Higher Education Legislation Amendment Act 2004

No. 45, 2004

An Act to amend legislation relating to higher education, and for related purposes

[Assented to 21 April 2004]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Higher Education Legislation Amendment Act 2004.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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

Higher Education Funding Act 1988

1 Paragraph 17(p)

Omit “$2,990,161,000”, substitute “$2,994,968,000”.

2 Paragraph 23C(2)(l)

Omit “$1,070,788,000”, substitute “$1,077,028,000”.

Higher Education Support Act 2003

3 Paragraphs 30‑5(1)(a), (b) and (c)

Repeal the paragraphs, substitute:

(a) for the year 2005—$2,997,652,000; or

(b) for the year 2006—$3,126,480,000; or

4 Subsection 41‑45(1) (table items 1 to 3)

Repeal the items, substitute:

1	2005	$1,500,420,000
2	2006	$1,613,968,000
3	2007	$1,534,899,000

Schedule 2—Units wholly consisting of work experience in industry

Higher Education Support Act 2003

1 After section 36‑20

Insert:

36‑22 Providers to repay amounts etc. for units wholly consisting of work experience in industry in special circumstances

(1) This section applies to a person if:

(a) the person has been enrolled in a unit of study as part of a *course of study with a higher education provider as a *Commonwealth supported student; and

(b) the unit wholly consists of *work experience in industry; and

(c) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and

(d) the provider is satisfied that special circumstances apply to the person (see subsection (3)); and

(e) the person applies in writing to the provider for either or both:

(i) the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or

(ii) the remission of the person’s *HECS‑HELP debt in relation to the unit; and

(f) either:

(i) the application is made before the end of the application period under subsection (5) or (6); or

(ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.

Note: A HECS‑HELP debt of a person to whom this section applies is remitted under subsection 137‑5(5).

(2) The provider must:

(a) pay to the person an amount equal to the payment, or the sum of the payments, that the person made in relation to his or her *student contribution amount for the unit; and

(b) pay to the Commonwealth an amount equal to any *HECS‑HELP assistance to which the person was entitled for the unit.

Special circumstances

(3) For the purposes of paragraph (1)(d), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:

(a) are beyond the person’s control; and

(b) do not make their full impact on the person until on or after the *census date for the unit; and

(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.

Student Learning Entitlement Guidelines may specify circumstances

(4) If the Student Learning Entitlement Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 79‑5(1)(a), (b) or (c), any decision of a higher education provider under subsection (3) of this section must be in accordance with any such guidelines.

Note: The matters referred to in paragraphs 79‑5(1)(a), (b) and (c) (which relate to the re‑crediting of Student Learning Entitlement) are identical to the matters referred to in paragraphs (3)(a), (b) and (c) of this section.

Application period where enrolment withdrawn

(5) If:

(a) the person applying under paragraph (1)(e) has withdrawn his or her enrolment in the unit; and

(b) the higher education provider gives notice to the person that the withdrawal has taken effect;

the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

Application period in other cases

(6) If subsection (5) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.

Dealing with applications

(7) If:

(a) the application is made before the end of the application period under subsection (5) or (6); or

(b) the higher education provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period;

the provider must, as soon as practicable, consider the matter to which the application relates and notify the applicant of the decision on the application.

Statement of reasons

(8) The notice must include a statement of the reasons for the decision.

Note: Refusals of applications are reviewable under Part 5‑7.

2 Subsection 79‑5(2) (note)

After “have effect for the purposes of”, insert “subsection 36‑22(4) (repayments etc. for work experience units) and”.

3 At the end of section 137‑5

Add:

(5) A person’s *HECS‑HELP debt, in relation to a unit of study that wholly consists of *work experience in industry, is taken to be remitted if section 36‑22 applies to the person.

4 Section 206‑1 (before table item 1)

Insert:

A decision that section 36‑22 does not apply to a person

section 36‑22

the higher education provider with whom the student is enrolled in the unit

Schedule 3—Student cohorts

Higher Education Support Act 2003

1 Subparagraph 16‑30(1)(b)(ii)

Before “*student contribution amount”, insert “of the person’s”.

2 After section 19‑85

Insert:

19‑87 Determining student contribution amounts for all places in units

(1) This section applies to a unit of study:

(a) that a higher education provider provides or proposes to provide during a year; and

(b) that may form part of a *course of study in which the provider may enrol students as *Commonwealth supported students.

(2) The provider must determine a *student contribution amount for a place in the unit that is to apply to all students who may enrol in the unit during the year.

19‑88 Determining student contribution amounts for places in units for student cohorts

(1) This section applies to a unit of study:

(a) that a higher education provider provides or proposes to provide as part of a *student cohort’s *course of study; and

(b) in which the provider may enrol students as *Commonwealth supported students.

(2) In addition to the amount determined under section 19‑87, the provider may determine a *student contribution amount for a place in the unit that is only to apply to students in that *student cohort who may enrol in the unit as part of the cohort’s *course of study. However, the provider must determine the amount in the year before the cohort commences its course of study.

(3) The provider may only determine one amount for the unit to apply to students in that *student cohort.

(4) The provider may also determine conditions for that *student cohort that are to apply in relation to the *student contribution amount for a place in the unit.

3 Section 19‑90

Repeal the section, substitute:

19‑90 Determining tuition fees for all students

(1) This section applies to a unit of study that a higher education provider provides or proposes to provide during a year.

(2) The provider must determine a *fee for the unit that is to apply to all students who may enrol in the unit during the year.

(3) However, if the unit can form part of more than one *course of study, the provider may determine under subsection (2) a different *fee for the unit for each such course to apply to students who may enrol in the unit as part of that course.

19‑91 Determining tuition fees for students in student cohorts

(1) This section applies to a unit of study that a higher education provider provides or proposes to provide as part of a *student cohort’s *course of study.

(2) In addition to the amount determined under section 19‑90, the provider may determine a *fee for the unit that is only to apply to students in that *student cohort who may enrol in the unit as part of the cohort’s *course of study. However, the provider must determine the fee in the year before the cohort commences its course of study.

(3) The provider may only determine one *fee for the unit to apply to students in that *student cohort.

(4) The provider may also determine conditions for that *student cohort that are to apply in relation to the *fee for the unit.

4 Subsection 19‑95(1)

Omit “*student contribution amounts per place and *tuition fees”, substitute “*student contribution amounts for places, and *tuition fees, determined under sections 19‑87 and 19‑90”.

Note: The heading to section 19‑95 is altered by omitting “student contribution amounts per place” and substituting “student contribution amounts for places”.

5 Paragraph 19‑95(2)(a)

Omit “the *student contribution amount and the *tuition fee”, substitute “his or her *student contribution amount and tuition fee determined under sections 19‑87 and 19‑90”.

6 After section 19‑95

Insert:

19‑97 Information on student contribution amounts for places and tuition fees for student cohorts

(1) If the provider has determined, under section 19‑88 or 19‑91, *student contribution amounts for places in units, or *tuition fees, to apply to students in *student cohorts, the provider must publish, and make publicly available:

(a) sufficient information to enable a person in a student cohort to work out his or her *student contribution amount and tuition fee for each unit of study that the provider provides or is to provide as part of the cohort’s *course of study; and

(b) any conditions that are to apply in relation to the amount or fee for each unit of study for each student cohort.

(2) The information mentioned in subsection (1) for a particular unit must be published and made publicly available by the date specified in the Higher Education Provider Guidelines in the year preceding the year in which the *student cohort commences its course of study.

7 Sections 19‑100 and 19‑105

Repeal the sections, substitute:

19‑100 Limits on fees for courses of study

A higher education provider must not charge a person a *fee for a *course of study that exceeds the sum of the person’s *tuition fees for all of the units of study undertaken by the person as part of the course.

19‑101 Meaning of student cohort

A student cohort, in relation to a particular *course of study of which a unit of study forms a part, is the group of all of the students who commence the course in a particular year with a particular higher education provider.

19‑102 Meaning of fee

(1) A fee includes any tuition, examination or other fee payable to a higher education provider by a person enrolled with, or applying for enrolment with, the provider.

(2) A fee may also include any fee payable to the provider in respect of the granting of a *higher education award.

(3) A fee does not include a fee that is:

(a) payable in respect of an organisation of students, or of students and other persons; or

(b) payable in respect of the provision to students of amenities or services that are not of an academic nature; or

(d) imposed in accordance with the Commonwealth Grant Scheme Guidelines for the imposition of fees in respect of *overseas students; or

(e) payable in respect of studies (other than an *enabling course) that are not permitted to be undertaken for the purpose of obtaining a *higher education award; or

(f) determined, in accordance with guidelines issued by the Minister, to be a fee of a kind that:

(i) is incidental to studies that may be undertaken with a higher education provider; and

(ii) meets the criteria specified in the Commonwealth Grant Scheme Guidelines; or

(g) a *student contribution amount payable in respect of a student.

(4) The definition of fee in this section does not apply for the purposes of sections 104‑50 and 225‑25.

19‑105 Meaning of tuition fee

A person’s tuition fee for a unit of study is:

(a) if all of the following apply:

(i) the unit forms part of a *course of study with a higher education provider;

(ii) the person commenced that *course of study in a particular *student cohort;

(iii) the provider has determined, in accordance with section 19‑91, a *fee for the unit that applies to students in that cohort;

(iv) the person satisfies any conditions that apply to the cohort under that section in relation to the fee for the unit;

the fee determined under that section for the cohort; or

(b) if paragraph (a) does not apply and a different fee for the unit has been determined for each course of study in accordance with subsection 19‑90(3)—the fee determined for the unit for the person’s course of study; or

8 Subsection 33‑25(2) (definition of student contributions)

Omit “the sum of all of the *student contribution amounts”, substitute “the sum of all of the students’ *student contribution amounts”.

9 Paragraph 36‑20(a)

Omit “the *student contribution amount for the unit”, substitute “his or her *student contribution amount for the unit”.

10 Paragraph 36‑40(2)(c)

Before “*student contribution amount”, insert “person’s”.

11 Subsection 36‑40(2)

After “this subsection does not apply if the”, insert “person’s”.

12 Section 36‑45

Omit “charge the person a *student contribution amount for the unit”, substitute “charge, as the person’s *student contribution amount for the unit, an amount”.

13 Section 36‑45 (formula)

Repeal the formula, substitute:

14 Section 36‑50

After “80% of the”, insert “person’s”.

15 Subsection 36‑55(1)

Repeal the subsection, substitute:

Tuition fees for units of study

(1) A higher education provider must not determine, as a person’s *tuition fee for a unit of study, an amount that is less than:

(a) if paragraph (b) does not apply—the highest *student contribution amount that the provider would charge any person who is a *Commonwealth supported student in relation to the unit; or

(b) such other higher amount as is specified in the Tuition Fee Guidelines.

16 Subsection 36‑55(2)

Omit “charge as *tuition fees for the unit”, substitute “charge, as the person’s *tuition fees for the unit,”.

17 Subsection 36‑55(3)

Repeal the subsection, substitute:

(3) If a person:

(a) is enrolled in study with a higher education provider on a *non‑award basis; and

(b) could have enrolled in that study as a unit of study if the enrolment were not on a non‑award basis;

the provider must not charge, as the person’s *fees for the study, amounts that in total are less than the highest amount that the provider would charge any person:

(d) who is a *Commonwealth supported student in relation to the unit.

18 Section 87‑1

Repeal the section, substitute:

87‑1 What this Part is about

A student may be entitled to HECS‑HELP assistance for units of study for which he or she is Commonwealth supported, if certain requirements are met.

The amount of assistance to which the student may be entitled is based on his or her student contribution amounts for the units, less any up‑front payments. The assistance is paid to a higher education provider to discharge the student’s liability to pay his or her student contribution amounts.

Note: Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

19 Subparagraph 90‑1(f)(ii)

Omit “80% of the”, substitute “80% of his or her”.

20 Paragraph 93‑1(a)

Omit “the *student contribution amount”, substitute “his or her *student contribution amount”.

21 Subsection 93‑5(1)

Repeal the subsection, substitute:

(1) A person’s student contribution amount for a unit of study is the amount worked out as follows:

where the person’s student contribution amount for a place in the unit is:

(a) if all of the following apply:

(i) the unit forms part of a *course of study with a higher education provider;

(ii) the person commenced that *course of study in a particular *student cohort;

(iii) the provider has determined, in accordance with section 19‑88, a student contribution amount for a place in the unit that applies to students in that cohort;

(iv) the person satisfies any conditions that apply to the cohort under that section in relation to the student contribution amount for a place in the unit;

the amount determined under that section for the cohort; and

(b) in all other cases—the student contribution amount for a place in the unit determined under subsection 19‑87(2).

22 Subsection 93‑5(2)

Repeal the subsection, substitute:

(2) A person’s *student contribution amount for a place in a unit must not exceed the *maximum student contribution amount for a place in the unit.

23 Subsection 93‑5(3)

Omit “The student contribution amount for a unit of study is nil if it is undertaken”, substitute “A person’s student contribution amount for a unit of study is nil if the person undertakes the unit”.

24 Section 93‑10

Omit “maximum student contribution amount per place for”, substitute “maximum student contribution amount for a place in”.

Note: The heading to section 93‑10 is replaced by the heading “Maximum student contribution amounts for places”.

25 Section 93‑10 (table heading)

Omit “Maximum student contribution amounts per place”, substitute “Maximum student contribution amounts for places”.

26 Section 93‑10 (heading to column 3 of the table)

Omit “Maximum student contribution amount per place”, substitute “Maximum student contribution amount for a place”.

27 Section 93‑10 (note 2)

Omit “Maximum student contribution amounts per place”, substitute “Maximum student contribution amounts for places”.

28 Subsection 93‑15(1)

Repeal the subsection, substitute:

(1) An up‑front payment, in relation to a unit of study for which a person is liable to pay his or her *student contribution amount, is a payment of part of the student’s student contribution amount for the unit, other than a payment of *HECS‑HELP assistance under this Part.

29 Subsection 93‑15(3)

Repeal the subsection, substitute:

(3) A payment made in respect of a person is not an up‑front payment to the extent that:

(a) the payment; or

(b) if other up‑front payments have already been made in respect of the person in relation to the unit—the sum of the payment and all of those other up‑front payments;

exceeds 80% of the person’s *student contribution amount for the unit.

Note 1: The Commonwealth pays 1/4 of any up‑front payments in respect of a student if the total amount of the up‑front payments, for the unit and the student’s other units with the same census date, is 80% of the sum of his or her student contribution amounts for all of his or her units or is $500 or more: see sections 96‑5 and 96‑10.

Note 2: It is a condition of grants under Part 2‑2 that a higher education provider not accept an up‑front payment of more than 80% of a student’s student contribution amount from a student who is entitled to HECS‑HELP assistance: see section 36‑50.

30 Paragraph 96‑1(b)

Omit “liability to pay the”, substitute “liability to pay his or her”.

31 Paragraph 96‑5(1)(c)

After “up‑front payments made for all of the”, insert “student’s”.

32 Paragraph 96‑5(1)(c)

Omit “the sum of the *student contribution amounts for all of the units”, substitute “the sum of the student’s *student contribution amounts for all of his or her units”.

33 Paragraph 96‑5(2)(b)

Omit “liability to pay the”, substitute “liability to pay his or her”.

34 Subsection 96‑5(3)

Omit “liability to pay the”, substitute “liability to pay his or her”.

35 Paragraph 96‑10(c)

After “up‑front payments made for all of the”, insert “student’s”.

36 Paragraph 96‑10(c)

Omit “the sum of the *student contribution amounts for all of the units”, substitute “the sum of the student’s *student contribution amounts for all of his or her units”.

37 Section 96‑10

Omit “the student’s liability to pay the student contribution amount for the unit”, substitute “the student’s liability to pay his or her student contribution amount for the unit”.

38 Section 96‑10 (note)

Omit “the student contribution amounts for the unit and other units”, substitute “a student’s student contribution amount for the unit and for the student’s other units”.

39 Section 101‑1

Repeal the section, substitute:

101‑1 What this Part is about

A student may be entitled to FEE‑HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met.

The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is paid to a higher education provider to discharge the student’s liability to pay his or her tuition fees.

Note: Amounts of assistance under this Part may form part of a person’s HELP debts that the Commonwealth recovers under Part 4‑2.

40 Paragraph 107‑1(a)

Omit “the *tuition fee”, substitute “the student’s *tuition fee”.

41 Subsection 107‑5(1)

Repeal the subsection, substitute:

(1) An up‑front payment, in relation to a unit of study for which a student is liable to pay a *tuition fee, is a payment of all or part of the student’s tuition fee for the unit, other than a payment of *FEE‑HELP assistance under this Part.

42 Subsection 107‑10(2) (example)

Repeal the example, substitute:

Example: Kath has a FEE‑HELP balance of $2,000, and is enrolled in 4 units with the same census date. Kath’s tuition fee for each unit is $600. The total amount of FEE‑HELP assistance to which Kath is entitled for the units is $2,000, even though the total amount of her tuition fees for the units is $2,400.

43 Paragraph 110‑1(b)

Omit “the *tuition fee”, substitute “his or her *tuition fee”.

44 Paragraph 137‑5(1)(b)

Omit “liability to pay the”, substitute “liability to pay his or her”.

45 Subsection 137‑5(3)

Repeal the subsection, substitute:

When HECS‑HELP debts are incurred

(3) A *HECS‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *student contribution amount for the unit.

46 Paragraph 137‑10(1)(b)

Omit “the *tuition fee”, substitute “his or her *tuition fee”.

47 Subsection 137‑10(3)

Repeal the subsection, substitute:

When FEE‑HELP debts are incurred

(3) A *FEE‑HELP debt is taken to have been incurred by a person immediately after the *census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s *tuition fee for the unit.

48 Paragraph 169‑15(1)(a)

Omit “the *student contribution amount”, substitute “the student’s *student contribution amount”.

49 Paragraph 169‑15(1)(b)

Omit “any *tuition fee”, substitute “any of his or her *tuition fee or any other *fee”.

50 Paragraph 169‑15(2)(a)

Omit “the *tuition fee”, substitute “the student’s *tuition fee”.

51 Paragraph 169‑15(2)(b)

Omit “any other tuition fee, or any *student contribution amount”, substitute “any other *fee, or any of his or her *student contribution amount”.

52 Subsection 169‑15(3)

Omit “payment of a *student contribution amount or a”, substitute “payment of his or her *student contribution amount or”.

53 Subsection 169‑20(1)

Before “*student contribution amounts”, insert “their”.

54 Subsection 169‑20(2)

Before “*student contribution amounts”, insert “their”.

55 Paragraph 193‑1(5)(b)

After “80% of the”, insert “person’s”.

56 Section 198‑5 (cell at table item 2, column headed “Amounts:”)

Omit “*Maximum student contribution amounts per place”, substitute “*Maximum student contribution amounts for places”.

57 Clause 1 of Schedule 1

Insert:

fee has the meaning given by section 19‑102.

58 Clause 1 of Schedule 1 (definition of maximum student contribution amount per place)

Repeal the definition.

59 Clause 1 of Schedule 1

Insert:

maximum student contribution amount for a place has the meaning given by section 93‑10.

60 Clause 1 of Schedule 1

Insert:

student cohort has the meaning given by section 19‑101.

61 Clause 1 of Schedule 1 (definition of student contribution amount per place)

Repeal the definition.

62 Clause 1 of Schedule 1

Insert:

student contribution amount for a place has the meaning given by subsection 93‑5(1).

Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003

63 Paragraph 1(1)(k) of Schedule 1

Before “student contribution amount” (first occurring), insert “person’s”.

64 Paragraph 1(1)(k) of Schedule 1

Omit “maximum student contribution amount per place for”, substitute “maximum student contribution amount for a place in”.

65 Item 3 of Schedule 1 (heading)

Repeal the heading, substitute:

3 Maximum student contribution amounts for places

66 Subitem 3(1) of Schedule 1

Omit “maximum student contribution amount per place for”, substitute “maximum student contribution amount for a place in”.

67 Subitem 3(2) of Schedule 1

Omit “maximum student contribution amount per place for”, substitute “maximum student contribution amount for a place in”.

68 Subitem 3(2) of Schedule 1 (table heading)

Omit “Maximum amounts per place”, substitute “Maximum amounts for places”.

69 Subitem 3(2) of Schedule 1 (heading to column 3 of the table)

Omit “Maximum student contribution amount per place”, substitute “Maximum student contribution amount for a place”.

70 Subitem 3(3) of Schedule 1

Omit “maximum student contribution amount per place”, substitute “maximum student contribution amount for a place”.

Schedule 4—The University of Notre Dame Australia

Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003

1 Part 4 of Schedule 1

Repeal the Part.

Schedule 5—Miscellaneous amendments

Higher Education Support Act 2003

1 Subsection 73‑10(1)

Repeal the subsection, substitute:

(1) An EFTSL is an equivalent full‑time *student load for a year. It is a measure, in respect of a *course of study, of the study load for a year of a student undertaking that course of study on a full‑time basis.

2 At the end of Division 187

Add:

187‑5 Student to notify tax file number when issued

If a student *meets the tax file number requirements for the assistance under paragraph 187‑1(1)(b):

(a) the student must notify his or her *tax file number to an *appropriate officer of the higher education provider within 21 days from the day on which the *Commissioner issues the tax file number to the student; and

(b) the provider must be satisfied (in accordance with subsection 187‑1(4)) that this number is a valid *tax file number.

Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003

3 Subparagraph 1(1)(f)(ii) of Schedule 1

Omit “paragraph 90‑1(1)(a) or (c), or paragraphs 90‑1(1)(a) and (c),”, substitute “paragraph 90‑1(a) or (c), or paragraphs 90‑1(a) and (c),”.

Note: This item fixes an incorrect cross‑reference.

4 Paragraph 6(i) of Schedule 1

Omit “for the unit; and”, substitute “for the unit.”.

5 Paragraph 6(j) of Schedule 1

Repeal the paragraph.

6 Item 6 of Schedule 1 (note)

Repeal the note.

7 Paragraph 11A(1)(b) of Schedule 1

Omit “HECS‑HELP”, substitute “HELP”.

8 Subitem 11A(1) of Schedule 1

Omit “accumulated HECS‑HELP”, substitute “accumulated HELP”.

9 Subitem 11A(2) of Schedule 1

Repeal the subitem.

10 After item 21 of Schedule 1

Insert:

21A Increases in assistance in 2005 for higher education providers meeting certain requirements

For the purposes of paragraph 33‑15(1)(c) of the Higher Education Support Act 2003, the Minister is taken to be satisfied that the provider met the requirements in paragraph 33‑15(1)(a) of that Act, as at a date in 2004, specified in the Commonwealth Grant Scheme Guidelines, if:

(a) the grant year is the year 2005; and

(b) the Minister is satisfied that the provider met at least some of those requirements by the specified date; and