10(2)(b)(i), item 2 amends subparagraph 137-10(2)(b)(ia) to replace the date of 1 January 2022 with the date of 1 January 2023.

68.   Accordingly, for units of study that are part of an undergraduate course of study provided by higher education providers (other than Table B providers) with a census date on or after 1 January 2023, the amount of a person’s FEE - HELP debt will be 120 per cent of the loan (effectively a 20 per cent loan fee). 



 

Schedule 3—Amendments commencing 1 January 2023

Higher Education Support Act 2003

69.   Schedule 3 to the Bill amends provisions in HESA relating to New Zealand citizens’ citizenship and residency eligibility requirements for HECS-HELP and FEE-HELP entitlement. These amendments are intended to provide consistency with existing citizenship and residency requirements for New Zealand citizens that apply to determining their eligibility for a Commonwealth supported place.

Items 1 to 4: Paragraph 90-5(2A)(a); After subsection 90-5(2A); Paragraph 104-5(2A)(a); After subsection 104-5(2A)

70.   Items 1 to 4 amend sections 90-5 and 104-5 of HESA, which deal with HECS-HELP and

FEE-HELP entitlement. These items will amend these sections to require that New Zealand citizens
be resident in Australia for the duration of a unit of study in order to be eligible for HECS-HELP and FEE-HELP. These amendments will ensure that eligible New Zealand citizens will be treated consistently across all types of Commonwealth assistance for higher education. Accordingly, in determining whether a student who is a New Zealand citizen will be resident in Australia for a duration of the unit of study, any of the following periods are to be disregarded:

·          any period of residence outside Australia that cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of that unit; or

·          any period of residence outside Australia that is required for the purpose of completing a requirement of that unit.

Item 5: Application provisions

71.   Item 5 clarifies that the amendments made to sections 90-5 and 104-5 by items 1 to 4 apply in relation to determining a person’s entitlement to HECS-HELP and FEE-HELP assistance for units of study with a census date that is on or after 1 January 2023.



 

Schedule 4—Other amendments

Higher Education Support Act 2003

72.   Schedule 4 of the Bill amends provisions in HESA relating to the discount on up-front payments made by HECS-HELP students. These amendments remove the 10 per cent discount on up-front payments and make some necessary consequential changes to HESA to reflect the removal of the discount.

Items 1 to 3: Paragraph 36-24B(2)(b); Paragraph 36-24BB (2)(b); Paragraph 36-24BC(2)(b)

73.   Items 1 to 3 amend paragraphs in HESA that deal with a provider repaying amounts to the Commonwealth in certain circumstances and specifically how much the provider must repay to the Commonwealth. Following amendments to sections 36-24B, 36-24BB and 36-24BC made by Part 4 of Schedule 1 to this Bill, the paragraphs will require that a provider must repay to the Commonwealth an amount equal to the amount that was paid to the provider for the unit under sections 96-1, 96-2 or 96-3. As sections 96-2 and 96-3 are to be repealed by item 11 of this Schedule, items 1 to 3 amend paragraphs 36-24B(2)(b), 36-24BB(2)(b) and 36-24BC(2)(b) to remove references to sections 96-2 and 96-3.

Item 4: Section 36-50

74.   Item 4 repeals section 36-50, which specifies that a provider must not accept, from a person who is enrolled in a unit of study with the provider and is entitled to HECS-HELP assistance for the unit, up-front payments in relation to the unit totalling more than 90 per cent of the person’s student contribution amount for the unit. As a result of changes made in this Schedule, a student will need to pay 100 per cent of their student contribution amount, whether they pay up-front or defer it through the HELP system. As a result, providers must be able to accept up-front payments totalling 100 per cent of the person’s student contribution amount for a unit of study. 

Item 5: Paragraph 79-1(1)(e)

75.   Item 5 amends paragraph 79-1(1)(e) to substitute the reference of “90%” to “100%”. Section 79-1 currently provides for the re-crediting of a person’s Student Learning Entitlement (SLE) amount in circumstances where a person’s HELP balance is not re-credited (as they have paid all of their student contribution up-front) and special circumstances apply to them. Item 5 amends paragraph 79-1(1)(e) to reflect that a person is only entitled to have their SLE amount re-credited under section 79-1 where they have paid 100% of their student contribution amount up-front.

Item 6: Paragraph 90-1(f)

76.   Item 6 amends paragraph 90-1(f) with a new paragraph, which provides that a person is eligible for HECS-HELP assistance for a unit of study only if they meet the tax file number requirements under section 187-1.

Items 7 and 8: Subsection 93-15(1); Subsection 93-15(3)

77.   Items 7 and 8 amend section 93-15 to reflect the removal of the up-front payment discount. Item 7 makes a minor amendment to subsection 93-15(1) to clarify that an ‘up-front payment’, as defined under HESA, can be for all or part of the student’s student contribution amount. This is because, as a result of removing the up-front payment discount, students paying up-front are able to pay 100 per cent of their student contribution amount.

78.   Item 8 repeals subsection 93-15(3), including the notes under this subsection. This subsection provided that a payment made in relation to a unit of study is not an ‘up-front payment’ in relation to the unit if the payment, or, if other such payments have already been made in relation to the unit, the sum of the payment and all of those payments, exceeds 90 per cent of the person’s student contribution amount for the unit. This subsection is removed as, due to the removal of the up-front discount, payments made in relation to a unit of study should be an up-front payment even where the sum of the payment or other payments exceeds 90 per cent of the student contribution amount.

Items 9 and 10: Section 96-1 (heading); Section 96-1

79.   Items 9 and 10 amend section 96-1 to clarify that this section will now apply to all students who are entitled to an amount of HECS-HELP assistance for a unit of study.

Item 11: Sections 96-2 and 96-3

80.   Item 11 repeals sections 96-2 and 96-3. Section 96-2 provided the arrangements for students who make a partial up-front payment of their student contribution amount. Section 96-2 provided that where a student made an up-front payment to their provider of more than $500 for one or more of their units of study, the Commonwealth would pay the provider 10 per cent of the student’s student contribution amount for the unit or units, and would lend the student, as a HECS-HELP loan, the remainder of the student contribution amount. As the Commonwealth will no longer pay the provider 10 per cent of the student’s student contribution amount when the student makes an up-front payment, section 96-2 has been removed.

81.   Section 96-3 provided the arrangements for students who make a full up-front payment of their student contribution amount for a unit of study. Section 96-3 provided that the Commonwealth must, as a benefit to the student, pay to the provider the amount of the student’s liability to pay the student’s student contribution amount if the student has made an up-front payment, or payments, equal to 90 per cent of the student’s student contribution amount. As the up-front discount is to be removed, the arrangements described in section 96-3 no longer apply.

Item 12: Subsection 137-5(1)

82.   Item 12 amends subsection 137-5(1) to reflect the repeal of section 96-2.

Item 13: Paragraph 193-1(5)(b)

83.   Section 193-1 of HESA specifies the circumstances where a higher education provider must notify a person in writing of how to meet the tax file number requirements in Division 187 of Part 5-5 of HESA.

84.   Subsection 193-1(5) specifies cases where a higher education provider has no obligation to notify a person of the tax file number requirements. The current paragraph 193-1(5)(b) provides that a higher education provider has no obligation to notify a person of the tax file number requirements if the person made one or more up-front payments in relation to the unit totalling 90 per cent of the person’s student contribution for the unit.

85.   Item 13 amends paragraph 193-1(5)(b) to provide that a higher education provider has no obligation to notify a person of the tax file number requirements if the person has made one or more up-front payments in relation to the unit totalling 100 per cent of the person’s student contribution.

Item 14: Paragraph 193-5(1)(d)

86.   Item 14 amends paragraph 193-5(1)(d) to provide that a higher education provider must cancel a person’s enrolment in a unit of study if the person does not have a tax file number and, has not paid, as one or more up-front payments in relation to the unit, their full student contribution amount for the unit.

Item 15: Subclause 1(1) of Schedule 1 (definition of HECS-HELP discount )

87.   Item 15 repeals the definition of ‘HECS-HELP discount’ in clause 1 of Schedule 1 to HESA (the definitions provision).

Item 16: Application of amendments

88.   Item 16 provides that amendments made by Schedule 5 apply in relation to up-front payments made in relation to a unit of study that has a census date on or after the day Schedule 4 commences.