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Higher Education Support Amendment (New Zealand Citizens) Bill 2015

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2013-2014-2015

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

HIGHER EDUCATION SUPPORT AMENDMENT (NEW ZEALAND CITIZENS) BILL 2015

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Kim Carr)



HIGHER EDUCATION SUPPORT AMENDMENT (NEW ZEALAND CITIZENS) BILL 2015

 

OUTLINE

 

The HELP student loan system provides income-contingent loans, repaid through the tax system, to Australian students to pay student contributions for undergraduate courses, tuition fees for other courses and a limited range of other higher education-related expenses. The Bill will allow certain New Zealand citizens who are Special Category Visa holders to be eligible for HELP assistance from 1 January 2016.

 

Schedule 1 amends the citizenship or residency requirements for HELP loans to allow New Zealand citizens who are Special Category Visa holders (as defined by section 32 of the Migration Act 1958 ) to be eligible for HELP, providing they:

·          first entered Australia:

o    as a dependent minor; and

o    at least 10 years before applying for HELP:

§   have been physically present in Australia for at least eight of the previous 10 years at the time of application for HELP; and

§   have been physically present in Australia for at least 18 months out of the last two years at the time of application for HELP; and

·          are otherwise eligible for the loan.

 

The intent is that students who meet these criteria on 1 January 2016 will be eligible for HELP, and also that future cohorts of students who meet the criteria from this date will be eligible.

 

Background

 

Eligibility for the various HELP schemes is currently restricted to Australian citizens and permanent humanitarian visa holders (in addition, permanent visa holders can receive FEE-HELP if they are undertaking a bridging course for overseas trained professionals).

 

Detailed explanation

 

Higher Education Support Act 2003

 

Chapter 3 of the Higher Education Support Act 2003 (HESA) deals with the kinds of HELP assistance that the Commonwealth provides to students (HECS-HELP; FEE-HELP; OS-HELP; and SA- HELP).

 

There are certain eligibility criteria governing access to HELP assistance. This includes citizenship or residency requirements, which restrict access to HELP assistance to the following categories of student:

 

·          Australian citizens;

·          permanent humanitarian visas holders resident in Australia; and

·          permanent visa holders resident in Australia who are undertaking a bridging course for overseas-trained professionals.

 

Division 7 of Schedule 1A to HESA deals with the entitlement to VET FEE-HELP assistance. Again, there are certain eligibility criteria governing access to VET FEE- HELP assistance including requirements that the person be an Australian citizen, or a permanent humanitarian visa holder who will be resident in Australia for the duration of the VET unit of study.

 

This Bill amends these requirements to enable certain New Zealand citizens who are Special Category Visa holders to access HELP assistance and VET FEE-HELP assistance.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.                   Clause 1 provides for the Bill, once enacted, to be cited as the Higher Education Support Amendment (New Zealand Citizens) Act 2015 .

Clause 2: Commencement

2.                   Subclause 2(1) contains a three column table setting out commencement information for provisions in the Bill. Each provision of the Bill specified in column 1 of the table commences (or is taken to have commenced) in accordance with column 2 of the table and any other statement in column 2 has effect according to its terms.

3.                   The table has the effect of providing for the following commencement times:

·            Matters to commence on the day the Act receives the Royal Assent:

o     sections 1 to 3 and anything else in the Act not otherwise covered by the table.

·            Matters to commence on 1 January 2016:

o     Schedule 1.

4.                   A note explains that the commencement times in the table will not be amended should the provisions of this Act be amended by any future Act.

5.                   Subclause 2(2) provides that column 3 of the table is for additional information which may be added to or edited in any published version of the Bill but that information is not part of the Bill.

Clause 3 - Schedules

6.                   Clause 3 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

Higher Education Support Act 2003

Item 1

6.                   Currently, Division 90 of the Higher Education Support Act 2003 (HESA) provides that a student is entitled to HECS-HELP assistance for a unit of study if he or she meets certain criteria, including that the student meets the citizenship or residency requirements in section 90-5. Under subsection 90-5(1), a student will meet the citizenship or residency requirements if he or she is:

·            an Australian citizen; or

·            a permanent humanitarian visa holder who will be resident in Australia for the duration of the unit.

7.                   This item adds new subsections 90-5(2A) and (2B).

8.                   New subsection 90-5(2A) provides that a student will also meet the citizenship or residency requirements for a unit of study if he or she:

·            is a New Zealand citizen; and

·            holds a special category visa under the Migration Act 1958 ; and

·            both first began to be usually resident in Australia at least 10 years before the test day (see new subsection 90-5(2B)) and was a dependent child when he or she first began to be usually resident in Australia; and

·            has been present in Australia for a period or periods totalling 8 out of the last 10 years immediately before the test day; and

·            has been present in Australia for a period or periods totalling 18 months out of the last 2 years immediately before the test day.

9.                   New subsection 90-5(2B) provides that the test day (for the purposes of subsection 90-5(2A)) is the earlier of the following:

·            if the student has previously made a successful request for Commonwealth assistance under Chapter 3 in respect of a unit of study that formed part of the same course of study - the day that the person first made the request; or

·            otherwise - the day when the student made the request for Commonwealth assistance with respect to the unit.

Item 2

10.               This item makes minor consequential renumbering amendments to subsection 90-5.

Item 3

11.               FEE-HELP provides assistance in the form of income-contingent loans to students undertaking domestic fee-paying courses or bridging studies for overseas trained professionals. Currently, Division 104 of the Higher Education Support Act 2003 (HESA) provides that a student is entitled to FEE-HELP assistance for a unit of study if he or she meets certain criteria, including that the student meets the citizenship or residency requirements in section 104-5. Under subsection 104-5(1), a student will meet the citizenship or residency requirements if he or she is:

·            an Australian citizen; or

·            a permanent humanitarian visa holder who will be resident in Australia for the duration of the unit; or

·            a permanent visa holder resident in Australia for the duration of the unit, which is being undertaken (or is to be undertaken) as part of a bridging course for overseas-trained professionals.

12.               This item adds new subsections 104-5(2A) and (2B).

13.               New subsection 104-5(2A) provides that a student will also meet the citizenship or residency requirements for a unit of study if he or she:

·            is a New Zealand citizen; and

·            holds a special category visa under the Migration Act 1958 ; and

·            both first began to be usually resident in Australia at least 10 years before the test day (see new subsection 104-5(2B)) and was a dependent child when he or she first began to be usually resident in Australia; and

·            has been present in Australia for a period or periods totalling 8 out of the last 10 years immediately before the test day; and

·            has been present in Australia for a period or periods totalling 18 months out of the last 2 years immediately before the test day.

14.               New subsection 104-5(2B) provides that the test day (for the purposes of subsection 104-5(2A)) is the earlier of the following:

·            if the student has previously made a successful request for Commonwealth assistance under Chapter 3 in respect of a unit of study that formed part of the same course of study - the day that the person first made the request; or

·            otherwise - the day when the student made the request for Commonwealth assistance with respect to the unit.

Item 4

15.               This item makes minor consequential renumbering amendments to section 104-5.

Items 5

16.               This item makes a minor consequential renumbering amendment to section 118-5.

Item 6

17.               OS-HELP assistance provides assistance to students for periods when they study overseas. Currently, Division 118 of the Higher Education Support Act 2003 (HESA) provides that a student is entitled to OS-HELP assistance for a unit of study if he or she meets certain criteria, including that the student meets the citizenship or residency requirements in section 118-5. Under subsection 118-5, to become new subsection 118-5(1) under item 5, a student will meet the citizenship or residency requirements if he or she is:

·            an Australian citizen; or

·            a permanent humanitarian visa holder.

18.               This item adds a new paragraph 118-5(1)(c), which states that a student will also meet the citizenship or residency requirement if new subsection 118-5(2) applies, and inserts new subsections 118-5(2) and (3).

19.               New subsection 118-5(2) provides that a student will also meet the citizenship or residency requirements for a unit of study if he or she:

·            is a New Zealand citizen; and

·            holds a special category visa under the Migration Act 1958 ; and

·            both first began to be usually resident in Australia at least 10 years before the test day (see new subsection 118-5(2B)) and was a dependent child when he or she first began to be usually resident in Australia; and

·            has been present in Australia for a period or periods totalling 8 out of the last 10 years immediately before the test day; and

·            has been present in Australia for a period or periods totalling 18 months out of the last 2 years immediately before the test day.

20.               New subsection 118-5(3) provides that the test day (for the purposes of subsection 118-5(3)) is the earlier of the following:

·            if the student has previously made a successful request for Commonwealth assistance under Chapter 3 in respect of a unit of study that formed part of the same course of study - the day that the person first made the request; or

·            otherwise - the day when the student made the request for Commonwealth assistance with respect to the unit.

Item 7

21.               SA-HELP provides assistance for the student and amenities fee. Currently, Division 126 of the Higher Education Support Act 2003 (HESA) provides that a student is entitled to SA-HELP assistance for a unit of study if he or she meets certain criteria, including that the student meets the citizenship or residency requirements in section 126-5. Under subsection 126-5(1), a student will meet the citizenship or residency requirements if he or she is:

·            an Australian citizen; or

·            a permanent humanitarian visa holder.

22.               This item adds new subsections 126-5(1A) and (1B).

23.               New subsection 126-5(1A) provides that a student will also meet the citizenship or residency requirements for a unit of study if he or she:

·            is a New Zealand citizen; and

·            holds a special category visa under the Migration Act 1958 ; and

·            both first began to be usually resident in Australia at least 10 years before the test day (see new subsection 126-5(1B)) and was a dependent child when he or she first began to be usually resident in Australia; and

·            has been present in Australia for a period or periods totalling 8 out of the last 10 years immediately before the test day; and

·            has been present in Australia for a period or periods totalling 18 months out of the last 2 years immediately before the test day.

24.               New subsection 126-5(1B) provides that the test day (for the purposes of subsection 126-5(1A)) is the earlier of the following:

·            if the student has previously made a successful request for Commonwealth assistance under Chapter 3 in respect of a unit of study that formed part of the same course of study - the day that the person first made the request; or

·            otherwise - the day when the student made the request for Commonwealth assistance with respect to the unit.

Item 8

25.               This item makes a minor consequential renumbering amendment to subsection 126-5(2).

Item 9

26.               This item makes a minor consequential renumbering amendment to section 238-12.

Item 10

27.               Section 238-12 provides that amounts payable by the Commonwealth under the HESA are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

28.               This item amends section 238-12 by adding a provision that an amount payable by the Commonwealth as a result of the amendments made by this Bill is to be funded out of money appropriated by the Parliament for this purpose.

Item 11

29.               VET FEE-HELP provides assistance in the form of income-contingent loans for certain vocational education units of study. Currently, clause 43 of Schedule 1A to the Higher Education Support Act 2003 (HESA) provides that a student is entitled to VET FEE-HELP assistance for a unit of study if he or she meets certain criteria, including that the student meets the citizenship or residency requirements in subclause 44(1). Under this subclause, a student will meet the citizenship or residency requirements if he or she is:

·            an Australian citizen; or

·            a permanent humanitarian visa holder who will be resident in Australia for the duration of the unit.

30.               This item adds a new paragraph 44(1)(c), which states that a student will also meet the citizenship or residency requirement if new subclause 44(3) applies, and inserts new subclauses 44(3) and (4).

31.               New subclause 44(3) provides that a student will also meet the citizenship or residency requirements for a unit of study if he or she:

·            is a New Zealand citizen; and

·            holds a special category visa under the Migration Act 1958 ; and

·            both first began to be usually resident in Australia at least 10 years before the test day (see new subclause 44(4)) and was a dependent child when he or she first began to be usually resident in Australia; and

·            has been present in Australia for a period or periods totalling 8 out of the last 10 years immediately before the test day; and

·            has been present in Australia for a period or periods totalling 18 months out of the last 2 years immediately before the test day.

32.               New subclause 44(4) provides that the test day (for the purposes of subclause 44(3)) is the earlier of the following:

·            if the student has previously made a successful request for Commonwealth assistance under Chapter 3 in respect of a unit of study that formed part of the same course of study - the day that the person first made the request; or

·            otherwise - the day when the student made the request for Commonwealth assistance with respect to the unit.

Items 12 and 13

33.               These items insert a definition of dependent child into Schedule 1 to HESA. Under this definition, a child of a person is a dependent child if the child:

·            is aged under 18 years old; and

·            does not have a spouse or de facto partner (which has the meaning provided for in the Acts Interpretation Act 1901 ).

34.               A child for the purpose of this definition includes, but is not limited to, a child within the meaning of the Family Law Act 1975 .

Item 14

35.               This item is an application provision, the effect of which would apply the Schedule 1 amendments to units of study with a census date on or after Schedule 1 commences (i.e. 1 January 2016).



 

Statement of Compatibility with Human Rights

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

 

HIGHER EDUCATION SUPPORT AMENDMENT (NEW ZEALAND CITIZENS) BILL 2015

 

This 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 Bill will allow certain New Zealand citizens who are Special Category Visa holders to be eligible for HELP assistance for units of study with a census date on or after 1 January 2016.  It will improve access to higher education for New Zealand citizens who first entered Australia as minors and have spent eight of the previous ten years in the country.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

Senator Kim Carr