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Higher Education Legislation Amendment (Voluntary Student Services and Amenities Fee) Bill 2019

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2016-2017-2018-2019

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

Higher Education Legislation Amendment (Voluntary Student Services and Amenities Fee) Bill 2019

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of Senator McGrath)



Higher Education Legislation Amendment (Voluntary Student Services and Amenities Fee) Bill 2019

 

GENERAL OUTLINE

This Bill seeks to amend the Higher Education Support Act 2003 (the Act) to remove amendments to the Act that provide for the introduction and levy of the student services and amenities fee. The Bill will have the effect of reversing the amendments made by the Higher Education Legislation Amendment (Student Services and Amenities) Act 2011 to the Act. This Bill will eliminate the compulsory student services and amenities fee levied on a person enrolled, or seeking to enrol, with a higher education provider. This Bill will instead provide legislative freedom for higher education providers to levy a student services and amenities fee, to be paid on a voluntary basis only.

In addition, this Bill will repeal the Services and Amenities-HELP (SA-HELP) component of the Higher Education Loan Program, as the option for students to access a government funded loan to pay for the compulsory student services and amenities fee will no longer be required.

Under current legislation, the student services and amenities fee is levied regardless of students’ need, willingness or ability to access the services and activities they are paying for. This Bill will remedy the indiscriminate nature of the current legislation by removing the compulsory aspect of the student services and amenities fee.  

This Bill will not restrict higher education providers from requesting students make voluntary contributions to pay for services or amenities.

 

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                        This clause is a formal provision specifying that the short title of the Act is the Higher Education Legislation Amendment (Voluntary Student Services and Amenities Fee) Act 2019 .

Clause 2 - Commencement

2.                        The table in Clause 2 provides that sections 1 to 3 of the Act will commence the day the Act receives Royal Assent, and that Schedule 1 will commence on 31 May 2019.

Clause 3 - Schedules



3.                        Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.



Schedule 1 - Amendments

 

Higher Education Support Act 2003

 

Items 1 and 2 - paragraph 3-10(c), paragraph 3-10(d)

 

4.                        Item 2 removes paragraph 3-10(d) from section 3-10. Section 3-10 lists the assistance provided to students contained in Chapter 3 of the Act. Removing paragraph (d) eliminates SA-HELP assistance from the list of assistance provided under Chapter 3 of the Act. Item 1 amends paragraph 3-10(c) so that 3-10 ends at (c).

 

Item 3 - Subsection 5-1(2) (table item 5A)

 

5.                        Item 3 amends the table titled ‘Application of Act to Table C providers’ contained in subsection 5-1(2) to remove references to SA-HELP assistance. This is a consequential amendment.

 

Item 4 - Subsections 19-37(4), (5) and (6)

 

6.                        Item 4removes subsections 19-37(4), (5) and (6) from section 19-37.

Section 19-37 contains rules concerning higher education providers requiring membership of certain organisations, or the payments of certain amounts.

 

7.                        Subsection 19-37(2) provides that a higher education provider must not require a person enrolled, or seeking to enrol with, the provider to pay the provider or any other entity an amount for the provision to students of an amenity, facility or service that is not of an academic nature, unless the person has chosen to use the amenity, facility or services. Subsection 19-37(4) provides for an exception to subsection (2) and allows for education providers to require the payment of the student services and amenities fee.

 

8.                        Subsection 19-37(5) defines student services and amenities fee, including the amount and future indexation of the fee.

 

9.                        Subsection 19-37(6) imposes obligations on higher education providers who require the payment of a student services and amenities fee.

 

10.                    The removal of these subsections is core to the intent of this Bill, which is to abolish the compulsory student tax and supporting framework.

 

Item 5 - Section 19-38

 

11.                    Item 5removes the section 19-38 from the Act. Section 19-38 sets out guidelines on how higher education providers can spend the student services and amenities fee they receive. The removal of this section is a consequential amendment following from item 4.

 

Item 6 - Section 19-67

 

12.                    Section 19-67 provides that a higher education provider that receives a grant under Part 2-2 of the Act—that is, the Commonwealth Grant Scheme—must comply with the requirements of the student services and amenities representation and advocacy guidelines (which are made by the Minister under section 238-10 of the Act). The removal of this section from the Act is a consequential amendment stemming from the repeal of subsections 19-37(4), (5) and (6).



Items 7, 8 and 9 - Section 65-1

 

13.                    These amendments are consequential amendments that remove references to the SA-HELP assistance in section 65-1, bringing the Act in line with the substantive amendment of Part 3-5 of the Act (item 10 of this Bill). Section 65-1 summarises Chapter 3 of the Act, which contains the provisions relating to assistance available to students.

 

Item 10 - Part 3-5

 

14.                    Part 3-5 contains the substantive provisions relating to SA-HELP assistance. A student may be entitled to SA - HELP assistance for a student services and amenities fee imposed on him or her by a higher education provider, if certain requirements are met.

 

15.                    The amount of the assistance is the amount of the fee, less any amounts of the fee paid on or before the day the fee is payable (except any SA - HELP assistance paid under this Part). The assistance is paid to the provider to discharge the student’s liability to pay the fee.

 

16.                    As the student services and amenities fee is no longer compulsorily imposed, there is no requirement for SA-HELP assistance to be provided by the government to cover student services and amenities fees.

 

Item 11 - Section 134-1

 

17.                    Item 11 amends section 134-1 to remove references to SA-HELP. This is a consequential amendment.



Item 12 - Paragraph 137-1(ca)

 

18.                    Item 12 amends section 137-1 to remove SA-HELP debts from the definition of HELP debts.

 

Item 13 - Section 137-16

 

19.                    Item 13 amends the Act to remove section 137-16, which provides for when SA-HELP debts occur.

 

Items 14 and 15 - Subsection 140-5(1) (method statement, step 2)

 

20.                    Items 14 and 15remove references to SA-HELP in relation to calculating a former accumulated HELP debt.

Items 16 and 17 - Subsection 140-25(1A) (method statement, step 1)

21.                    Items 16 and 17 Remove references to SA-HELP assistance in relation to accumulated HELP debts.

Items 18 and 19 - Paragraph 154-55(1)(a)

22.                    Item 19 amends paragraph 154-55(1)(a) to remove subparagraph (iii), which includes a reference to SA-HELP and extends the provisions which require higher education providers to give information in their possession relating to students to the Commissioner (if asked by the Commissioner) about students who have applied for SA-HELP assistance.

 

Item 20 - Subparagraph 169-5(1)(b)(i)

 

23.                    Item 20 amends subparagraph 169-5(1)(b)(i) to remove references to student services and amenities fees being imposed on students by the provider.

 

Items 21 and 22 - Section 169-30

24.                    Items 21 and 22 amend subsection 169-30 to remove subsection (2), thereby removing the requirement for communication between the Commonwealth and a provider concerning a person who has had a student services amenities fees imposed on them, and has indicated they are seeking SA-HELP assistance.

Items 23, 24 and 25 - Subsections 169-35(1), 169-35(1)(b), and 169-35(2)

25.                    Item 24 amends paragraph 169-35(1)(b) to remove reference to SA-HELP assistance. Item 25 removes subsection 169-35(2), thereby repealing allowance of a 6 week cut off for a student to inform their higher education provider if their request for Commonwealth assistance relating to SA-HELP was incorrect.

Items 26, 27, 28 - Subsections 187-1(1)(heading), 187(1) and (1A), 187-1(3)

26.                    These items are technical amendments relating to item 29. Amends the section heading and paragraphs to remove references to SA-HELP assistance.

Item 29 - Subsections 187-1(3B) to (3E)

27.                    Item 29 amends section 187-1 to remove subsections (3B) to (3E). These subsections require students to provide their tax file number for eligibility to apply for SA-HELP assistance. This requisite is unnecessary following item 10.

Items 30 and 31 - Paragraph 187-1(4)(a) and subsection 187-1(5)

28.                    Items 30 and 31 are consequential amendments relating to item 29.

Item 32 - Subsections 193-1(4A) and (4B)

29.                    Item 32 removes subsections which provide that a higher education provider must notify in writing how to meet the tax file number requirements (amended in item 29).

Item 33 - Paragraph 193-1(5)(a)

30.                    Item 33 is a consequential amendment which removes references to SA-HELP assistance.

Item 34 - Section 193-15

31.                    Item 34 removes section 193-15, which provides that there is no entitlement to SA-HELP assistance for students without a valid tax file number. Consequential amendment.

Item 35 - Subsection 198-5(1) (table item 1A)

32.                    Item 35 amends the table in section 198-5, which sets out the amounts under the Act that are to be indexed, removing the student services and amenities fee as an amount to be indexed.

Item 36 - Subsection 238-10(1) (table item 1, column headed “Chapter/Part/section”)

33.                    Item 36 amends item 1 of the table in subsection 238-10(1) to remove “section 19-37”. This removes the legislative basis for the Minister to make Administration Guidelines providing for matters concerning the student services and amenities fee.

Item 37 - Subsection 238-10(1) (table item 10A)

34.                    Item 37 removes reference to the Student Services, Amenities, Representation and Advocacy Guidelines from the table in section 238-10, which provides that the Minister may, by legislative instrument, make Guidelines specified in the table. This removes the legislative basis for the Minister to make the Student Services, Amenities, Representation and Advocacy Guidelines.

Item 38 - Subclause 1(1) of Schedule 1 (paragraph (ba) of the definition of request for Commonwealth assistance )

35.                    Item 38 removes paragraph (ba) from the definition of request for Commonwealth assistance , removing the student services and amenities fee from the definition.

Items 39, 40 and 41 - Subclause 1(1) of Schedule 1 (definition of SA-HELP assistance), (definition of SA-HELP debt ), and (definition of student services and amenities fee )

36.                    These items remove definitions relating to SA-HELP assistance, SA-HELP debt and the student services and amenities fee. These are consequential amendments.

Item 42 - Transitional rules

37.                    This Bill takes the approach of reversing the amendments made by the Higher Education Legislation Amendment (Student Services and Amenities) Act 2011 . This requires a number of specific transitional provisions to deal with issues such as the status of SA-HELP debts incurred under the repealed provisions. Designing these transitional requires in-depth knowledge of how higher education providers charge student services and amenities fees and how the ATO administers SA-HELP debts, and requires providers and the ATO to be consulted.

 

38.                    Because of this, item 42 of Schedule 1 provides for transitional matters to be dealt with by a legislative instrument made by the Minister.



Statement of Compatibility with Human Rights

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

 

Higher Education Legislation Amendment (Voluntary Student Services and Amenities Fee) Bill 2019

 

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 this Bill is to amend the Higher Education Support Act 2003 to abolish the student services and amenities fee, and the surrounding SA-HELP framework. This will put an end to tertiary students being forced to contribute monies for services or amenities, regardless of their need, willingness or ability to access said services or amenities.

This Bill does not restrict higher education providers from requesting students make voluntary contributions to pay for services or amenities.



Human rights implications

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

 

Conclusion

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

Senator James McGrath