Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (104 of 2011)

Schedule 2   Amendments relating to student learning entitlement

Part 1   Amendments

Higher Education Support Act 2003

9   Sections 36-20, 36-22, 36-22A and 36-23

Repeal the sections, substitute:

36-20 Providers to repay amounts - special circumstances

(1) A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person if:

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

(b) the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; 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 section 36-21); and

(e) the person applies in writing to that 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 section 36-22; 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 1: A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(4).

Note 2: A decision that this section does not apply to a person is reviewable under Part 5-7.

(2) If the provider determines that this section applies to a person, 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.

(3) Subsection (2) does not apply to the provider if:

(a) the person enrolled in the unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements; or

(b) it is determined that section 36-24A applies to the person.

(4) The Higher Education Provider Guidelines may, in setting out the *tuition assurance requirements, specify, in relation to circumstances to which paragraph (3)(a) applies:

(a) the amount (if any) that is to be paid to the person; and

(b) the amount (if any) that is to be paid to the Commonwealth; and

(c) the person (if any) who is to pay the amounts.

(5) If a determination made under subsection (1) is made in writing, the determination is not a legislative instrument.

36-21 Special circumstances

(1) For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider 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 of study; 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.

(2) The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.

Note: Guidelines made for the purposes of this subsection also have effect for the purposes of subsection 104-30(2) (re-crediting a person’s FEE-HELP balance).

36-22 Application period

(1) For the purposes of subparagraph 36-20(1)(f)(i), if:

(a) the person has withdrawn his or her enrolment in the unit of study; 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.

(2) If subsection (1) 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.

36-23 Dealing with applications

(1) If:

(a) the application under paragraph 36-20(1)(e) is made before the end of the application period under section 36-22; 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.

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

36-24A Providers to repay amounts - provider ceases to provide course

(1) A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person if:

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

(b) the unit would, if completed, form part of a *course of study undertaken with the provider; 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 because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and

(d) the *tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and

(e) the person chose the option designated under the tuition assurance requirements as student contribution/tuition fee repayment in relation to the unit.

Note: A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(4).

(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.

(3) If a determination made under subsection (1) is made in writing, the determination is not a legislative instrument.

36-24B Providers to repay amounts - no tax file numbers

(1) This section applies to a person if a higher education provider cancels the person’s enrolment in a unit of study under subsection 193-5(1).

Note: A HECS-HELP debt of a person to whom this section applies is remitted under subsection 137-5(4).

(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.

36-24C Secretary may act if provider is unable to

If a higher education provider is unable to act for one or more of the purposes of subsection 36-20(1), section 36-21, 36-22 or 36-23 or subsection 36-24A(1), the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.