Explanatory Memorandum
(Circulated by authority of the Minister for Education, Science and Training, the Honourable Dr Brendan Nelson MP)Schedule 1 - Overseas higher education providers
Higher Education Support Act 2003
Item 1 inserts a new Division 5 in Chapter 1 of the Act to deal with the application of the Act to Table C providers.
Proposed section 5-1 includes a table setting out the provisions of the Act that apply to Table C providers. Proposed subsection 5-1(1) states that the provisions of the Act not listed in the table in subsection 5-1(2) or in subsection 5-1(4) apply to a Table C provider, the Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
Proposed subsection 5-1(2) deals with provisions that are modified in their application to Table C providers. A table in this subsection sets out the provisions and the way in which they apply.
Table item 1 provides that Subdivision 19-C of the Act, which deals with quality requirements, applies to the Australian branch of a Table C provider. However, an audit by a quality auditing body may need to assess the overall performance of the provider as it relates to that branch.
Table items 2 and 3 provide that Subdivision 19-C (fairness requirements) and Subdivision 19-F (contribution and fee requirements) apply to the Australian branch of a Table C provider and to students undertaking or proposing to undertake unites of study at that branch.
Table item 4 indicates that Part 3-3 (FEE-HELP assistance) applies to eligible students of the Australian branch of a Tables C provider, but only for units of study in which the students are enrolled at the Australian branch.
Table item 5 provides that Part 3-4 (OS-HELP assistance) applies to eligible students of the Australian branch of the provider.
Table item 6 provides that Chapter 4 (Repayment of loans) applies to the Australian branch of the provider and to students undertaking, or students who undertook, units of study at that branch.
Table items 7 to 11 provides that Part 5-2 (Administrative requirements on higher education providers); Part 5-3 (Electronic communications); Part 5-4 (Protection of personal information); Part 5-5 (Tax file numbers) and Part 5-7 (Review of decisions) apply to the Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
Proposed subsection 5-1(3) and 5-1(4) provide that Part 2-2 (Commonwealth Grant Scheme); Part 2-3 (Other Grants); Part 2-4 (Grants for Commonwealth scholarships); Part 2-5 (Reduction and repayment of grants) and Part 3-2 (HECS-HELP assistance) do not apply to a Table C provider, the Australian branch of the provider or to students in their capacity as students of that provider or of the Australian branch of that provider.
Section 13-1 sets out what Part 2-1 of the Act is about and indicates that a body generally has to be approved as a higher education provider before it can receive grants, or its students can receive assistance under the Act. Listed providers (universities and certain self-accrediting providers) have that approval upon commencement of the Act. Bodies that do not have automatic approval, or whose approval has been revoked, have to apply for approval under the Act. Item 2 amends section 13-1 to make it clear that Table C providers have approval to operate as higher education providers under the Act from the time they are included in Table C.
Item 3 - After subsection 16-5(1)
Section 16-5 deals with when a body becomes or ceases to be a higher education provider. Item 3 inserts proposed subsection 16-5(1A) which provides that a Table C provider is taken to be approved as a higher education provider from the commencement of the provision that included the provider in Table C in section 16-22.
Items 4 and 5 - Paragraphs 16-5(2)(a) and (b)
Subsection 16-5(2) provides that a body corporate that is not a listed provider, or that is a listed provider that has previously ceased to be a higher education provider, becomes a provider if approved by the Minister under section 16-25. Paragraph 16-25(2)(b) provides that a higher education provider ceases to be a provider if its approval is revoked or suspended under Division 22.
Items 4 and 5 amend paragraphs 16-5(2)(a) and (b) to make it clear that a body corporate that is not a listed provider or a Table C provider, or that is a listed provider or a Table C provider that has previously ceased to be a higher education provider, becomes a provider if approved by the Minister under section 16-25.
Section 16-20 sets out the Table B higher education providers. Item 6 inserts proposed section 16-22 which sets out Table C providers. The table included provides that Carnegie Mellon University, a non-profit organisation established under Pennsylvania law is a Table C provider.
Proposed subsection 16-22(2) provides that a body is not a Table C provider if its approval as a higher education provider is revoked or suspended. The note at the end of this proposed section makes it clear that a Table C provider is not entitled to receive a grant under Chapter 2 of the Act, as set out in section 5-1.
Section 19-65 sets out the basic compliance requirements that must be met by higher education providers. Item 7 amends subsection 19-65(1) to clarify that a higher education provider must comply with the requirements of the Act and the regulations, and the requirements of the Guidelines made under section 238-10 that apply to the provider.
Items 8 to 13 - sections 27-1, 41-1, 46-1, 51-1 and 87-1
Items 8, 9, 10, 11, and 13 add a note at the end of sections 27-1, 41-1, 46-1, 51-1 and 87-1 respectively to make it clear that Part 2-2 (Commonwealth Grant Scheme); Part 2-3 (Other Grants); Part 2-4 (Grants for Commonwealth scholarships); Part 2-5 (Reduction and repayment of grants) and Part 3-2 (HECS-HELP assistance) do not apply to a Table C provider.
Item 12 makes a technical amendment as a consequence of the amendment made by item 13.
Item 14 - After subsection 238-10(1)
Section 238-10 provides that the Minister may make guidelines specified in the table set out in that section for matters required or permitted or necessary or convenient to be provided to give effect to the relevant Chapter, Part or section of the Act. Item 14 inserts proposed subsection 238-10(1A) which provides that the Minister may, by legislative instrument, make the Guidelines for Overseas Higher Education Providers, specifying additional requirements or conditions applicable to Table C providers.
Item 15 - Clause 1 of Schedule 1
Clause 1 of Schedule 1 sets out definitions that apply to the Act. Item 15 insets a definition of Australian branch of a Table C provider, which means:
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- if that provider conducts its higher education operations in Australia through a branch of the body corporate that is listed in Table C in section 16-23 - that branch; or
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- otherwise-the body corporate through which that provider conducts its higher education operations in Australia.
Item 16 - Clause 1 of Schedule 1
Inserts a definition of Table C provider , which means a body listed in Table C in section 16-22.